# Petition for Writ of Certiorari — Tolchin v. Supreme Court of New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1172%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 977 ## Text DO No. 97% +209 WL 311997 OFFICé OF THE CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1997 od ROBERT J. TOLCHIN, individually and on behalf of all others similarly situated, Petitioner, —_V.— THE SUPREME COURT OF THE STATE OF NEW JERSEY, ROBERT WILENTZ (intended to be the Chief Judge of the Supreme Court of New Jersey) STEPHEN W. TOWNSEND (intended to be the Clerk of the Supreme Court of New Jersey), THE NEW JERSEY STATE BOARD OF BAR EXAMINERS, SAMUEL J. UBERMAN (intended to be the Assistant Secretary of the New Jersey Supreme Court who plaintiff believes to direct the State Board of Bar Examiners) THE NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION, and JOSEPH J. HOGYA (intended to be the Institute for Continuing Legal Education Skills Training Course Director), Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PETITION FOR A WRIT OF CERTIORARI ROBERT J. TOLCHIN, ESQ. DAVID JAROSLAWICZ, ESQ. Petitioner Pro-se (Counsel of Record) 150 William Street, 19th Floor JAROSLAWICZ & JAROS New York, New York 10038 150 William Street, 19th Floor (212) 227-2181 New York, New York 10038 (212) 227-2780 ESTI PRESENTED The judgment below presents the following issues for review: 1. Does the United States Constitution permit a state to require lawyers duly licensed to practice law in the state to maintain a full-fledged office where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney's behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time? 2. Does such an in-state office requirement offend the dormant aspect of the Commerce Clause? 3. Does the United States Constitution permit a state to require lawyers duly licensed to practice law in the state and newly admitted to the state’s bar to attend a two year long sequence of classes which are only offered within the borders of the state and which are usually presented on videotape which could just as well be presented outside the state or watched by lawyers on their own at home or in their offices? PARTIES TO THE PR EDIN There are no parties to this case other than those appearing in the caption. The defendant Robert W. Wilentz was at the time this action was commenced the Chief Judge of the Supreme Court of New Jersey. Since the commencement of this action, Judge Wilentz became ill and resigned from the bench. Subsequently, Judge Wilentz unfortunately passed away.’ After Judge Wilentz resigned from the bench, Deborah Poritz, who was the New Jersey Attorney General and who represented the state defendants in this action, was appointed Chief Judge of the Supreme Court of New Jersey. ' The New York Times reported that Judge Wilentz died in his apartment in Manhattan. This is rather ironic, considering the position taken by the defendants in this case that in order to practice law in New Jersey a lawyer must have an office in New Jersey. If the Chief Judge could live in Manhattan and preside over a court in New Jersey, why should lawyers not be permitted to have their offices in Manhattan and practice in New Jersey? et TABLE OF CONTENTS RIE WINE ooo. nccessassceccacecseoscarsnsecscasesseesonssseess i POURED OD CTS POCCOMING. ..............0..cc.cccesscesvsesesesesecsceseee: ii soos veavehsesecensvevnrsavscoses iii eT a suvsnscsos ovscvesesislalidasssiconnoen. iv Petition for a Writ of Certiorarin...........cccccccccccececceseseseecee. ] acs cassspncshcadbuavaasicncas 2 Statement of Jurisdiction........0.0.0cccecccccccecceccecceceeee. 2 SIE HE ON sss cnsnnsssecvavessvnscveisasoveseoacese 17 Reasons for Granting the Writ...........0.cccccccceccceeeeeeee: 29 ern eaclnaiecdevwcasessiacleceiscuuevavsiveserces 39 Appendix Decision of the Third Circuiit.......000.0ccccccccccccesceseeceee, la Order of the District Court......................ccccccsccssssoees. 4la United States Constitution, art. I, § 8, clause 3... 79a NJ. Cr. R. 1:21-1 (1997) (current version) ........ 80a N.J. Ct. R. 1:21-1 (1995) (before June 28, 1996 amendment effective September 1, 1996)...... 86a I A I ao ca sss wisecesessnvniesucecsenrsedacversssaveonsesaneses 92a TABLE OF AUTHORITIES ase Barnard v. Thorstenn, 489 U.S. 546, 555 (1989) ............... 