Petition for Writ of Certiorari — FitzPatrick v. DiMartino
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34= 1090 Pr et oS
DEC
In The ~~
ALEXANLER L stEyas
Supreme Court of the United botestage=
October Term, 1984
HENRY B. FITZPATRICK, JR.,
Petitioner,
VS.
I. V. DIMARTINO, A.J.S.C. AND THE SUPERIOR COURT,
LAW DIVISION, GLOUCESTER COUNTY, NEW JERSEY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MARCY B. TANKER
LIEBERT, SHORT, FITZPATRICK &
LAVIN
Attorneys for Petitioner
Suite 1200
One Franklin Plaza
16th and Race Streets
Philadelphia, Pennsylvania 19103
(215) 564-5800
*NJ (201) 257-6850°NY (212) 840-9494°PA (215) 563-5587
MA (617) 542-1114°DC (202) 783-7288°USA (800) 5 APPEAL Ane,
QUESTION PRESENTED FOR REVIEW
Was respondents’ refusal to admit petitioner pro hac vice
under New Jersey Court Rules, 1969, R. 1:21-2, in the absence
of a finding that he is unfit or that substantial reasons exist that
would justify his exclusion, a violation of rights secured to
petitioner under Article 1V, §2 of the United States Constitution
and under the Fourteenth Amendment to the United States
Constitution?
il
TABLE OF CONTENTS
Page
Question Presented for Review ......0escccesenennensns i
Table of COMUMMRE. 6.55005 cs50ee00605080s eee il
Table of CORSIOMS ...6icccd cis tacucksneeeeee eee il
Opinions Below . .....60ses0seeesusan be eeue eee l
Statement of Juriediction ..... .20 05 +05%% Gap eases eee 2
Constitutional Provisions, Statute and Rule Involved
ccececenceess sbue weve os 6 6 ae egies 2
Sistement of the Coes ....4.60 jac cvbudeee ee eee 4
Reason for Granting the Writ:
I. Respondents’ application of New Jersey Court Rules,
1969, R. 1:21-2 to deny petitioner’s motion for
admission pro hac vice is a violation of petitioner’s
rights secured to him by Article IV, §2 of the United
States Constitution and by the Fourteenth Amendment
to the United States Const tution. ............... 7
Conclusion ......00cessuanpm ce cee eee 28
TABLE OF CITATIONS
Cases Cited:
Austin v. New’ Hampshire, 104 S. Ct. 2149 (1984)
ii
Contents
Page
Baldwin v. Fish and Game Commission of Montana, 436 U.S.
na a a ake sea wae ein ea ak 9, 10, 12
Burlington Company Interna! Medicine Association, P.A. v.
American Medicorp, Inc., 168 N.J. Super. 382, 403 A.
Ce es os 5a eee deed weee ke ant 5, 14, 15
Cammer v. United States, 350 U.S. 399 (1956).......... 11
Chalker v. Birmingham & N.W.R. Co., 249 U.S. 522 (1919)
ee Gee bw ENS ee RE OS ¢ 8
Cooper v. Hutchinson, 184 F. 2d 119 (3d Cir. 1950) .... 21
Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed.
eta Peas hk a oie kee ee eR ER OR ORR 10
Enquire Printing & Publishing Co. v. O’Reilly, 193 Conn.
Re ae GS a iS, 22. 2
pee V, Geen, 457 U.S. SIS CIFIS) .....00 00000 ceeee
oe sw sw wa B 10, 12, 13, 15, 1%, 27
In re Griffiths, 413 U.S. 717 (1973) ............ S,. Fi, ta ae
In re Mosness, 39 Wis. 509, 20 Am. Rep. 55 (1876)..... 21
In re Sackman, 90 N.J. 521, 448 A. 2d 1014 (1982)
LEST ON Ces de LS SP i7, 16, 19, , 24, 23, 26, 2?
ae Oa ee, Gow Wm. 408 CI979) 2... 2.0 c reece nwenn 5, am oF
Matter of Gordon, 48 N.Y. 2d 266, 422 N.Y.S. 2d 641, 397
re caucus bb aeesvevesabween 21
iv
Contents
Page
Matter of Jadd, 391 Mass. 227, 461 N.E. 2d 760 (1984)
Mullaney v. Anderson, 342 U.S. 415 (1952)............. 12
Noll v. Alaska Bar Association, 649 P. 2d 641 (Alaska 1982)
can ee Ue eR a aE REARS TREE ORR ETE R ERE: 21, 24, 25
Paul v. Virginia, & Wall. 166 (1066) .. 222s cess sccccces 7
Piper v. Supreme Court of New Hampshire, 104 S. Ct. 2149
Sai ata thce hy oh lmehog mo ty weeny 8, 18, 20, 22, 24, 27
Ross v. Reda, 510 F. 2d 1172 (6th Cir.), cert. denied, 423
TR Re Eee ere Pe re eure ee te ok ye
Sargus v. West Virginia Board of Law Examiners, 294 S.E.
oF eA ee er ee oe 21
Schware v. Board of Bar Examiners, 353 U.S. 232 (1957)
Sairet ¢. Caetee, SSeS. 27 CISD 0 iiss ces senate 8
Sheley v. Alaska Bar Association, 620 P. 2d 640 (Alaska 1980)
Stalland v. South Dakota Board of Bar Examiners, £30 F.
Ree Gena as. Rs ce ced chee eS eade beeen 21, 24
Contents
Page
State v. Ross, 36 Ohio App. 2d 185, 304 N.E. 2d 396 (1973),
cort. Goubed, 415 17.5. FOG CORP cs cacadevk eee 22
Strauss v. Alabama State Bar, 520 F. Supp. 173 (N.D. Ala.
FOG ab cw bed eu dae e ks eae ere ee ace 21
Sugarman v. Dougall, 413 U.S. 634 (1973) ............. 10
Thursby v. Warren, 4 Car. 1, 19 Eng. Rep. 738 (C.P. 1629)
4:8 Gin dM hie CE RES EO Oo eee ee 21
Teomer v. Witesll, 334 U.S. 305 (IGE) 3... cn csnnecceees
tb ENDED DER ORES CREE 7, &, 9, 10, 02, 13, 2, 27
Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920)
56> ESE RN RRR RES EE ea ee ae ae 7
Ward v. Maryland, 12 Wall. 418 (1870)................ 8, 12
Statutes Cited:
Oe WBA... CE + 6 kno end ce ekieee eee eee 2
Se USA... Cis dink ahawas beeen eee eee 6
oe Was BL R65 5.55. 00s ed Gas ee en ee 6
Te LB. Gee 4 oi eae eked se 44 eee 2, 6
United States Constitution Cited:
FB a” eos i, 2 & 7, B, Od, 83, 6, ee
Fourteenth Amendment ...i, 2, 6, 7, 8, 10, 11, 12, 13, 16, 28
vi
Contents
Page
Rules Cited:
New Jersey Court Rules, 1969, R. 1:21-2...............
ETE eT ee ets ee ee ee C34: 3.7% eS
Other Authorities Cited:
Note, Attorneys: Interstate and Federal Practice, 80 Harv.
L. Bak EVES Cer eee ss ox d caus Shak vote 21
Black’s Law Dictionary, at p. 1363 (rev. 4th ed. 1968)
Lee ee a vb¥ bbe ew kode Balak Oe ee ee eee 21
Brakel, S.J. & Loh, W.D., Regulating the Multistate Practice
of Law, 50 Wash. L. Rev. 699 (1975).............. 21
6 Holdsworth, A History of English Law, 435-476 (1924)
ied eek coma wena eee ke Se ee ee 21
Merrifield, The Law of Attornies, 41-44 (1830).......... 21
1 Thornton, A Treatise on Attornies at Law §22 (1914)... 21
APPENDIX
Order Dated September 21, 1984 of the United States Court
of Appenis for the Tite Cpt. oo. ic ccc eke ssis la
Letter-Opizion Dated January 31, 1984, United States District
Comet, EReraet GE TRE SOE vic bcc ue eeeece sci 3a
Transcript of Hearing Dated May 21, 1982 ............. 8a
vil
Contents
Page
Complaint for Preliminary and Permanent Injunction and
Decleratory JuGGMGM . ow... icc ccc ee cern deceucken 16a
Motion for Admission of Counsel Pro Hac Vice ........ 27a
ia
4)
~{
No.
In The
Supreme Court of the United States
October Term, 1984
HENRY B. FITZPATRICK, JR.,
Petitioner,
VS.
I. V. DIMARTINO, A.J.S.C. AND THE SUPERIOR COURT,
LAW DIVISION, GLOUCESTER COUNTY, NEW JERSEY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS tOR THE THIRD CIRCUIT
OPINIONS BELOW
The Court of Appeals filed no opinion. The letter which
accompanied the order of the District Court is set forth in the
Appendix at 3a-6a.
STATEMENT OF JURISDICTION
The judgment of the Court of Appeals was entered September
21, 1984. This petition was filed within ninety days of that date.
Jurisdiction of this Court is conferred by 28 U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS,
STATUTE AND RULE INVOLVED
Article IV, §2 — Privileges and Immunities
Section 2. The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens
in the several States.
Amendment XIV
Section 1. All persons born or naturalized in
the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall make
or enforce any !aw which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction
the equal protection of the laws.
42 U.S.C. §1983 — Civil Action of Deprivation of Rights
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress. For the purposes
of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be
considered to be a statute of the District of
Columbia.
New Jersey Court Rules, 1969, R.1:21-2
Appearances Pro Hac Vice
An attorney of any other jurisdiction, of good
standing there, whether practicing law in such other
jurisdiction as an individual, or a meinber or
employee of a partnership, or an employee of a
profes ional! corporation authorized to practice law
in sucn other jurisdiction, or an attorney admitted
in this State, of good standing, who is not
domiciled in this State and who does not maintain
in this State his principal office for the practice
of law, may, at the discretion of the court in which
any matter is pending, be permitted, pro hac vice,
to speak in such matter in the same manner as an
attorney of this State who is domiciled in or
maintains in this State his principal office for the
practice of law; and who is therefore, pursuant
to R.1:21-l(a) authorized to practice in this State;
provided, however, that all pleadings, briefs and
other papers filed with the court shall be signed
by an attorney of record authorized to practice
in this State, who shall be held responsible for them
and for the conduct of the cause and of the
admitted attorney therein.
