# Amicus Curiae Brief — Supreme Court of Va. v. Friedman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0712%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1988 - **Citation:** 487 U.S. 59 ## Text No. 87-399 | IN THE Supreme Court of the United OctotreR TERM, 1987 SUPREMF: COURT OF VIRGINIA, and its Clerk, DAVID B. BEACH, Appellants, v. MYRNA E. FRIEDMAN, Appellee. ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF OF THE NEW YORK STATE BAR ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF APPELLEE MARYANN SACCOMANDO FREEDMAN, Esq. President, New York State Bar Association MonroE H. FREEDMAN, Esq. One Elk Street Albany, New York 12207 (518) 463-3200 Ronap J. Levine, Esq. 2 Park Avenue New York, New York 10016 (212) 684-1400 Counsel of Record ' TABLE OF CONTENTS Page TABLE OF AUTHORITIEFS................... iii INTEREST OF AMICUS CURIAE ............. l I cap ach een scscisvuneaxess 2 SUMMARY OF ARGUMENT.................. 2 I nic oa chvcnehbinvdasnoune sens 3 THE PRIVILEGES AND IMMUNITIES CLAUSE PREVENTS A STATE FROM USING A BAR EXAMINATION TO PUT AN UNREASONABLE BURDEN ON PRACTICE BY OUT-OF-STATE ATTORNEYS........... 3 at ARE SREP Sake ee ee ne 6 TABLE OF AUTHORITIES Cases: Frazier v. Heebe, 107 S.Ct. 2607 (1987)......... Friedman v. Supreme Court of Virginia, 822 F.2d 423 (4th Cir.), prob. juris. noted, Supreme Court of Virginia v. Friedman, 108 S.Ct. 283 tie cke esses neecce sce. Supreme Court of New Hampshire v. Piper, 470 re Statutes and Rules: New York State Court of Appeals Rule § 520.9... Other Authorities: Hafter, Toward the Multistate Practice of Law Through Admission by Reciprocity, 53 Miss. ruta cheese se cedeceuses« Lauter, Waiving Into Another Bar Isn't Always a Real Breeze, National Law Journal, Mar. 17, ec ceunecndeees Page No. 87-399 IN THE Supreme Court of the Wniixd States Ocroser TERM, 1987 SUPREME COURT OF VIRGINIA, and its Clerk, DAVID B. BEACH, Appellants, Vv. MYRNA E. FRIEDMAN, Appellee. ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF OF THE NEW YORK STATE BAR ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF APPELLEE Amicus Curiae, New York State Bar Association, respectful- ly requests this Court to affirm the decision of the Fourth Cir- cuit Court of Appeals. INTEREST OF AMICUS CURIAE Amicus Curiae, the New York State Bar Association (“NYSBA’”), is a voluntary bar association primarily composed of members of the bar of the State of New York. The NYSBA has approximately 47,000 members, including lawyers who are engaged in the practice of law in the private and public sec- tors, as well as judges, professors and law students. The NYSBA seeks to promote rules and procedures concern- ing admission to the bar which are fair and equitable, while maintaining a high standard of competence. The rules of ad- mission in New York State permit attorneys who have practic- ed for a fixed number of years in another state to join the bar of the State of New York by motion and without having to take a bar examination. New York State Court of Appeals Rule § 520.9. The NYSBA believes that the bar of the State of New York has flourished under its open admission rules, and the NYSBA is opposed to barriers to admission not only in New York, but in other states as well in which New York attorneys may wish to practice. The challenged requirements are another example of artificial barriers to bar admission which promote the economic interests of local lawyers at the expense of rational and just bar admis- sion. This case is therefore of great interest to the members of the NYSBA. JURISDICTION The jurisdictional grounds are fully set forth in the Brief of the Appellee and need not be set forth here again in accordance with Rule 36.5 of this Court. SUMMARY OF ARGUMENT The nature and reality of the practice of law in the United States is that an attorney often needs to represent clients in a number of states, and may wish to establish offices in two or more states. The courts below correctly set aside Rule 1A:1(c) as unconstitutional discrimination. Virginia’s Rule employs the bar examination requirement as an artificial and unnecessary barrier to the admission of nonresident attorneys. Virginia discourages