21 Brown-Forman Distillers Corp. v. New York Liquor Authority, 476 U.S. 573 (1986) ......... cece 33-34 City of Cleburne v. Cleburne Living Center, 473 U.S. sR RCE RARE AMICI anY eared 38 City of Philadelphia v. New Jersey, 437 U.S. 617, 614 RII 50h cscs ds circu taka ons aeelasanin mneasaledipaganasiacens 28 Frazier v. Heebe, 482 U.S. 641, 649 (1987) 21, 23, 31, 34-36 Institutional Sys., Inc. v. Computer Curriculum Corp., SS FB S15, C24 (GG Cie, VOID) on siccvceccssiiceeenccaseness 33 Matter of Kasson, 141 NJ. 83, 660 A.2d 1187 (1995) ....... 36 Pike v. Bruce Church, 397 U.S. 137 (1970) ..........ee. 33-34 In re Sackman, 90 NJ. 521, 448 A.D.2d 1014 (1982) ........ 31 Supreme Court of New Hampshire v. Piper, 470 U.S. FE, BD i rsicinigpbtnommenctaounsensen 22, 30, 32 Supreme Court of Virginia v. Friedman, 487 U.S. 59, 2. WA eliN Men edcteen ORR NDie a IOP oP Sanne DRIED SPER 31 Tolchin v. The Supreme Court of the State of New Jersey, 111 F.3d 1099 (3d Cir. 1997) ...00.0...... passim Tolchin v. The Supreme Court of the State of New Jersey 1995 U.S. Dist. LEXIS 21518 (D.N J. 1996) (Cavanaugh, U.S.M)J.) ....... eee passim Constitutional Provisions, Statutes and Rules US, Comet. at 1, 0G, Ce 3s. passim iv —— er Aas RR OF iiiisncisntaiominencannnanicnaeuuercen 2 ee Sa IE iciatncsccxsnmedsireiumniresanaaadaaseh a tae 17 a Eee TIE ssariasenesisknsiuaserteaeendmseaooceneetecmmplinra eee 17 OG Shi Oe SN oscil cessereicanunasaenanemeeanerscla aun 17 New Jersey Constitution, art. 6, § 2,93. ...0..0ccccecceeee. 17 Fe. Gas Oe Soke LEE? occtatedroreeen eee passim Pe Be Sk Ss So A Ds ccicomstitcecdescesucane eames passim Ps RU SOE, Ph I i sss Ges seensoeneceaereed eee Be Other Authority THE FEDERALIST No. 22 (Alexander Hamilton).............. 32-33 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 ROBERT J. TOLCHIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Petitioner, -against- SUPREME CourRT OF NEw JERSEY, ROBERT N. WILENTZ (INTENDED TO BE THE CHIEF JUDGE OF THE SUPREME COURT OF NEW JERSEY), STEPHEN W. TOWNSEND (INTENDED TO BE THE CLERK OF THE SUPREME COuRT OF NEw JERSEY), NEW JERSEY STATE BOARD OF BAR EXAMINERS, SAMUEL J. UBERMAN (INTENDED TO BE THE ASSISTANT SECRETARY OF THE NEW JERSEY SUPREME COURT WHO PLAINTIFF BELIEVES TO DIRECT THE STATE BOARD OF LAW EXAMINERS), NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION AND JOSEPH J. HoOGyYA (INTENDED TO BE THE INSTITUTE FOR CONTINUING LEGAL EDUCATION SKILLS TRAINING CourRSE DIRECTOR), Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT PETITION FOR A WRIT OF CERTIORARI OPINIONS BELOW This petition seeks review of the judgment of the United States Court of Appeals for the Third Circuit, Tolchin v. The Supreme Court of the State of New Jersey, 111 F.3d 1099; 1997 U.S. App. LEXIS 9831 (3d Cir. 1997) (la), which affirmed the judgment of the United States District Court for the District of New Jersey dated December 14, 1995 (41a), which in turn adopted the report and recommendation of the Magistrate Judge, Tolchin v. The Supreme Court of the State of New Jersey 1995 U.S. Dist. LEXIS 21518 (D.NJ. 1996) (Cavanaugh, U.S.MJ.) (43a). A T OF ICTION In seeking review of the judgment of the United States Court of Appeals for the Third Circuit, petitioner invokes the certiorari jurisdiction conferred on this Court by 28 U.S.C. § 1254(1). The judgment which the plaintiff seeks to have reviewed was entered by the Clerk of the United States Court of Appeals for the Third Circuit on May 2, 1997, the same day as the opinion of that court was filed. This * Parenthetical page references denominated with an ‘a’ refer to pages of the appendix at the back of this petition. petition is timely since it is being brought within 90 days of that date. ~ There have been no applications for rehearing. STATEMENT OF THE CASE ee This is a civil rights case arising under 42 U.S.C. 8§ 1983 and 1985. Jurisdiction in the court of first instance was based on federai question jurisdiction, 28 U.S.C. 8 1331, as this case arises under a federal statute and the United States Constitution. Intr ion The State of New Jersey has vested the authority to regulate lawyers and the practice of law in the Supreme Court of the State of New Jersey (“New Jersey Supreme Court”). New Jersey Constitution, art. 6, § 2, 4 3. Exercising this authority, the New Jersey Supreme Court has adopted rules regulating the practice of law commonly known as the New Jersey Rules of Court. Two of these rules are at issue in this case. The first, N.J. Cr. R. 1:21-1 (1997), more commonly known as the bona fide office rule, requires