STATEMENT OF THE CASE
In the fall of 1981 Richard W. Coleman engaged petitioner,
Henry B. FitzPatrick, Jr., to represent him in his personal injury
claim against Roy.L. Gorin, M.D. The claim was based on Gorin’s
alleged negligence in his diagnosis and treatment of Coleman.
Both Coleman and Gorin were residents of New Jersey and all
the pertinent activities had taken place in that state. FitzPatrick
was (and still is) an attorney admitted to the bar of Pennsylvania
practicing primarily in Philadelphia and maintaining offices there
and in Delaware and Lycoming Counties, Pennsylvania.
On May 7, 1982, at FitzPatrick’s request, Diana B. Gittleman,
a member of the New Jersey Bar, filed a complaint entitled Richard
W. Coleman v. Roy L. Gorin, M.D. in the Superior Court of
New Jersey, Law Division, Gloucester County, Docket No.
-44136-81. Gittleman then filed a motion pursuant to New Jersey
Court Rules, 1969, R. 1:21-2 for the admission of FitzPatrick
pro hac vice as additional counsel for Richard Coleman.
On May 21, 1982, a hearing on the motion was held before
respondent, DiMartino. The affidavits of Coleman and FitzPatrick
were presented and Gittleman and FitzPatrick testified. There was
no opposition to the motion. Judge DiMartino siated:
The Court: I am concerned about changing
precedent. I have been the Assignment Judge of
Camden County for about eight months. I have
only allowed the admission pro hac vice once, and
even that case I would not have allowed it had
my predecessor not already verbally ruled that
application should be granted.
(See Appendix at 13a.)
Judge DiMartino stated that he was applying New Jersey
Court Rule R.1:21-2 in accordance with the opinion in the case
of Burlington County Internal Medicine Associates, P.A. v.
American Medicorp, Inc., 168 N.J. Super. 382, 403 A.2d 43 (Ch.
1979). (See Appendix at 13a.) Paraphrasing that case, Judge
DiMartino listed those things which a nonresident of New Jersey
must establish in order to be permitted to appear for his client
in a New Jersey court: 3
He [the judge who wrote the Burlington County
opinion] indicates there must be evidence before
the court that foreign counsel is of good standing
in his own state. I have absolutely no doubt of
that in this case.
The opinion also indicates foreign counsel by
affidavit should indicate that he has maintained
his competency as an attorney particularly in any
specialization which he claims, and I am completely
satisfied that is so here.
However, there also has to be shown good cause
showing that the case involves a complex field of
law, and no one here is going to in any way imply
to me, nor can I accept that a medical malpractice
case is foreign to the intelligence and competency
of local counsel.
There also has to be shown a longheld attorney-
client relationship. I don’t see any such relationship
here. There is a relationship that arises out of this
case. Even more importantly, the next item, there
must be shown a lack of local counsel with
expertise in the field involved. I have already
indicated, as a matter of fact, I consider your firm
very competent.... I don’t see anything
complexed about this case that New Jersey counsel
cannot handle.
(See Appendix at i3a-14a.)
Judge DiMartino denied the motion from the bench and filed
a written order on June 7, 1982
On June 22, 1982, FitzPatrick filed a motion for leave to
appeal an interlocutory order in the Superior Court of New Jersey,
Appellate Division which was denied on July 12, 1982.
On July 28, 1982, FitzPatrick filed a motion for leave to
appeal an interlocutory order in the Supreme Court of New Jersey
which was denied on October 26, 1982.
On June 3, 1983, petitioner filed a complaint against
respondents, DiMartino and the Superior Court of New Jersey,
in the United States District Court for the District of New Jersey
requesting injunctive relief and a declaration ‘‘that the refusal
to permit his admission pro hac vice in the absence of a specific
finding that he is unfit or that substantial reasons exist which
would justify his exclusion constitutes a violation of his rights
under Article IV, §2 of the United States Constitution and under
the Fourteenth Amendment to the United States Constitution.”’
Jurisdiction in the District Court was asserted under 28 U.S.C.
§1343(3) and (4) and 42 U.S.C. $1983.
On December 18, 1983, respondents filed a motion to dismiss
which was granted by order dated January 26, 1984.
Petitioner’s appeal to the United States Court of Appeals
for the Third Circuit was dismissed by order entered September
21, 1984. It is that judgment which petitioner requests this Court
to review.
REASON FOR GRANTING THE WRIT
I.
Respondents’ application of New Jersey Court Rules, 1969,
R. 1:21-2 to deny petitioner’s motion for admission pro hac vice
is a violation of petitioner’s rights secured to him by Article IV,
§2 of the United States Constitution and by the Fourteenth
Amendment to the United States Constitution.
Article IV, §2 of the Constitution, so far as relevant, provides:
The Citizens of each State shall be entitled
to all Privileges and Immunities of Citizens in the
several States.
This Court has stated:
The primary purpose of this clause, like the
clauses between which it is located — those relating
to full faith and credit and to interstate extradition
of fugitives frorn justice — was to help fuse into
one Nation a collection of independent, sovereign
States. It was designed to insure to a citizen of
State A who ventures into State B the same
privileges which the citizens of State B enjoy.
Toomer v. Witsell, 334 U.S. 385, 395 (1948), citing Paul v.
Virginia, 8 Wall. 168, 180-81 (1868) and Travis v. Yale & Towne
Mfg. Co., 252 U.S. 60, 78 (1920).
This Court has not decided whether the clause insures to a
lawyer, citizen' of State A, who ventures into State B, the same
1. Although this Court has not always equated state residency with state
citizenship, this Court has stated: ‘‘it is now established that the terms ‘citizen’
(Cont'd)
privileges regarding the practice of his profession which the citizens
of State B enjoy.” This Court has held, however, referring to the
underlying purpose of the clause, that:
li was long ago decided that one of the privileges
which the clause guarantees to citizens of State A
is that of doing business in State B on terms of
substantial equality with the citizens of that State.
Toomer v. Witsell, supra, at 396, citing Ward v. Maryland, 12
Wall. 418 (1870) and also, Chalker v. Birmingham & N.W.R.
Co., 249 U.S. 522 (1919); Shaffer v. Carter, 252 U.S. 37, 52-53
(1920).
In Toomer v. Witsell, supra, this Court went on, pointing
out that:
Like many other constitutional provisions, the
privileges and immunities clause is not an absolute.
It does bar discrimination against citizens of other
States where there is no substantial reason for the
discrimination beyond the mere fact that they are
(Cont’d)
and ‘resident’ are ‘essentially interchangeable’ ’’, Hicklin v. Orbeck, 437 U.S.
$18, 524 n.8 (1978), citing Austin v. New Hampshire, 420 U.S. 656, 662 n.8
(1975).
2. The case of Piper v. Supreme Court of New Hampshire, 104 S. Ct.
2149 (1984), argued before this Court on October 31, 1984, presents the question
of whether the Privileges and Immunities Clause prevents a state from imposing
residency requirements on admission to the bar. This Court has previous!y
decided that the Equal Protection Clause of the Fourteenth Amendment prohibits
a state from denying admission to the bar to applicants who are not citizens
of the United States, /n re Griffiths, 413 U.S. 717 (1973); and that the Due
Process Clause of the Fourteenth Amendment does not afford procedural due
process rights to applicants seeking pro hac vice admission, Leis v. Flynt, 439
U.S. 438 (1979).
citizens of other States. But it does not preclude
disparity of treatment in many situations where
there are perfectly valid independent reasons for
it. Thus the inquiry in each case must be concerned
with whether such reasons do exist and whether
the degree of discrimination bears a close relation
to them. The inquiry must also, of course, be
conducted with due regard for the principle that
the States should have considerable leeway in
analyzing local evils and in prescribing appropriate
cures.
Id. at 396.
Thus there is no absolute proscription of a state’s establishing
disparate treatment of nonresidents. In has been held that as to
certain activities a state may discriminate against nonresidents on
. the basis of their nonresidence alone. These, however, include
only those activities which are closely related to the state’s need
tO preserve its sovereign identity.
In Baldwin v. Fish and Game Commission of Montana, 436
U.S. 371, 383 (1978) this Court offered some examples of these
activities:
Suffrage, for example, always has been understood
to be tied to an individual’s identification with a
particular State. See, e.g., Dunn v. Blumstein, 405
U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).
No one would suggest that the Privileges and
Immunities Clause requires a State to open its polls
to a person who declines to assert that the State
is the only one where he claims a right to vote.
The same is true as to qualification for an elective
office of the State. Kanapaux v. Ellisor, 419 U.S.
10
891, 95 S.Ct. 169, 42 L.Ed.2d 136 (1974);
Chimento v. Stark, 353 F.Supp. i211 (D.N.H.
1973), summarily aff’d, 414 U.S. 802, 94 S.Ct.
125, 38 L.Ed.2d 39 (1973).
Neither in Baldwin nor Hicklin’ did this Court precisely
describe the boundaries of the sovereign identity exception but
the Baldwin citation to Dunn v. Blumstein, decided on equal
protection grounds, suggests that this Court sees some measure
of similarity in cases where claims of discrimination on the basis
of citizenship were being made under the Equal Protection Clause.
In Sugarman v. Dougall, 413 U.S. 634 (1973), this Court held,
on equal protection grounds, that a New York statute which
required all civil service employees to be citizens of the United
States was an invalid discrimination on the basis of citizenship
not justified by any need to maintain the sovereign identity of
the State of New York. In that case this Court described in a
more general way the types of activities for which citizenship
requirements may be prescribed:
Neither do we hold that a State may not, in
an appropriately defined class of positions, require
citizenship as a qualification for office. . . . [T]his
power of the State applies not only to the
qualifications of voters, but also to persons holding
State elective or important nonelective executive,
legislative, and judicial positions, for officers who
participate directly in the formation, execution,
or review of broad public policy perform functions
that go to the heart of representative government.
Id. at 647.
3. The only cases decided since Toomer v. Witsell, supra, by this Court
squarely dealing with claims under the Privileges and Immunities Clause.
li
The question of whether the practice of law is an activity
so closely related to the state’s sovereign, separate existence that
noncitizens of the United States could be denied admission to
the bar of Connecticut was addressed by this Court in Jn re
Griffiths, 413 U.S. 717 (1973). It was there held that the Equal
Protection Clause prohibited such discrimination and Mr. Justice
Black’s opinion in Cammer v. United States, 350 U.S. 399, 405
(1956) was quoted:
“It has been stated many times that lawyers
are ‘officers of the court.” One of the most
frequently repeated statements to this effect
appears in Ex parte Garland, 4 Wall. 333, 378.