experienced out-of-state attorneys from joining its bar by requiring that the experienced attorneys take another bar examination, or move into the state and practice there on a full-time basis. The Appellee has ‘ully briefed the issues surrounding the vioia- tion of the Privileges and Immunities Clause. The NYSBA wishes to emphasize to the Court that the bar examination require- ment has been used by some states as an improper mechanism to limit competition by experienced attorneys from other states. ARGUMENT THE PRIVILEGES AND IMMUNITIES CLAUSE PREVENTS A STATE FROM USING A BAR EX- AMINATION TO PUT AN UNREASONABLE BURDEN ON PRACTICE BY OUT-OF-STATE ATTORNEYS According to the Appellants, twenty-three jurisdictions recognize that it is not necessary to re-examine lawyers qualified in other states in order to admit them to the bar. Appellants’ Brief, at page 9. These jurisdictions, which include New York, have found that attorneys who have demonstrated their profes- sional abilities in practice in other jurisdictions are fully com- petent to practice law without being subjected to the needless burden of a bar examination. Experienced attorneys should be admitted by motion no mat- ter where they reside or where they have practiced. There has been a marked trend toward uniformity of both substantive and procedural laws throughout the United States. All states, except one, have adopted the Uniform Commercial Code. Model codes, model rules and the Restatements have become a common language for all lawyers. Federal law, whether it be tax, criminal, labor or environmental, is a significant part of the common prac- tice of all lawyers. Whether it is due to a lawyer's decision to move to another state, or an out-of-state client or matter, today’s lawyer may well represent clients in states other than those in which he or she began practice. Indeed, the Court has recognized the value of a nonlocal lawyer to a client: A client may have a number of excellent reasons to select a nonlocal lawyer: his or her regular lawyers most familiar with the legal issues may be nonlocal; a nonresident lawyer may practice a specialty not available locally; or a client may be involved in an unpopular cause with which local lawyers are reluc- tant to be associated. See Piper, 470 U.S., at 281, 84 L.Ed. 2d 205, 105 S.Ct. 1272. Frazier v. Heete, 107 S.Ct. 2607, 2614 n. 12 (1987). Pro hac vice admission is often not a satisfactory alternative to plenary admission. Such admission applies only to court ap- pearances, not to counseling. Further, states have made pro hac vice admission a difficult, if not impossible, undertaking. The Court has observed that pro hac vice admission is purely discre- tionary and not a freely available alternative. Frazier v. Heebe, 107 S.Ct. 2607, 2614 n. 13 (1987); Supreme Court of New Hamp- shire v. Piper, 470 U.S. 274, 277 n. 2 (1985). As the Fourth Circuit held, the costs, time and delay involv- ed in taking a bar examination impose a heavy burden on the out-of-state practitioner. Friedman v. Supreme Court of Virginia, 822 F.2d 423, 427 (4th Cir.), prob. juris. noted, Supreme Court of Virginia v. Friedman, 108 S.Ct. 283 (1987). The bar examination has been employed as a form of economic protectionism to deter out-of-state attorneys from entering the local legal markets. Id. See also Supreme Court of New Hamp- shire v. Piper, 470 U.S. 274, 285 n. 18 (1985) (“ “Many of the states that have erected fences against out-of-state lawyers have done so primarily to protect their own lawyers from professional competition’ ”). Indeed, the Appellants themselves have express- ed their concern that if Virginia's restrictive rule is lifted: “the number of reciprocity admissions in Virginia would skyrocket...". Brief of Appellants, filed with Fourth Circuit, at p. 22. uw While the NYSBA does not quarrel with each state's right to impose its own standards for bar admission, the NYSBA opposes the use of bar examinations as a mechanism to restrict the delivery of legal services. One legal commentator has observed that: States recognizing no reciprocity and states requiring special attorneys’ bar examinations fall almost entirely into two categories: (1) states in