a lawyer holding a license to practice law in the State of New Jersey to maintain an office in the State of New Jersey, without regard to the needs of the lawyer's practice. Few would be surprised to learn that a lawyer who wishes to practice law in the State of New Jersey must be graduated from an accredited law school, pass the New Jersey bar exam, pass the scrutiny of the character and fitness screening process and take an oath to support the laws of the State of New Jersey and the Constitution of the United States of America. Likewise, few would be surprised to learn that a lawyer who does not reside in New Jersey must designate the Clerk of the Supreme Court of the State of New Jersey (“New Jersey Supreme Court”) as his or her agent for the service of process. What many do find astonishing in this era of information technology, rapid communication, super- highways and jet air travel is that without regard to the nature of a particular lawyer's practice or the lawyer’s geographic location, New Jersey requires duly licensed lawyers who wish to actually practice law in the State of New Jersey to maintain a “bona fide office” someplace within the State of New Jersey, NJ. Cr. R. 1:21-1 (1997), and to complete a series of courses which are only offered within the geographic borders of the State of New Jersey, NJ. Cr. R. 1:26 (1997). A lawyer who fails to comply with these requirements is given a status of “ineligible to practice” and is subject to disciplinary action if he or she should practice law within New Jersey. The Bona Fi ice Rul The office requirement cannot be satisfied by arranging for a maildrop or an answering service. The rule ae Ann cle ANI IE RANE ABTA AM RN later le Met AT Pets lat gel Wane yond: requires a lawyer to maintain an actual office within the state where the lawyer can be reached and is actually present on a regular basis. A “bona fide office” is defined in the rule as:' more than a maildrop, asummer home that is unattended during a substantial portion of the year, an answering service unrelated to a place where business is conducted or a place where an on-site agent of the attorney receives and transmits messages only. For the purpose of this section, a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney's behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time. NJ. Cr. R. 1:21-1 (1997). This bona fide office requirement places an onerous burden on lawyers whose offices are located outside New Jersey and who wish to devote part of their time to ’ During the pendency of this action, the bona fide office rule was amended so that it is now even more stringent then it was at the time this action was commenced. The amended version was enacted on June 28, 1996 and became effective September 1, 1996, just ten days before this matter was argued in the Third Circuit. The Third Circuit was made aware of the amendment and its decision addressed the current version, rather than the older version which is no longer in effect. Both versions are reproduced for this Court in the “Statutes Involved” section of this petition. practicing law in New Jersey. For example, a lawyer (such as the plaintiff in our case) with an office in Manhattan who holds a New Jersey license to practice law may wish to represent a long-standing New York client in a matter that requires him to practice law in New Jersey, such as a lawsuit pending in a New Jersey court, an arbitration venued in New Jersey, a federal administrative proceeding being held in New Jersey, a corporate merger closing in New Jersey or negotiation of a labor dispute with a labor union headquartered in New Jersey. Despite the fact that the Manhattan lawyer has relatively easy access to the entire northern part of the State of New Jersey and can in fact arrive at the Federal District Court in Newark within thirty minutes on the PATH train,’ that lawyer is prohibited from undertaking such representation because he does not have an office in New Jersey. This office requirement is imposed notwithstanding the fact that the lawyer is every bit as able to represent his client from his New York office and his New York office is most convenient for his client. The result is that if this lawyer wishes to represent his client in New Jersey, he is compelled to hire a local New Jersey lawyer who need not actually do anything other than lend his name as counsel ? The PATH train is a rail link under the Hudson River operated by