The Court pointed out there, however, that an
attorney was not an ‘officer’ within the ordinary
meaning of that term. Certainly nothing that was
said in Ex parte Garland or in any other case
decided by this Court places attorneys in the same
category as marshals, bailiffs, court clerks or
judges. Unlike these officials a lawyer is engaged
in a private profession, important though it be to
our system of justice. in general he makes his own
decisions, follows his own best judgment, collects
his own fees and runs his own business. The word
‘officer’ as it has always been applied to lawyers
conveys quite a different meaning from the word
‘officer’ as applied to people serving as officers
within the conventional meaning of that term.’’
(Footnote omitted.)
Finally the Court said:
Lawyers do indeed occupy professional
positions of responsibility and influence that
12
impose on them duties correlative with their vital
right of access to the courts. . . . Yet, they are not
officials of government by virtue of being lawyers.
Nor does the status of holding a license to practice
law place one so close to the core of the political
process as to make him a formulator of
government policy.
In re Griffiths, supra, at 728-29 (footnote omitted). It would seem
that the activities of lawyers as formulators of government policy
should appear the same whether viewed through the lens of the
Equal Protection Clause or of the Privileges and Immunities
Clause.
This Court has always held that the Privileges and Immunities
Clause protects nonresidents seeking to ply their trade, practice
their occupation, or pursue a common calling from state
discrimination.* Ward v. Maryland, 12 Wall. 418 (1871) (Maryland
statute discriminating against nonresidents desiring to do business
in Maryland); Toomer v. Witsell, supra (South Carolina statute
discriminating against nonresidents desiring to shrimp in South
Carolina); Mullaney v. Anderson, 342 U.S. 415 (1952) (Alaska
statute discriminating against nonresidents desiring to fish in
Alaska) and Hicklin vy. Orbeck, supra (Alaska statute
discriminating against nonresidents desiring to work in Alaska).
In deciding cases under the Privileges and Immunities Clause
where claims of discrimination are made by nonresidents this Court
has followed standards which it articulated in Toomer and Hicklin.
There are two standards:
4. At the other end of the spectrum of activities are those which are trivial
or at least do not rise to a level of import deserving of the protection of the
Privileges and Immunities Clause. Elk hunting was held to be such an activity.
Baldwin v. Fish and Game Commission of Montana, supra.
13
First, it must be shown that nonresidents constitute a peculiar
source of evil at which the statute is aimed.’ Second, the
discrimination practiced upon nonresidents must bear a substantial
relationship to the particular evil they are said to present.® In this
case neither of these standards are met.
The rule in question, New Jersey Court Rules, 1969, R. 1:21-2,
impermissibly discriminates against nonresident lawyers by
requiring them to meet a number of standards which have no
relation whatsoever to any evil, or the protection therefrom, as
a condition to their admission pro hac vice.
It cannot be disputed that New Jersey has the right to protect
its citizens against the practice of law by lawyers who do not meet
reasonable standards of competence and integrity. Insofar as R.
1:21-2 attempts to accomplish this it can meet with no
constitutional complaint. Insofar as it attempts, however, to
impose conditions on admission pro hac vice which are not so
related it despoils rights secured by the Privileges and Immunities
Clause and by the Equal Protection Clause. Hicklin v. Orbeck,
supra; Toomer v. Witsell, supra and Schware v. Board of Bar
Examiners, 353 U.S. 232 (1957). In Schware, an equal protection
case, this Court held that:
A State can require high standards of qualification,
such as good moral character or proficiency in its
law, before it admits an applicant to the bar, but
any qualification must have a rational connection
with the applicant’s fitness or capacity to practice
law.
Id. at 239.
5. Toomer v. Witsell, supra, 334 U.S. at 398; Hicklin v. Orbeck, supra,
437 U.S. at 526.
6. Toomer v. Witsell, supra, 334 U.S. at 398, 403; Hicklin v. Orbeck, supra,
437 U.S. at 527.
14
At the time petitioner’s motion for admission pro hac vice
was decided the rule simply provided that admission of a
nonresident attorney may be allowed at the discretion of the court.’
There existed as well a decision of the Superior Court of New
Jersey’ which set forth standards for the exercise of the discretion
mentioned in the rule. In the words of that court the exercise
of that discretion was to be as follows:
The matter is one for the conscientious
exercise of my discretion, [citation omitted] which
requires certain basic information to be supplied
by [foreign] counsel. This consists of proof
(1) that foreign counsel is of good standing
in his state and is associated with New Jersey
counsel of good standing here... .
(2) by affidavit of foreign counsel, that he has
maintained his competence as an attorney,
particularly in any specialization which he claims,
through experience, schools, lectures and readings;
(3) by letter of defendant, that it desires to
be represented by Pennsylvania counsel in New
Jersey, stating reasons;
(4) good cause, presented in affidavit form,
which may consist of:
(a) a showing that the cause involves a
complex field of law in which counsel is a specialist,
(b) a long held attorney-client relationship,
(c) lack of local courtsel with expertise in the
field involved,
7. The text of the rule is set out above.
8.
Burlingion County Internal Medicine Associates, P..A. v. American
Medicorp, Inc., 168 N.J. Super. 382, 403 A.2d 43 (1979).
15
(d) the existence of legal questions involving
the law of the foreign jurisdiction,
(e) the need for extensive discovery
proceedings in the foreign jurisdiction.’
Id. at 384, 403 A.2d at 44.
There is, at least presumptively, the potential evil threatening
New Jersey that unqualified or unprincipled lawyers from outside
the state may seek admission — either pro hac vice or for adrrission
permanently. Thus the first three conditions set out in the
Burlington case are in all respects proper and appropriate.'°
The first requirement — that foreign counsel prove that he
‘tis of good standing in his state’? — is really not discriminatory
at all: New Jersey lawyers must be of good standing in their state
as weil. So this condition is entirely appropriate.
The second condition — that foreign counsel prove that ‘‘he
has maintained his competence as an attorney, particularly in any
specialization which he claims, through experience, schools,
lectures and readings’’ — does discriminate against nonresidents
as no such demand is made on members of the New Jersey bar,
nevertheless, since this is ciearly and reasonably designed to deal
with a real potential ‘‘evil’’, the Hicklin tests are met.
In this case petitioner has met these standards. Judge
DiMartino acknowledged on the record that FitzPatrick was both
competent and in good standing.
9. In January 1984 the Supreme Court of New Jersey incorporated the
conditions set forth in the Burlington County case into R. 1:21-2 by amendment
effective February 15, 1984.
10. The third condition is subject to question insofar as it requires the client
to state reasons for his wish to be represented by a nonresident. Thus the client
is placed in the position of justifying his desire for, presumably, his reasons
must be such as please the judge.
16
He [the judge who wrote the Burlington
County opinion] indicates there must be evidence
before the court that foreign counsel is of good
standing in his own state. I have absolutely no
doubt of that in this case.
The opinion also indicates foreign counsel by
affidavit should indicate that he has maintained
his competency as an attorney particularly in any
specialization which he claims, and I am completely
satisfied that is so here.
(See Appendix, 13a.)
Having made that finding there is simply no constitutional
justification for the imposition of any other conditions on
admission. There is simply no ‘‘evil’’ threatened. As this Court
stated in Schware v. Board of Bar Examiners, supra, 353 U.S.
at 239:
[A]ny qualification must have a rational connection
with the applicant’s fitness or capacity to practice
law.''
Even so, an examination of the other conditions prescribed
for consideration on motions for admission pro hac vice
demonstrates that (a) they discriminate against nonresidents and
_ IL. Schware was a case under the Equal Protection Clause of the Fourteenth
Amendment; but there is nothing in any case decided under that clause or under
the Privileges and Immunities Clause of Article [V, §2 which gives the slightest
indication that this statement should have any less poignancy in a case brought
under the latter.
Also, the statement in Schware refers to the standards a State may prescribe
for an applicant for admission to the bar; there is no reason why the same
constitutional constraints should not apply when one seeks admission pro hac
vice.
17
_
(b) they are not in any way designed to deal with any
constitutionally cognizable evil. Respondents are, nevertheless,
required to apply these conditions in all cases. Judge DiMartino
applied them and denied petitioner’s motion, stating:
However, there also has to be shown good
cause showing that the case involves a complex
field of law, and no one here is going to in any
way imply to me, nor can I accept that a medical
malpractice case is foreign to the intelligence and
competency of local counsel.
There also has to be shown a longheld
attorney-client relationship. I don’t see any such
relationship here. There is a relationship that arises
out of this case.
Even more importantly, the next item, there
must be shown a lack of local counsel with
expertise in the field involved. I have already
indicated, as a matter of fact, I consider your firm
very competent. ...I don’t see anything
complexed about this case that New Jersey counsel
can not handle.
(See Appendix, 13a-14a.)
It is not known how any of these items advance the protection
of those citizens of New Jersey who might wish to be represented
by nonresidents about whose good standing at the bar the trial
judge has ‘‘absolutely no doubt’’ and abuut whose competency
as attorneys he is ‘‘completely satisfied.’’
It is coincidentally fortunate that the Supreme Court of New
Jersey had occasion recently to address the fundamental question
of the putative ‘‘evil’’ presented by the practice of nonresident
attorneys in New Jersey. In Jn re Sackman, 90 N.J. 521, 448 A.
18
2d 1014 (1982), the court had before it a challenge to its rule R. ©
1:21-l(a) which required, as a condition for the admission of a
non-domiciliary lawyer to the bar of New Jersey, that he maintain
his principal office there. This contrasted with the rule for
domiciliaries of New Jersey for whom the requirement was merely
a bona fide office. The court did not reach the constitional
questions for it amended the rule making the office requirement
the same for domiciliaries and non-domiciliaries.
With disarming candor the New Jersey Supreme Court
identified the potential ‘‘evil’’ as perceived in that state as follows:
The rule has been amended several times and
has been the subject of much debate. It represents
the continuing effort to determine where the public
interest lies when non-domiciliaries seek to practice
law. If such practice poses a risk to the public,
nowhere is it greater than in New Jersey. Located
between two large states that are major commercial
and industrial centers, with New York City and
Philadelphia directly on our borders, New Jersey
is a natural place to practice for many residents
of New York and Pennsylvania. Similarly, many
New Jersey domiciliaries practice in those states.