the Southeast or the Far West and (2) states in the Northeast, which serve as “bedroom” or “second home” areas for attorneys from nearby major legal centers. It is apparent that the states restricting admission by reciprocity are jurisdictions in which the local bar is subject to the potential influx of attorneys admitted in othr jurisdic- tions because of expanding populati a, economic growth, or the movement of attorneys into suburban areas, second home, or retirement communities. /t has been asserted, with justification, that those states that have made the admission of attorneys most difficult have done so primarily to protect the economic in- terests of the local bar. Hafter, Toward the Multistate Practice of Law Through Admis- sion by Reciprocity, 53 Miss. L.J. 1, 5-6 (1983) (feotnotes omit- ted; emphasis added). Members of the New York State bar have complained to the NYSBA about our neighboring state of New Jersey which re- quires that experienced attorneys pass the New Jersey bar ex- amination. New Jersey cannot even argue that its examination is required so that all attorneys are proficient in local law. The New Jersey examination, which is basically a multistate examina- tion, does not require knowledge of New Jersey 'aw on the part of the examinee. Clerk of the Supreme Court of New Jersey, Ad- mission to the Bar (March 1987) (“[wJhile knowledge of New Jersey law will not be critical to success on the examination, familiarity with new law or distinctive cases will aid you in preparing your responses to the questions”) A former President of the New Jersey State Bar Association has reportedly admitted that the main argument in favor of restrictive rules is “protec- tionism,” and has been quoted as follows: “New Jersey is [Ben- jamin} Franklin’s keg tapped at both ends. The concern for the Newark lawyers is that i: >» York lawyers will simply come in and treat Newark as a sixth borough, and in the southern part of the state the concern is over Philadelphia lawyers.” Lauter, Wiiving Into Another Bar Isn't Always a Real Breeze, National Law Journal, Mar. 17, 1986, at 1, 32. In response to a recent NYSBA request that New Jersey adopx motion admissions, anocher former President of the New Jersey State Bar Association wrote the NYSBA that his Association's Board had voted against motion admission because: “One of our main problems is that we are sandwiched between New York City and Philadelphia. There are currently 30,742 lawyers ad- mitted to practice in our state and the Board felt that in good conscience they could not support your proposition.” Letter from J.L. White to NYSBA, dated May 22, 1986 (Appendix A hereto). CONCLUSION The Virginia Rule at issue employs the bar examination re- quirement as an artificial and unnecessary barrier to the ad- mission of nonresident attorneys. The decision of the court below should be affirmed. Respectfully submitted, MARYANN SACCOMANDO FREEDMAN, Esa. President. New York State Bar Association Monroe '° FREEDMAN, Eso. One Elk et Albany, | -v York 12207 (518) 463-3.'00 RONALD J. Le ‘INE, Eso. 2 Park Avenu New York, New ‘«rk 10016 (212) 684-1400 Counsel of Recorc February 4, 1988 APPENDIX 2 nO Ee Re mT Oe Ean a A-l APPENDIX A NEW JERSEY STATE BAR ASSOCIATION Headquarters 172 WEST STATE STREET, TRENTON, N.J. 08608 609-394-1101 May 22, 1986 New York State Bar Association 600 First Federal Plaza Rochester, New York 14614 Attention: Justin L. Vigdor, Esquire Dear Justin: I discussed your letter of April 21, 1986 with our Board of Trustees at a regular meeting on May 15, 1986. After a lively discussion, the Board voted against supporting motion admissions in New Jersey. I believe this is consistent with earlier positions which other Boards have taken. One of our main problems is that we are sandwiched between New York City and Philadelphia. There are currently 30,742 lawyers admitted to practice in our state and the Board felt that in good conscience they could not support your proposition. Best personal regards, Sincerely, John L. White JLW: tk ce: Raymond R. Trombadore, Esquire Dalton W. Menhall, Esquire --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0712%3A10. Public record. Not legal advice.