the Port Authority of New York and New Jersey, a quasi- governmental authority jointly owned by the states of New York and New Jersey in recognition of the fact that New York and New Jersey comprise one economic market within which commerce must be facilitated rather than hindered as is the effect of the “bona fide office” requirement. DE FE OM NS SSSI ye = Dd GS") ad Ahad» 8" of record and his office address to satisfy the bona fide office rule. This scenario may be both satisfactory and immensely profitable to lawyers- with offices in New Jersey who are able to parlay their captive New Jersey market into a lucrative source of fees from the clients of out-of-state lawyers who have legal matters in New Jersey. However, this bona fide office rule improperly encroaches upon the Constitutional right of lawyers licensed to practice in New Jersey but who have offices outside New Jersey to conduct their business in New Jersey, and particularly offends the Constitution’s Commerce Clause, U.S. Const., art I, § 8, clause 3. This litigation pressed the defendants to identify what purpose the bona fide office requirement serves and to make a showing that some legitimate state interest justifies the infringement of the right of lawyers with out- of-state offices to do business in New Jersey. The defendants took the position that the bona fide office rule is allegedly necessary in order to assure “competence, accountability and accessibility of attorneys for the benefit of clients, courts, counsel and parties.” Tolchin v. Supreme Court of New Jersey, 111 F.3d 1099, 1109 (3d Cir. 1997) (21a). Relying on this Couri’s decisions in Frazier v. Heebe, 482 U.S. 641, 649 (1987) (“the mere fact that an attorney has an office in [a jurisdiction] surely does not warrant the assumption that he or she is more competent than an out-of-state member of the state bar.”), Barnard v. Thorstenn, 489 U.S. 546, 555 (1989) (“We can assume that a lawyer who anticipates sufficient practice in[a jurisdiction] to justify taking the bar examination and paying the annual dues . . . will inform himself of the laws of the [jurisdiction].”) and Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 285 (1985) (Court will not assume that “a nonresident lawyer — any more than a resident — would disserve his clients by failing to familiarize himself with the [local law].”), the Third Circuit rejected the defendants’ arguments that the bona fide office requirement makes lawyers more competent. Tolchin, 111 F.3d at 1108-09, (20a). The Third Circuit also rejected the defendants’ argument that the bona fide office requirement increased attorney accountability, since New Jersey already requires all non-resident lawyers to designate the Clerk of the New Jersey Supreme Court as agent for service of process. Tolchin, 111 F.3d at 1109, (20a-2la) (citing NJ. Cr. R. 1:21-1(a)). The Third Circuit nevertheless upheld the bona fide office requirement for reasons hinging entirely on the notion that requiring a lawyer to have an office in New Jersey somehow “has a rational relationship to the benefit of attorney accessibility for clients, courts, counsel and parties.” Tolchin, 111 F.3d at 1009 (21a). The Court did not explain why requiring a lawyer licensed to practice in New Jersey but whose office is in Manhattan or Philadelphia to establish an office in New Jersey would : ; FB ye ore cee Le awn? ww necessarily make the lawyer any more accessible to clients, courts, counsel or parties. The obvious fallacy pervading the Third Circuit's reasoning is that requiring a lawyer to ensconce herself in an office somewhere in New Jersey does not necessarily make that lawyer more accessible than many lawyers with out-of-state offices. For example, a lawyer could satisfy the bona fide office requirement by having an office in Atlantic City, New Jersey, approximately two hours south of New York City, but that lawyer would be far less accessible to a court in a northern New Jersey city such as Newark, Jersey City or Hackensack than a lawyer with an office in Manhattan, who would be scarcely half an hour away. Similarly, a lawyer with offices in Philadelphia would be far more accessible to courts in southern New Jersey than a lawyer with an office satisfying the rule in northern New Jersey. If the rule required lawyers to have an office located within a specified number of miles from any courthouse where they wished to practice law, one could see how such a