90 N.J. at 525, 448 A. 2d at 1017. Of course, a perceived threat
to the financial well being of in-state lawyers is not such an interest
which a state may pro.ect dy leveling discriminatory rules at out-
of-state lawyers.'*? The Supreme Court of New Jersey recognizes
this and in the course of its Opinion in Sackman announced its
view of the policy of that state on the broad subject of the practice
of law in New Jersey by nonresident lawyers:
12. See Hicklin v. Orbeck, 437 U.S. 518, 531 (1978); Piper v. Supreme
Court of New Hampshire, 723 F.2d 110, 117 (ist Cir. 1983), probable jurisdiction
noted, 104 S. Ct. 2149 (1984); Enquire Printing & Publishing Co. v. O'Reilly,
193 Conn. 370, 477 A.2d 648 (1984).
19
We have concluded that the public would be
better served if licensed New Jersey attorneys
residing, for example, in New York and
Philadelphia were subject to no greater restrictions
in their practice in New Jersey than those residing
in Newark and Camden. The risks, if any, to the
public arising from the potential lack of contact
of non-domiciliary attorneys with New Jersey are
not significantly greater than the same risks that
arise when licensed New Jersey attorneys, living
in Newark or Camden, practice almost exclusively
in New York City or Philadelphia. In any event,
the difference in risk is substantially outweighed
by the advantage to the public of allowing such
out-of-state attorneys to practice here.
What is the public interest here? It is to make
more qualified lawyers available to New Jersey’s
citizens. That interest is achieved by eliminating
restrictions that reason and experience have shown
are not needed for the public’s protection.
No one before us has suggested that the public
interest would be served by a limitation on the
number of lawyers authorized to practice in New
Jersey. Whether the financial interest of the bar
would be served by any such limitation is irrelevant
unless and until that financial interest can be
equated with the public interest, which we doubt
it ever could. We assume, and believe, that the
more qualified lawyers in New Jersey, the better
the public will be served; that potential clients of
all income levels wiil benefit from more lawyers
being available; that the increase in competition
may have the beneficial effect of lowering fees;
that if any risks to the public interest are caused
20
by such increased competition, they can be
controlled by this Court; and that the adverse
economic impact, if any, on laywers now practicing
in New Jersey is no more relevant to the issue
before us than it is to the number of new attorneys
admitted as a result of each new bar examination.
90 N.J. at 527, 448 A.2d at 1019 (emphasis added).
li cannot be seriously argued that requirements that an
applicant for pro hac vice admission prove that the case he seeks
to try be of some special [though undefined] complexity; or that
he prove that he has a long held attorney-client relationship with
the person who is requesting his services; or that he prove that
there is no lawyer in the State of New Jersey who is qualified
to handle the case, are ‘‘needed for the public’s protection.’’
It is submitted that the imposition of any of these
requirements as a condition for pro hac vice admission is
impermissible under Article IV, §2 of the United States
Constitution as interpreted by this Court, especially in Toomer
v. Witsell, supra, and Hicklin v. Orbeck, supra. It is submitted
that in a case where it is established that the nonresident attorney
is fit and capable, the imposition of any requirement of a ‘‘good
cause’’ showing is impermissible'’: in such case there simply is
no ‘‘evil’’.
During the last few years a number of courts have invalidated
various types of residency requirements for admission to state
bars as violative of the Privileges and Immunities Clause of Article
IV, §2 of the Constitution. Piper v. Supreme Court of New
Hampshire, 723 F.2d 110 (1st Cir. 1983), probable jurisdiction
13. See Silverman v. Browning, 359 F.Supp. 173, 178-79 (D.Conn. 1972),
(concurring Opinion).
21
noted, 1045S. Ct. 2149 (1984)'*; Stalland v. South Dakota Board
of Bar Examiners, 530 F. Supp. 155 (D.S.D. 1982); Strauss v.
Alabama State Bar, 520 F. Supp. 173 (N.D. Ala. 1981); Noll v.
Alaska Bar Association, 649 P.2d 641 (Alaska 1982); Sheley v.
Alaska Bar Association, 620 P.2d 640 (Alaska 1980); Matter of
Jadd, 391 Mass. 227, 461 N.E. 2d 760 (1984); Matter of Gordon,
48 N.Y. 2d 266, 422 N.Y.S. 2d 641, 397 N.E. 2d 1309 (1979);
Sargus v. West Virginia Board of Law Examiners, 294 S.E. 2d
440 (W. Va. 1982).
It is submitted that the interest of laywers who seek admission
pro hac vice (‘‘{flor this turn; for this one particular occasion’’)'’
in a state where they do not reside is little different and no less
than the interest of those nonresident lawyers who seek admission
to the bar generally.
Admission pro hac vice is not a recent vogue; it is a custom
that was recognized as early as 1629 in England'® and that had
become ‘‘general’’ and ‘‘uniform’’ in the United States at least
by 1876."’
Certainly, the increased mobility of the bar and the changing
14. This Court granted certiorari from the equally divided Court of Appeals
and heard argument on October 31, 1984.
15. Black’s Law Dictionary, at p. 1363 (rev. 4th ed. 1968).
16. Cooper v. Hutchinson, 184 F.2d 119, 122 (3d Cir. 1950), citing Thursby
v. Warren, 4 Car. 1, 19 Eng. Rep. 738 (C.P. 1629). See 6 Holdsworth, A History
of English Law 435-436, 453, 456-457 (1924); Merrifield, The Law of Attornies,
41-44 (1830).
17. Cooper, supra, 184 F.2d at 122, citing In re Mosness, 39 Wis. 509,
20 Am. Rep. 55 (1876). See 1 Thornton, A Treatise on Altornies at Law §22
(1914); Brakel, S.J. & Loh, W.D., Regulating the Multistate Practice of Law,
50 Wash. L. Rev. 699, 702 (1975); Note, Attorneys: Interstate and Federal
Practice, 80 Harv. L. Rev. 1711, 1717-1721 (1967-68).
22
character of the practice, noted recently by many courts,'* is more
readily and surely thwarted by the erection of residency
requirements for pro hac vice admissions than by making residence
a qualification for permanent admissions.
Nor can it be said that because the rules for pro hac vice
admission uniformly provide that the decisions to grant or deny
such motions are to be made ‘‘at the discretion of the court’’'’
that, therefore, the discretion sc bestowed is unbounded; subject
to no restraints; may be abused or exercised arbitrarily; and is
unreviewable. To say that, it is submitted, is the same as to say
that the court rules may provide that motions for admission pro
hac vice may be denied for no reason or for reasons which are
unconstitutional. The court rules do not so provi@f& Once the
exercise of power delegated to a court is prescribed as discretionary,
the exercise of the power has been modified in some degree and,
certainly, at least, then, it cannot be said that the power may
be exercised indiscriminately. Courts have been granting and
denying motions for admission pro hac vice with just such a view
of the extent of their power. See, e.g., Ross v. Reda, 510 F.2d
1172, 1173 (6th Cir.), cert. denied, 423 U.S. 892 (1975): ‘‘The
prerogative of a trial judge to exclude out-of-state counsel. . . is
not an absolute right.’’ (affirming denial by trial court of motion
by out-of-state attorney who refused to limit his out-of-court
remarks about the case); State v. Ross, 36 Ohio App. 2d 185,
188, 304 N.E. 2d 396, 399 (1973), cert. denied, 415 U.S. 904 (1974):
‘*Whether or not so to specially permit an attorney not admitted
to practice in Ohio. . . to represent a party in a particular action
is a matter lying within the sound discretion of the court. Thus
we must determine whether there has been an abuse of discretion’’;
Enquire Printing and Publishing Co.v. O’Reilly, 193 Conn. 370,
18. See, e.g., Leis v. Flynt, 439 U.S. 438, 442 (1978); Piper v. Supreme
Court of New Hampshire, supra, 723 F.2d at 117; Enquire Printing and
Publishing Co. v. O’Reilly, 193 Conn. 370, 374, 477 A.2d 648, 651 (1984).
19. See, e.g., N.j. Ct. R. R. 1:21-2.
23
373, 477 A.2d 648, 650 (1984): ‘‘Although the court receiving
an application for admission pro hac vice has broad discretionary
power, the exercise of that power is not unfettered. Our federal
and state constitutions prohibit requiring applicants . . . to possess
qualifications that have no ‘rational connection with the applicant’s
fitness or capacity to practice law.’ ”’’ (affirming trial court’s denial
of motion where it was likely out-of-state attorney-applicant would
be a witness at the trial).
Furthermore, any ‘‘evils’’ which may be imputed to attend
the admission of nonresidents to the bar for all purposes must
necessarily be much reduced where nonresidents seex admission
only for ‘‘one particular case.’’ By the same token, if there is
any evil involved in either case, the difficulty of dealing with it
is much reduced when the request is only for one particular case.
The ‘‘evils’’ most commonly raised by those who have
opposed applications for admission pro hac vice*® are:
(1) The out-of-state lawyer is unfamiliar with local rules and
practice. The answer to this is that an out-of-state lawyer, e.g.,
a Philadelphia lawyer, is no less familiar with Camden’s local
nuances than is a licensed New Jersey attorney who lives and
practices in Jersey City or Atlantic City or Sea Isle City or indeed
than a licensed New Jersey attorney who lives in Camden but
20. In this case, FitzPatrick’s motion for admission pro hac vice was not
opposed and respondents have put nothing in the record relating to any ‘‘evil’’
supposedly attendant to his admission or the admission of others like him. See,
In re Griffiths, supra, 413 U.S. at 726-27 where this Court struck down the
state’s discriminatory rule relating to aliens’ admission to practice law because
“In sum, the (bar committee) simply has not established that it must exclude
all aliens from the practice of law in order to vindicate its undoubted interest
in high professional standards.’’ (footnote omitted). What follows, therefore,
is simply a demonstration that no possible evils accompany the admission pro
hac vice of a fit and capable attorney; or, if they do, they are much more easily
dealt with than those that might be said to attend admissions to the bar.
24
practices in Philadelphia.*' In pro hac vice cases this is no problem
at all because counsel is required to be associated with local
counsel.
(2) The out-of-state lawyer will not be as interested in
maintaining a good reputation or be amenable to discipline in
the New Jersey courts. The answer to this is: (a) there is no
correlation between a desire for a good reputation and in-state
residence, ?*? moreover, the good reputation of an attorney is more
likely to depend on ‘‘where an individual’s heart is rather than
where her house is’’;?’ (b) there are many ways to insure the out-
of-state attorney is subject to any necessary discipline** all of which
are much less drastic than across the board exclusion;** but (c),
in the case of a lawyer practicing by virtue of a pro hac vice
admission, at all times he is before the court, under its scrutiny
and subject to immediate, on the spot discipline.
(3) The out-of-state ilawyer will not be available for court
proceedings. The answer to this is: (a) ‘‘[a]vailability for court
proceedings depends on geographical distance, not jurisdictional
boundaries;’’** obviously a lawyer in Philadelphia is more easily
21. See, e.g., Stalland, supra, at 159-60; Piper v. Supreme Court of New
Hampshire, 539 F. Supp. 1064, 1072 (1982); In re Sackman, supra, at 1019.
22. Noll v. Alaska Bar Association, 649 P.2d 241, 246 (Alaska 1982).
23. Piper v. Supreme Court of New Hampshire, 539 F. Supp. 1064, 1072
(D.N.H. 1982).
24. In the present case it might be considered that the chances for discipline
being necessary are diminished in view of the court’s finding that it has
‘tabsolutely no doubt’’ as to FitzPatrick’s good standing.
25. See, e.g., Piper, 723 F.2d at 117; Stalland, supra, at 160-61; Noll,
supra, at 246.
26. Piper v. Supreme Court of New Hampshire, supra, 539 F. Supp. at 1072.
25
available for court in Camden than is a lawyer from New
Brunswick or even Egg Harbor;’’ finally, (b) in a pro hac vice
case the additional appearance of local counsel is required which
is not true where admitted attorneys from distant New Jersey
points are in the case.
The Supreme Court of New Jersey recently had occasion to
express its ideas regarding these three subjects of competence,
accountability and accessibility in the course of considering its
rule requiring nonresident applicants for admission to the bar to
have their principal office in New Jersey. Though the case thus
did not involve requirements for pro hac vice admissions, the
court’s observations are no less highly pertinent. In Jn re Sackman,
90 N.J. 521, 448 A.2d 1014 (1982), the court said:
The premise behind the distinction is that the mere
fact of living in New Jersey makes it more likely,
and more to the point, sufficiently more likely,
that that lawyer will be more competent, accessible
and accountable than the one who is living in
another state. If it is true, then it is only marginally
true. We do not know whether the lawyer in
Camden or Philadelphia reads the New Jersey Law
Journal, the advance sheets, or goes to continuing
legal education courses. We do not know which
one regularly responds to telephone calls, and
which will respond to calls at home. We do not
know which one comes to the office, whether
principal, bona fide or any office, regularly, and
works hard. We know that some New Jersey
lawyers are not up to date on New Jersey law and
27. In Noll, supra, 649 P.2d at 245, the Supreme Court of Alaska observed:
**(W]e fail to see how the asserted problem of communication between resident
and nonresident counsel differs materially from that confronting a Fairbanks
attorney trying a case in Juneau.”’
26
procedure, that some handle cases in areas for
which they are ill-equipped, that some have more
than one office in New Jersey and cannot be found
when needed, in short, we know that all of the
problems attributed to non-residents that might
require them to have a principal office in New
Jersey may be caused also by New Jersey
attorneys.The differential in risk to clients
concerning the competence, accessibility and
accountability of the out-of-state lawyers as
compared to the New Jersey resident seems to us
insufficient to warrant a difference in these
requirements.
While our experience with out-of-state
attorneys cannot prove very much, since the rule
has always required at least a principal office here,
we note that complaints of incompetence, in-
accessibility or unaccountability made of out-of-
state attorneys appear to have no more frequency
in relation to their total number than those against
domiciliaries. There is absolutely no showing that
New Jersey domiciliaries who have their principal
office elsewhere, indeed almost their exclusive
office elsewhere, are less competent, accessible or
accountable when they practice in New Jersey at
their ‘‘bona fide’’ office than are other New Jersey
lawyers. And finally, though many states in the
Union allow non-domiciliaries to practice without
any ‘‘principal office’’ requirement, there is
absolutely no literature, no statistical proof of
which we are aware, not even a suggestion, that
they constitute any risk to the public greater than
that which emanates from the resident bar.
27
The record is thus barren of proof of the
difference in risk. Our own knowledge and
experience suggest that while residence may be a
factor bearing on competence, accessibility and
accountability, it is not an important factor, and
that relying on it may cause more disadvantages
to the public than advantages.
Id. at 533-34, 448 A. 2d at 1021 (emphasis in original). As pointed
Out above any putative disadvantage is measurably diminished
in the case of pro hac vice admissions because of the concomitant
control which courts have over nee lawyers whose admission
is but ‘‘foi one particular case.’
Finally, it is submitted that Leis v. Flynt, 439 U.S. 438 (1979)
does not control this case. That case held that admission pro hac
vice is not a right protected by the Due Process Clause. Article
IV, §2 was not mentioned in the Court’s opinian or in the petition
for the writ or in the respondent’s brief. Whether the practice
of law, pro hac vice or otherwise, is entitled to Privileges and
Immunities Clause protection under the tests set out in Toomer
v. Witsell, supra and Hicklin v. Orbeck, supra, was not considered.
It is submitted that this is a question of pervasive importance.
This Court recently granted a writ in the case of Piper v. Supreme
Court of New Hampshire, 104 S. Ct. 2149 (1984) where
discriminatory residency requirements for admission to the bar
are involved. It was there argued, as here, that such requirements
violated Article IV, §2 of the United States Constitution. It is
submitted that the interests at stake when admissions pro hac vice
are sought are no less important. For this reason the writ should
be granted.
28
CONCLUSION
The interests of out-of-state lawyers in practicing their
profession in New Jersey is entitled to the protection of the
Privileges and Immunities Clause of the United States Constitution.
That interest is entitled to no less protection than that which this
Court held that clause afforded nonresident shrimpers to shrimp
in South Carolina or nonresident pipeline workers to work in
Alaska.
Likewise, the interest of out-of-state lawyers in practicing
in New Jersey is protected by the Equal Protection Clause of the
Fourteenth Amendment. That interest is entitled to no less
protection than that which this Court held that clause afforded
a Dutch citizen to practice law in Connecticut.
Finally, the interest of out-of-state lawyers to admission pro
hac vice in New Jersey is no less important than their interest
in admission to the bar of New Jersey the Court recently granted
a writ in a case where a nonresident of New Hampsnire was denied
admission to the bar of that state. Granting a writ in this case
is as well justified.
Respectfully submitted,
MARCY B. TANKER
LIEBERT, SHORT,
FITZPATRICK & LAVIN
Attorneys for Petitioner
la
ORDER DATED SEPTEMBER 21, 1984 OF THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 84-5105
HENRY B. FITZPATRICK
I.V. DIMARTINO, A.J.S.C., In His Capacity as Judge of the
Superior Court, Law Division, Gloucester County, NJ and THE
SUPERIOR COURT, Law Division, Gloucester County, NJ.
Henry B. FitzPatrick, Jr.,
Appellant
Appeal from the United States District Court for the District of
New Jersey
(D.C. Civ. No. 83-2102)
District Judge: Honorable John W. Bissell
Submitted Under Third Circuit Rule 12(6)
September 11, 1984
Before: ADAMS, HIGGINBO1HAM and SLOVITER, Circuit
Judges.
JUDGMENT ORDER
After consideration of all contentions raised by appellant, it is
ADJUDGED AND ORDERED that the judgment of the
district court be and is hereby affirmed.
2a
Order
Costs taxed against appellant.
BY THE COURT,
s/ Alan Higginbotham
Circuit Judge
Attest:
s/ Sally Mrvos Clerk
DATED: SEP. 21, 1984
3a
LETTER-OPINION DATED JANUARY 31, 1984, UNITED
STATES DISTRICT COURT, DISTRICT OF NEW JERSEY
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of Federal Building
John W. Bissell " Trenton, New Jersey 08605
Judge January 31, 1984.
NOT FOR PUBLICATION
Filed Feb. 1, 1984
Allyn Z. Lite, Clerk
Gary B. Cutler Esquire
Mainline Shopping Center
Florelle Plaza :
Cinnaminson, New Jersey 08077
Marcy Tanker, Esquire
Liebert, Short, Fitzpatrick and Lavin, Esquires
1200 One Franklin Plaza
Philadelphia, Pennsylvania
(Attorneys for Plaintiff)
Irwin I. Kimmelman, Esquire
Attorney General of the State of New Jersey
By: Andrea M. Silkowitz, Esquire
Deputy Attorney General
Division of Law, Room 316
1100 Raymond Boulevard
Newark, New Jersey 07102
(Attorneys for Defendants)
4a
Letter-Opinion
Re: HENRY B. FITZPATRICK, JR., etc. v. LV.
DiMARTINO, A.J.S.C., etc. and THE SUPERIOR
COURT, etc.; Civil Action No. 83-2102.
Mesdames and Messieurs:
The case at bar arises out of a complaint filed by plaintiff
on June 3, 1983 for declaratory and injunctive relief. The plaintiff,
Henry B. Fitzpatrick, an attorney licensed by the Commonwealth
of Pennsylvania, is suing the Superior Court of New Jersey and
the Honorable I.V. DiMartino, the Assignment Judge of that
Court in Gloucester and Camden Counties, for failure to grant
plaintiff admission pro hac vice. Plaintiff desired to serve as
counsel to Richard Coleman in a medical malpractice matter,
Coleman v. Gorin, L-44136-81, presently pending in that state
court. That action was filed in April 1982. On May 1, 1982, Diana
B. Gittleman, Esquire, moved before the defendant, pursuant to
New Jersey Court Rule 1:21-2, to admit Henry B. Fitzpatrick,
Esquire, pro hac vice, as additional counsel. In support of the
motion, plaintiff asserted his experience of twenty-five years in
personal injury cases, his alleged ‘‘confidential’’ relationship with
Coleman, and the fact that Coleman’s treating physician and expert
witness were both located in Pennsylvania. Judge DiMartino,
relying on Burlington County International Medical Association
v. American Medicorp., 168 N.J. Super. 382 (Ch. Div.- 1979),
denied Fitzpatrick’s petition for admission. He concluded that
Fitzpatrick had failed to establish good cause for admission pro
hac vice. On June 22, 1982, plaintiff moved to appeal Judge
DiMartino’s ruling, pursuant to New Jersey Court Rule 2:2-4.