requirement would assure attorney accessibility. However, the rule followed in New Jersey does not bear a rational relationship to the ends of attorney accessibility. See, Frazier v. Heebe, 482 U.S. 641 2613 (1987) (holding that an in-state office requirement is “jrrational”). It is indisputable that a New Jersey court wishing to communicate with a lawyer located out-of-state need only send a letter through the mail, send a fax or call on the telephone. The mails are no less reliable when they cross state lines, faxes work just as well and inter-state telephone charges are no longer prohibitive as they were a generation or two ago.” The Third Circuit also failed to consider that the vast majority of lawyers, other than trial lawyers, are not litigators and thus rarely, if ever, need to be accessible to a court in the first place. Lawyers who draft wills, trusts or contracts, negotiate real estate transactions or corporate mergers and acquisitions, practice corporate, securities, labor, or customs law, engage in tax planning or specialize in federal appellate advocacy almost never have matters that require them to be accessible to a New Jersey court. Similarly, specialized lawyers who engage in practice before federal administrative forums such as Veterans’ Administration, Social Security or Immigration and Naturalization Service hearings have little reason to be required to be accessible to New Jersey courts. Yet all these lawyers are required by the bona fide office rule to maintain an office in New Jersey or be precluded from engaging in such practice of law in New Jersey. In contrast, Delaware’s parallel to New Jersey’s bona fide office rule permits licensed lawyers with offices out-of-state to practice law within the State of Delaware, with the narrow caveat that all papers filed with a * This is particularly so between New York and New Jersey, where the same telephone company, NYNEX, serves the New York City metropolitan area, including the northern portion of New Jersey, in recognition of the fact that the northern half of New Jersey forms part of the same natural market as New York City. 10 Delaware court must be signed by an active member of the Delaware Bar who has an in-state address where papers can be served, i.e. not a post office box. DEL Sup. Cr. R. 12(a)(i). Requiring a lawyer to be present at an office in New Jersey also fails to enhance the lawyer's accessibility to her clients, particularly if her clients are also out-of-state. A lawyer with a license to practice law in New Jersey who has an office in Brooklyn, New York is obviously more accessible to her Brooklyn clients, who would find her most inaccessible if her office were located someplace in New Jersey. Similarly, requiring a lawyer who is in-house counsel for a corporation whose law office is located within the headquarters of the corporation in Manhattan to also maintain an office in New Jersey in order to represent that corporation in a proceeding in New Jersey does nothing to make that lawyer more accessible to her corporate client and is patently absurd. This rule should also not be considered in a vacuum. The most recent version of this rule was promulgated in 1996, when fax machines, telephones, high-speed railroads and highways, conference alls, speakerphones, e-mail and cellular telephones had already been pervasive for many years. Even if the idea of requiring an office might have served to assure attorney accessibility in a bygone and slower era, the rule has become so unnecessary in today’s world that it cannot be said to bear even a rational relationship to the ends of assuring attorney accessibility. 11 The plaintiff submits that the real motivation behind the bona fide office requirement is plain and simple economic protectionism: New Jersey’s Bar establishment enacted these rules to protect local New Jersey lawyers and to promote full employment among local members of the New Jersey Bar of New Jersey. The New Jersey Bar is obviously concerned that the large firms in Manhattan and Philadelphia will simply hire lawyers who took the New Jersey bar exam and who are licensed to practice in New Jersey, rather than hire local New Jersey lawyers to serve as counsel of record. Even the Third Circuit recognized that “it may be true, as Tolchin argues, that the bona fide office requirement may include an element of economic protectionism,” Tolchin, 111 F.3d at 1116 (39a). At the very least this question raises a question of fact that should have been left for the jury and should not have been decided by the court below on a summary judgment motion. The Man nce R Besides imposing an oppressive in-state office requirement on duly licensed lawyers wishing to practice law in New Jersey, the defendants also impose a requirement that lawyers newly admitted to the New Jersey bar complete a two year series of continuing legal education classes called “Skills and Methods” that must be attended at locations within the state of New Jersey. NJ. Ct. R. 1:26 (1997). Failure to complete these courses 12 Uwe Wer SMMRES nee en eer Te Coker URAC i rise et Nie Sone oF Sn enii dha Rates Sei AALa: AID aN NMI a AB hat MR IO BANA oA NER ln 8 makes a lawyer ineligible to practice in New Jersey until the courses are completed. Id. Skills and Methods classes are only offered within the State of New Jersey, frequently at remote points within the state. Only a handful of the lectures are presented with a live lecturer, and those few live lectures are straight lectures with no opportunity for questioning the lecturer. The vast majority of the classes are presented on video tape, and most participants complete the entire series of classes without ever seeing a live lecturer. The only evaluation of a student’s performance in the courses is done on the basis of mail-in homework assignments that can clearly be done just as easily within or without the borders of the State of New Jersey. There is a strict requirement that all participants in the Skills and Methods program attend the lectures. This requirement is called the mandatory attendance rule. The defendants proffered absolutely no evidence showing that any state interest is served by requiring newly admitted lawyers to make weekly trips from wherever they live to a classroom in New Jersey to watch videotaped lectures. The same result could be achieved by simply selling or renting the videotapes to out-of-state lawyers who can then watch them at home, complete the homework and get the same educational benefit. While the defendants argue that the mandatory attendance rule does not impose a great burden on out-of- state members of the New Jersey Bar, one need only consider the plight of a young lawyer who passed the 13 New Jersey bar exam immediately after law school, has become admitted to the New Jersey bar and who intends to practice law in New Jersey after cempleting a two year clerkship in the United States District Court for the Eastern District of Louisiana or the Northern District of New York. Because such a young lawyer cannot, practically speaking, attend the lectures which are offered only in New Jersey, he is destined to become ineligible to practice law in New Jersey and will foreclosed from practicing there. The same would apply to a lawyer with many years experience from another state who wished to move to New Jersey. The result of the mandatory attendance requirement is that the New Jersey market for legal services is reserved for local New Jersey lawyers. This is exactly what the Commerce Clause was intended to prevent. See City of Philadelphia v. New Jersey, 437 U.S. 617, 614 (1978) (“[R]egulations that operate as economic protectionism and serve to protect in-state economic interests at the expense of out-of-state competitors are per se invalid.”) The rule that imposes the Skills and Methods requirement also directs the defendant New Jersey State Board of Law Examiners to promulgate rules governing this course, including a curriculum. The defendants admit that no such rules were ever promulgated. The course is administered by the defendant Institute for Continuing Legal Education (“ICLE”) according to an ad _ hoc 14 ee . SOE LE A CRITE 0 Le otis OEE Ee BN AR RS LL A MLAB BREE LEE. Ke, FH patie, HE ND arrangement with the defendant New Jersey Supreme Court. Obviously, if there were a defined curriculum for the course and a written list of requirements, it would be a simple matter for law schools and bar associations around the country to offer courses satisfying the Skills and Methods requirement. Indeed, the record contains the affidavit of a past president of the New York State Trial Lawyers Association who states that if there were such a curriculum available, his organization would offer a New Jersey Skills and Methods course in New York. However, because there is no defined curriculum or rules governing the course, the only organization in the world which offers this course is the defendant ICLE. REASONS FOR GRANTING THE WRIT This case raises for this Courts review the constitutionality of two rules adopted by a state court in its regulatory capacity that substantially hinder the ability of lawyers to engage in interstate commerce in the practice of law. This Court has never reviewed these rules nor any similar rules. In deciding to uphold these burdensome and restrictive New Jersey regulations, the Third Circuit decided an important question of federal law that has not been, but should be, settled by this Court. 