In addition to claiming abuse of discretion, it was asserted that
the Court had abrogated ‘‘[t]he due process rights of plaintiff
(Coleman) and Henry B. Fitzpatrick, Jr. ... by fail{ing] to
reasonably or meaningfully anply the standards for pro hac vice
Sa
Letter-Opinion
admission.’’ [Defendant’s Brief at p. 3.] Plaintiff alleged that the
New Jersey Court Rule 1:21-2 and judicial interpretation created
a reasonable expectation and thereby a protectable interest under
the Fourteenth Amendment and the Privileges and Immunities
Clause of the United States Constitution. The Appellate Division
denied plaintiff’s appeal in an Order dated July 12, 1982. Plaintiff
then sought to appeal the Interlocutory Order of the Appellate
Division to the New Jersey Supreme Court; however, this motion
was also denied by an Order dated October 26, 1982. Accordingly,
plaintiff presently seeks review of the ruling of Judge DiMartino
and a declaratory judgment that the denial of plaintiff’s admission
pro hac vice in the absence of a specific finding that he is unfit
or justifiable reason for exclusion, constitutes a violation of his
rights under Article IV §2 and the Fourteenth Amendment of
the Constitution of the United States.
Defendants oppose plaintiff’s contentions and presently move,
under Fed.R.Civ.P. 12(b)(6), for dismissal of plaintiff’s complaint
based upon Leis v. Flynt, 439 U.S. 438 (1979). In that case the
Supreme Court granted certiorari and reversed the judgment of
the Court of Appeals, holding that where pro hac vice admission
is in the discretion of the trial court there exists no enforceable
claim of entitlement under the Due Process Clause of the
Fourteenth Amendment, nor is any federal constitutional interest
implicated under the Privileges and Immunities Clause or any other
provision of the United States Constitution.
Plaintiff has filed no responsive brief in the present matter.
In fact, Ms. Tanker has advised the Court, by letter dated
December 12, 1983, that in light of Leis v. Flynt, she ‘‘believe{s]
that defendants’ Motion should be granted and. . . [does] not
intend to file a brief in opposition thereto.’’ A review of the
Supreme Court Opinion in Leis clearly demonstrates that plaintiff
6a
Letter-Opinion
may not maintain his purported claims asserted in this action.
Accordingly, defendants’ motion to dismiss the complaint shall
be granted. A copy of an Order entered today reflecting this
decision is enclosed.
Very truly yours,
s/ JOHN W. BISSELL
UNITED STATES DISTRICT
JUDGE
JWB/ebj
Enclosure (copy of Order)
7a
Letter-Opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action 83-2102
(HONORABLE JOHN W. BISSELL)
HENRY FITZPATRICK,
Plaintiff,
¥.
I.V. DI MARTINO, A.J.S.C., etc., et al.
Defendants.
This matter having been opened to the Court by defendants’
motion to dismiss the complaint pursuant to Fed. R. Civ. Proc.
12(b)(1) and/or (6) and the Court having considered briefs and
oral argument of counsel and good cause having been
demonstrated.
IT IS on this 26th day of January, 1984,
ORDERED that defendants’ motion to dismiss the complaint
pursuant to Fed. R. Civ. Proc. 12(b)(6) be granted.
s/ JOHN W. BISSELL
U.S.D.C.J.
8a
TRANSCRIPT OF HEARING DATED MAY 21, 1982
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION, GLOUCESTER CO.
DOCKET L-44136-31
RICHARD W. COLEMAN, et ux
vs.
ROY L. GORIN
May 21, 1982
Before: 1.V. DiIMARTINO, A.J.S.C.
Present: PRINCIPATO & HANIFEN, ESQ.,
By: DIANA B. GITTELMAN, ESQ.,
for the Plaintiffs
Reported by;
Harry J. Bateman, C.S.R.
Rm. 602 Court House,
Camden, N.J. 08101
{2} MS. GITTLEMAN: This is my motion, your Honor,
to have Henry FitzPatrick of the law firm of Liebert, Short,
FitzPatrick and Lavin of Philadelphia, Pennsylvania, be admitted
pro hac vice. Mr. FitzPatrick is present in court if the Court wishes
to address any questions or comments to him.
THE COURT: Idon’t. I want to hear what makes this case
sO unusual that counsel in New Jersey can’t try it.
9a
Transcript of Hearing
MS. GITTLEMAN: Your Honor, it is not a question of
counsel in New Jersey not being competent to try the case. What
makes this case so special is the relationship Mr. Coleman has
evolved.
THE COURT: There is nothing before me to tell me what
that relationship is.
MS. GITTELMAN: Well, I believe in my affidavit, your
Honor, I stated they have had a relationship for some ten months.
THE COURT: Your affidavit merely indicates to me there
has developed a relationship, a client-attorney relationship.
MS. GITTLEMAN: Yes, Your Honor. If I may expand
on that at this time, perhaps I [3] can —
THE COURT: Just a minute.
All you say is that counsel, Mr. FitzPatrick, had established
an attorney-client relationship with the plaintiff and has twenty-
five years experience in medical malpractice litigation. I would
assume anytime an attorney represents a client that he has
established an attorney-client relationship.
MS. GITTELMAN: Yes, Your Honor, Perhaps my
affidavit did not go into the heart of that relationship sufficiently.
THE COURT: Wouldn’t that be hearsay? Shouldn’t you
have an affidavit from Mr. FitzPatrick or from the client? |
MS. GITTELMAN: I have an affidavit from both of them,
Your Honor. They, perhaps, do not sufficiently go into the nature
of the relationship.
10a
Transcript of Hearing
THE COURT: They don’t tell me anything about it. Mr.
Coleman merely tells me in his affidavit that he requests that the
Court permit Mr. FitzPatrick to represent him, period.
Mr. FitzPatrick tells me about his expertise, which I do net
doubt in the least, [4] and that he is a member of the Trial Lawyers
Association, period. He just tells me about himself.
MS. GITTELMAN: Well, Your Honor, for that reason,
I did bring Mr. FitzPatrick with me today if the Court wishes
to hear from him.
THE COURT: Just tell me what the special relationship is.
MS. GITTELMAN: Well, Your Honor, Mr. Coleman
initially contacted Mr. FitzPatrick to represent him in this matter
and as a result of tiat initial contact, Mr. FitzPatrick has been
very instrumental in obtaining medical treatment which Mr.
Coleman otherwise would not have been in a position to know
about. Mr. FitzPatrick has found one of the two specialists in
the entire country who is familiar with the treatment of this specific
type of injury, an affliction from which Mr. Coleman suffers
and he has arranged for Mr. Coleman to be treated by this doctor
at the University of Pennsylvania Hospital, and through his very
intimate participation in Mr. Coleman’s medical care, [ believe
a very close relationship has developed between the two individuals,
and Mr. Coleman, and, again, this is [5] hearsay, has indicated —
THE COURT: I will accept your hearsay statement.
MS. GITTELMAN: That his relationship is more than that
of an attorney-client. It goes to the very nature of his physical
well-being and prognosis. He feels Mr. FitzPatrick has salvaged
lla
Transcript of Hearing
what has been very diastrous [sic] medically and led him to the
opportunity to get some possible way — that he could possibly
turn his condition around, but that hasn’t been indicated clearly.
He has established contact with Mr. Coleman and the specialist
in Philadelphia, and visited with him on numerous occasions in
receiving corrective therapy at the University of Pennsylvania
Hospital.
THE COURT: I fail to see what all that has to do with
who tries the case.
MS. GITTELMAN: It has to do with Mr. Coleman’s
confidence in Mr. FitzPatrick and a close relationship.
THE COURT: I accept the fact that Mr. Coleman has
confidence in Mr. FitzPatrick. Aren’t there other criteria to be
established before we can permit outside counsel to try a [6] case
here in Camden County?
MS. GITTELMAN: Well, Your Honor, I think the criteria
has been established in the papers which I have submitted. Mr.
FitzPatrick is a member in good standing of the Bar of
Pennsylvania. I would also note he had on one occasion made
an appearance some years ago in the State of New Jersey. He
has not appeared pro hac vice within the past several years. I
believe, although I am aware the matter is in the Court’s discretion,
I believe the situation warrants his admission.
THE COURT: Anything else you want to say?
MS. GITTELMAN: No.
THE COURT: Do you want to say something, Mr.
FitzPatrick?
12a
Transcript of Hearing
MR. FITZPATRICK: Yes, I would, if I might.
THE COURT: All right.
MR. FITZPATRICK: What Mis. Gittelman is saying, is that
Mr. Coleman has had a history, it is almost unbelievable, his
medical history for the last twenty years, since he was twenty years
old. He had a serious fracture of his leg, [7] and he has spent
literally years in body casts. He has had treatments by doctors
all over the worid. He had this incident that occurred with respect
to treatment he got in Williamstown. He came to me and | think
Mr. Coleman feels I have taken up his cause because he found
somebody that he can place trust in and place himself in. I have
obtained treatment for Mr. Coleman in the University of
Pennsylvania Hospital. All these things Ms. Gittelman has
mentioned.
I think, really, Your Honor, the most important thing is that
I just don’t think another new face would be good for Mr.
Coleman. There is no question there are competent attorneys in
Camden County or Gloucester, New Jersey, to handle this case.
There is no question about that. We make no such assertion. I
just feel for Mr. Coleman’s well-being in this case I would be
better to represent him than anybody else.
Now, we are going to have counsel sitting along with us in
this trial.
THE COURT: That is mandatory, sir.
MR. FITZPATRICK: No question about it, Your Honor.
I just don’t feel there is any [8] affront to the Court System of
New Jersey. None is intended. I have been practicing across the
13a
Transcript of Hearing
river, Your Honor, for twenty-six years now. I have only been
in this building once and that is the only time I have had a case
in New Jersey. We sent many, many cases here to Camden County,
Gloucester County, Burlington County lawyers. There is no
question they are competent to handle the cases. I would just
request, Your Honor, in the exercise of its discretion, to grant
this request in this particular matter.
THE COURT: Iamconcerned about changing precedent.
I have been the Assignment Judge of Camden County for about
eight months. I have only allowed the admission pro hac vice
once, and even that case I would not have allowed it had my
predecessor not already verbally ruled that application should be
granted. I felt obligated in that case not to demean the integrity
of my predecessor by overruling him, even though no official
order was entered. The application has to be based on a lot of
distinguishing factors. First of all, and I believe you may have
read the decision written by my colleague, Judge Haines, who
is now the [9] Assignment Judge in Burlington County, in the
case of Burlington Co. Internal Medicine Associates vs. American
Medicorp which appears at 168 New Jersey, Super 362. He
indicates there must be evidence before the Court that foreign
counsel is of good standing in his own state. I have absolutely
no doubt of that in this case. The opinion also indicates foreign
counsel by affidavit should indicate that he has maintained his
competency as an attorney particularly in any specialization which
he claims, and I am completely satisfied that is so here. There
must be an indication by the client that he wishes to be represented
by the foreign attorney, and that is certainly true here. However,
there also has to be shown good cause showing that the case
involves a complexed field of law, and no one here is going to
in anyway imply to me, nor can I accept that a medical malpractice
case is foreign to the intelligence and competency of local counsel.
We try these cases in this court house daily in large numbers.
14a
Transcript of Hearing
There also has to be shown a long-held attorney-client
relationship, I don’t see any such relationship here. There is a
relationship [10] that arises out of this case. The case that Judge
Haines decided was a case where the attorney had represented
this company for a number of years, did all their work. This
relationship — that is why I specificaliy asked you what the
relationship was — this relationship is only by virtue of this case,
not by virtue of any longstanding relationship between counsel
and his client. :
Even more importantly, the next item, there must be shown
a lack of local counsel with expertise in the field involved. I have
already indicated, as a matter of fact, J consider your firm very
competent. There are attorneys in this county and Gloucester
County who try medical malpractice cases on a daily basis, very
difficult ones. I don’t see anything complexed about this case
that New Jersey counsel cannot handle. There may be legal
questions involving rules of foreign jurisdiction, but that is not
here.
Lastly, there exists a need for extensive discovery proceedings
in foreign jurisdictions. I recognize a lot of the medical has to
come out of Pennsylvania, but Pennslyvania [11] is across the
river. We are not talking about going to California or Chicago.
After weighing all the pros and cons, I just do not feel this is
the appropriate case tor counsel from a foreign jurisdiction should
be permitted to try this case.
The application is denied.
1Sa
Transcript of Hearing
CERTIFICATION
I, HARRY TI. BATEMAN, Notary Public of the State of
New Jersey, hereby certify that the foregoing is a true and correct
transcript from my original stenographic notes taken by me in
the captioned matter.
s/ Harry J. Bateman
Harry J. Bateman, C.S.R.
Notary Public
l6a
COMPLAINT FOR PRELIMINARY AND PERMANENT
INJUNCTION AND DECLARATORY JUDGMENT
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GARY CUTLER, ESQUIRE
Attorney for Plaintiff
Mainline Shopping Center
Florelle Plaza
Cinnaminson, NJ 08077
(609) 829-9094
HENRY B. FITZPATRICK, JR.
1200 One Franklin Plaza
Philadelphia, PA 19103
I. V. DiMARTINO, A.J.S.C.
In His Capacity as Judge of the Superior Court, Law Division
Gloucester County, New Jersey
1 North Board Stree’
Woodbury, NJ 08096
and
THE SUPERIOR COURT
Law Division
Gloucester County, New Jersey
1 North Broad Street
Woodbury, NJ 08096
17a
Complaint
COUNT |!
JURISDICTION
1. This is a civil action in which original jurisdiction is vested
in this Court by virtue of Article III, Section 2, of the Constitution
of the United States, 28 U.S.C. §1343(3) and 1343(4), and 42
U.S.C. §1983. Plaintiff prays that a preliminary and permanent
injunction issue to restrain defendants from acting under color
of state law, custom and usage to deprive plaintiff of rights secured
to him by the Constitution and the Laws of the United States
and plaintiff prays for a declaratory judgment of the rights secured
to him by the Constitution and the Laws oi the United States.
The right to injunctive relief is founded on Rule 65 of the Federal
Rules of Civil Procedure and 28 U.S.C. §2201 and §2202.
PARTIES
2. Plaintiff, Henry B. FitzPatrick, Jr., is a resident of the
Commonwealth of Pennsylvania and is licensed to practice law
in the Commonwealth of Pennsylvania, and is a member in good
standing of the Bar.
3. The Honorable I. V. DiMartino is named a defendant
in his capacity as Judge of the Superior Court, Law Division,
Gloucester County, New Jersey. He presided over the hearing
on a motion to permit the admission before the Court, pro hac
vice, of Henry B. FitzPatrick, Jr., Esquire, as additional counsel
for Richard W. Coleman in proceedings captioned Richard W.
Coleman, et al. v. Roy L. Gorin, Docket No. L-44136-81 of said
Court.
4.-The Superior Court, Law Division, Gioucester County,
New Jersey, is named as defendant in its capacity as a court
Complaint
established and authorized by the laws of the State of New Jersey
to exercise jurdisdiction over proceedings captioned Richard W.
Coleman, et al. v. Roy L. Gorin, Docket No. L-44136-81.
SUMMARY OF THE COMPLAINT
5. This is an action under, inter alia, §1983 of Title 42 of
the United States Code. The Complaint seeks a judgment declaring
the rights >* nlaintiff attorney FitzPatrick to represent one Richard
W. Coleman a. ditional counsel in civil proceedings captioned
Richard W. Coleman, et al. v. Roy L. Gorin, Docket No.
L-44136-81, based upon the absence of a specific finding pursuant
to a hearing that plaintiff FitzPatrick is unfit or that substantial
reasons exist that would justify his exclusion.
6. The plaintiff further seeks a judgment granting a
preliminary and permanent injunction compelling defendants to
admit him pro hac vice for purposes of representing Richard W.
Coleman in civil proceedings captioned Richard W. Coleman, et
al. v. Roy L. Gorin, Docket No. L-44136-81, based upon the
absence of a specific finding pursuant to a hearing that he is unfit
or that substantial reasons exist which would justify his exclusion
on the grounds that to do otherwise would amount to a deprivation
of his constitutional rights under color of state law.
HISTORY OF PROCEEDINGS
7. On or about -May 7, 1981, a Complaint captioned Richard
W. Coleman, et al. v. Roy L. Gorin, was filed in the Superior
Court of New Jersey, Law Division, Gloucester County, New
Jersey, Docket No. L-44136-81, by Diana B. Gittleman, Esquire,
a member of the Bar of the State of New Jersey. Said Complaint
alleges that the defendant’s medical malpractice caused plaintiff
serious injury.
ee
19a
Complaint
8. Shortly prior to May 21, 1982, Diana B. Gittleman,
Esquire, moved for an Order permitting the admission before the
Court, pro hac vice, of plaintiff, attorney FitzPatrick, as additional
counel for Richard W. Coleman.
9. On May 21, 1982, a hearing on the Motion was held before
defendant DiMartino. Affidavits were presented and testimony
of Diana B. Gittleman, Esquire, and plaintiff FitzPatrick were
heard. Defendant DiMartino stated as follows:
**The Court: I am concerned about changing
precedent. I have been the Assignment Judge of
Camden County for about eight months. I have
only allowed the admission pro hac vice once, and
even that case I would not have allowed it had
my predecessor not already verbally ruled that
application should be granted.’’ (Hearing
transcript, p. 8). (Defendant DiMartino is also the
Assignment Judge for Gloucester County.)
10. Defendant DiMartino stated that his action under N.J.
Court Rules, 1969, R.1:21-2 was governed by the case of
Burlington County Internal Medicine Associates, P.A. v. American
Medicorp, Inc., 168 N.J. Super. 382, 403 A.2d 43 (Chan. 1979).
(Hearing transcript p. 9).
11. Paraphrasing that case, Defendant DiMartino listed those
things which a non-resident of New Jersey must establish in order
to be permitted to appear for his client in a New Jersey Court:
“*He [the Judge who wrote the Burlington County
opinion] indicates there must be evidence before
the court that foreign counsel is of good standing
20a
Complaint
in his own state. I have absolutely no doubt of
that in this case.’’
‘*The opinion also indicates foreign counsel by
affidavit should indicate that he has maintained
his competency as an attorney particularly in any
specialization which he claims, and I am completely
satisfied that is so here.’’
‘‘However, there also has to be shown good cause
showing that the case involves a complex field of
law, and no one here is going to in any way imply
to me, nor can I accept that a medical malpractice
case is foreign to the intelligence and competency
of local counsel.’’
‘*There also has to be shown a longheld attorney-
client relationship. I don’t see any such relationship
here. There is a relationship that arises out of this
case. The case that Judge Haines decided [the
Burlington County case] was a case where the
attorney had represented this company for a
number of years, did all their work.’’
‘*Even more importantly, the next item, there must
be shown a lack of local counsel with expertise
in the field involved. I have already indicated, as
a matter of fact, I consider your firm very
competent ...I don’t see anything complexed
[sic] about this case that New Jersey counsel cannot
handle.’’ (Hearing transcript p. 9, 10).
Defendant DiMartino denied the Motion at the hearing and
in a written Order dated June 7, 1982.
2la
Complaint
12. On June 22, 1982, Diana B. Gittleman, Esquire, filed
a Motion for Leave to Appeal Interlocutory Order in the Superior
Court, Appellate Division, which Motion was assigned Docket
No. AM-925-81T1, Motion No. M-4160-81.
13. On July 12, 1982, the Motion was denied by the
Honorable Theodore I. Botter, Presiding Judge of Part I, Superior
Court of New Jersey, Appellate Division.
14. On July 28, 1982, Gary B. Cutler, Esquire, having been
substituted for Diana B. Gittleman, Esquire, filed a Motion for
Leave to Appeal Interlocutory Order in the Supreme Court of
New Jersey, which Motion was designated M-159 September Term,
1982, No. 20224.
15. On October 26, 1982, the Supreme Court of New Jersey
issued an Order denying the Motion.
LAWYER-CLIENT RELATIONSHIP
16. The relationship between plaintiff FitzPatrick and
Richard W. Coleman is unique in that FitzPatrick is not only
involved with the legal aspects of the civil proceedings, but is
involved with and was instrumental in obtaining medical treatment
for Coleman’s very severe injury.
17. It was through the efforts of FitzPatrick that Coleman
is now being treated by a physician at the Hospital of the University
of Pennsylvania who is one of only two physicians in the United
States specializing in the electrical stimulation of bone growth.
18. The nature of the relationship is such that Coleman has
particular trust and confidence in FitzPatrick and desires
FitzPatrick to represent him.
22a
Complaint
19. The nature of the relationship was presented to defendant
DiMartino at the hearing of May 21, 1982.
QUALIFICATIONS OF HENRY B. FITZPATRICK, JR.
20. The plaintiff, Henry B. FitzPatrick, Jr., is a graduate
of the University of Pennsylvania Law School from where he
received an LL.B. in 1956 and served as Editor of the Law Review.
He was admitted to the Bar of the Commonwealth of Pennsylvania
in 1957.
21. The plaintiff, FitzPatrick, has been admitted and is a
member in good standing of the following Courts: United States
Court of Appeals for the Third Circuit, United States District
Court for the Eastern District of Pennsylvania, United States
District Court for the Midtlle District of Pennsylvania, the Supreme
Court of Pennsylvania, the Superior Court of Pennsylvania, and
the Commonwealth Court of Pennsylvania.
22. The plaintiff, FitzPatrick, has been admitted pro hac vice
and tried and argued cases in the following Federal Courts: United
States District Court for the Northern District of Illinois, United
States District Court for the District of Maryland, United States
District Court for the District of Delaware, United States District
Court for the District of Columbia, and United States District
Court for the District of New Jersey.
23. The plaintiff, FitzPatrick, has been admitted pro hac vice
and tried and argued cases in State courts in the following states:
Delaware, Maryland, New York and New Jersey.
24. The plaintiff FitzPatrick is a member in good standing
of the following associations: American Trial Lawyers Association,
|
23a
Complaint
Pennsylvania Trial Lawyers Association, Philadelphia Trial
Lawyers Association, American Bar Association, Pennsylvania
Bar Association and Philadelphia Bar Association.
VIOLATION OF PLAINTIFF’S RIGHTS
25. The refusal to permit plaintiff FitzPatrick to be admitted
pro hac vice in the absence of a specific finding that he is unfit
or that substantial reasons exist which would justify his exclusion
constitutes a violation of his rights under Article IV, §2 of the
United States Constitution (the Privileges and Immunities Clause),
and under the Fourteenth Amendment to the United States
Constitution.
26. in addition, upon information and belief, other out-of-
state counsel, equally and similarly situated, and under equal and
similar circumstances as those presented here, are and have been
admitted pro hac vice by various judges of the Superior Court
of New Jersey.
27. The conduct of the defendants herein committed under
color of state law violates, inter alia, the plaintiff’s rights to due
process and equal protection, as well as his rights to maintain
a lawyer-client relationship, to freely engage in his chosen
profession, and to be unrestricted in travel for such purposes.
28. Plaintiff has exhausted all available state remedies and
has no adequate remedy at law available to him.
WHEREFORE, Henry B. FitzPatrick, Jr., respectfully
demands judgment against the defendants for the following relief:
24a
Complaint
1) For an Order directing that the civil proceedings
captioned Richard W. Coleman, et al. v. Roy L. Gorin, Docket
No. L-44136-81 in the Superior Court of New Jersey, Law
Division, Gloucester County, are stayed until such time as the
instant action is finally determined.
2) For a judgment declaring the refusal to permit his
admission pro hac vice in the absence of a specific finding that
he is unfit or that substantial reasons exist which would justify
his exclusion constituties a violation of his rights under Article
IV §2 of the United States Constitution and under the Fourteenth
Amendment to the United States Constitution; and
3) For a preliminary and permanent injunction enjoining
the defendants from preventing his admission pro hac vice as
additional counsel for Richard W. Coleman in the civil proceedings
captioned Richard W. Coleman, et al. v. Roy L. Gorin, Docket
No. L-44136-81; and
4) For such other and further relief as the Court shall
deem appropriate, together with costs and disbursements of this
action.
s/Gary B. Cutler
GARY B. CUTLER, ESQUIRE
Attorney for Plaintiff
25a
Complaint
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GARY B. CUTLER, ESQUIRE
Attorney for Plaintiff
Mainline Shopping Center
Florelle Plaza
Cinnaminson, NJ 08077
(609) 829-9094
HENRY B. FITZPATRICK, JR.
I.V. DIMARTINO, A.J.S.C.
In His Capacity as Judge of the Superior Court
Law Division
Gloucester County, NJ
and
THE SUPERIOR COURT
Law Division
Gloucester, NJ
CERTIFICATION OF SERVICE
I, Gary B. Cutler, Esquire, hereby certify that a copy of the
Complaint for Preliminary and Permanent Injunction and
Declaratory Judgment was mailed via Certified Mail, Receipt
Requested, on May 2, 1983 to the following:
I. V. DiMartino, A.J.S.C.
In His Capacity as Judge of the Superior Court
Law Division
26a
Complaint
Gloucester County, New Jersey
1 North Broad Street
Woodbury, NJ 08096
The Superior Court
Law Division
Gloucester County, New Jersey
1 North Broad Street
Woodbury, NJ 08096
s/Gary B. Cutler
GARY B. CUTLER, ESQUIRE
Attorney for Plaintiff,
Henry B. FitzPatrick, Jr.
ee
27a
MOTION FOR ADMISSION OF COUNSEL PRO HAC VICE
PRINCIPATO AND HANIFEN
519 Federal Street - Suite 304
Camden, New Jersey 08103
(609) 964-0405
Attorneys for Plaintiffs
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
GLOUCESTER COUNTY
DOCKET NO. L-44136-81
CIVIL ACTION
RICHARD W. COLEMAN, et ai,
Plaintiffs,
VS.
ROY L. GORIN,
Defendant.
TO: Roy L. Gorin
Washington Medical Towers
Turnersville, NJ 08012
PLEASE TAKE NOTICE that on the 2lst day of May, 1982,
the undersigned attorney for the plaintiff will move for an Order
' permitting the admission before this Court, pro hac vice, of Henry
B. FitzPatrick, Jr., Esquire, as additional counsel for the plaintiff,
pursuant to R.1:21-2 of the New Jersey Court Rules.
[_
28a
Motion for Admission of Counsel Pro Hac Vice
The plaintiff will rely on the attached Affidavits.
It is hereby requested that this Motion be submitted to the
Court for ruling on the papers pursuant to R.1:6-2.
PRINCIPATO AND HANIFEN
BY: DIANA B. GITTELMAN
Attorneys for the Plaintiff
DATED: April 30, 1982
PRINCIPATO AND HANIFEN
519 Federal Street - Suite 304
Camden, New Jersey 08103
(609) 964-0405
Attorneys for Plaintiffs
29a
Motion for Admission of Counsel Pro Hac Vice
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
GLOUCESTER COUNTY
DOCKET NO. L-44136-81
CIVIL ACTION
RICHARD W. COLEMAN, et al,
Plaintiffs,
VS.
ROY L. GORIN,
Defendant.
STATE OF NEW JERSEY
CCUNTY OF CAMDEN as
DIANA B. GITTELMAN, of full agc, being duly sworn
according to law, upon her oath deposes and says:
1. I am an attorney at law licensed to practice in the State
of New Jersey and represent the plaintiff, RICHARD W.
COLEMAN, in the above-captioned action. I am submitting this
Affidavit in support of my Motion for Admission of Counsel!
Pro Hac Vice.
2. Good cause exists tc admit Henry B. FitzPatrick, Jr.,
Esquire, of the firm of Liebert, Short, FitzPatrick, and Lavin,
1200 One Franklin Plaza, Philadelphia, Pennsylvania, as additional
30a
Motion for Admission of Counsel Pro Hac Vice
counsel in this matter as Mr. FitzPatrick has an established
attorney-client relationship with the plaintiff and has had 25 years
experience in medical malpractice litigation. The plaintiff herein
is currently recuperating from surgery which was performed at
the University of Pennsylvania Hospital on the afflicted leg which
is the subject matter of this litigation. Both his treating physicians,
2s well as those physicians who will be called as experts by the
plaintiff, are located in Pennsylvania, necessitating the conduct
of extensive discovery in that jurisdiction.
3. For the reasons aforesaid, it is respectfully requested that
Henry B. FitzPatrick, Jr., Esquire, be admitted pro hac vice as
additional counsel in the above-captioned action.
PRINCIPATO AND HANIFEN
BY: DIANA B. GITTELMAN
Sworn and Subscribed to
before me this 30th day
of April, 1982.
s/ Mary E. Scarduzio
Notary Public of New Jersey
My Commission Expires 3-26-84
3la
Motion for Admission of Counsel Pro Hac Vice
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
GLOUCESTER COUNTY
RICHARD W. COLEMAN, et ux
Plaintiffs
vs.
ROY L. GORIN
Defendant
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA :
SS
COUNTY OF PHILADELPHIA :
I, RICHARD W. COLEMAN, being duly sworn according
to law depose and state that I am the plaintiff in the within action
and I respectfully request that the Court permit Henry B.
FitzPatrick, Jr., Esquire, of the law firm of Liebert, Short,
FitzPatrick & Lavin, Philadelphia, Pennsylvania, to represent me
in the New Jersey Court in the above captioned action.
‘s/ RICHARD W. COLEMAN
Sworn to and Subscribed:
Before me this 29th day:
Of April 1982:
32a
Motion for Admission of Counsel Pro Hac Vice '
s/ Deborah Short
NOTARY PUBLIC Phila., Phila. Co.
My Commission Expires Aug. 11, 1984
33a
Motion for Admission of Counsel Pro Hac Vice
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
RICHARD W. COLEMAN, et ux
Plaintiffs
vs.
ROY L. GORIN,
Defendant
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA :
SS
COUNTY OF PHILADELPHIA
HENRY B. FITZPATRICK, JR., ESQUIRE, being duly
sworn according to law deposes and says that he has been a
practicing lawyer specializing in the trial of personal injury cases
for plaintiffs since 1957, including medical malpractice cases. The
medical malpractice cases have included claims against orthopaedic
surgeons, meurosurgeons, gynecologists, gastroenterologists,
general surgeons, radiologists and dentists. Counsel is a member
of the American Trial Lawyers Association, the Pennsylvania Trial
Lawyers Association and the Philadelphia Trial Lawyers
Association and has attended seminars on the trial of medical
malpractice cases given by those associations.
s/ Henry B. Fitzpatrick, Jr.,
Esquire
34a
Motion for Admission of Counsel Pro Hac Vice
Sworn to and Subscribed: Before me this 29th day:
Of April, 1982:
s/ Deborah Short
NOTARY PUBLIC
Phila., Phila. Co.
My Commission Expires Aug. 11, 1984
35a
Motion for Admission of Counsel Pro Hac Vice
SUPREME COURT OF PENNSYLVANIA
know all men by these presents,
THAT Henry B. Fitzpatrick, Jr. was duly admitted to the
Bar of the Commonwealth of Pennsylvania on the 15th day of
April 1957, and is now a qualified member in good standing.
Witness my hand and official seal
this 26th day of April A.D. 1982
s/ Marlene Lachman
Prothonotary
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.