15 Twelve years ago, this Court adjudged as unconstitutional a New Hampshire regulation prohibiting duly licensed lawyers from practicing law. in New Hampshire if they did not reside in New Hampshire. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). In his opinion concurring in result, Justice White wrote “I would postpone to another day such questions as whether the State may constitutionally condition membership in the New Hampshire Bar upon maintaining an office for the practice of law in the State of New Hampshire.” Id., 470 U.S. at 289 (White, J.) (concurring in result). The petitioner respectfully submits that the future day referred to by Justice White for determining the validity of in-state office requirements has now come. The arrival of this day has been heralded by the defendants’ having increased the stringency of their enforcement of the bona fide office rule and their having actually re- written the bona fide office rule to make it even more difficult for New Jersey licensed lawyers practicing in another state to comply with since the commencement of this action. There are thousands of lawyers licensed to practice law in New Jersey but whose primary offices are located outside New Jersey and who are therefore impacted by this rule and the defendants’ increased enforcement of this rule. This rule is now quite ripe for review by this Court. It should be noted that the Piper case did not involve a in-state office rule. The rule being challenged in 16 Piper was purely a residency requirement. Nevertheless, Justice White’s comment was prescient since he obviously foresaw that once residency requirements for practicing law were held to be unconstitutional, states might adopt in-state office requirements as a fallback line of protectionism. This is exactly what New Jersey did after the New Jersey Supreme Court declared “unreasonable” New Jersey's previous requirement that non-resident attorneys maintain a “principal office” within New Jersey. In re Sackman, 90 NJ. 521, 448 A.D.2d 1014 (1982). Since in-state office requirements were not raised in the Piper case, the Court quite properly did not consider them. This is the only case that the petitioner is aware of dealing with an in-state office requirement. Similarly, New Jersey's requirement that newly admitted lawyers complete a two year sequence of classes that can only be taken in New Jersey—where they are almost always presented on videotape in a classroom— imposes a constitutionally unacceptable burden on newly admitted lawyers who do not reside in or very close to New Jersey. This issue has never been reviewed by this Court. This issue is also particularly ripe for review because the Third Circuit based its decision upholding the mandatory attendance requirement on what the Third Circuit acknowledged was dicta repeated in three decisions of this Court which articulated approval of a requirement of mandatory attendance at legal education seminars. 17 Tolchin, 111 F.3d at 1109-10, n.4 and n5 (22a, 24a). However, nothing in any of those three cases, Supreme Court of Virginia v. Friedman, 487 U.S. 59, 69 (1988); Frazier v. Heebe, 482 U.S. 641, 648, (1987); Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 285 n.19 (1985), indicates this Court’s approval of a requirement that newly admitted out-of-state lawyers attend a two year sequence of lectures offered only at locations within New Jersey. These other decisions contemplated the approval only of a continuing legal education requirement—which is indisputably a laudable objective—and perhaps at most an occasional requirement of attendance at an in-state seminar. The reliance placed on these decisions by the Third Circuit is a perversion of what this Court appears to have intended in writing the dicta contained in Friedman, Frazier and Piper. Such a mis-application of this Court's holdings beckons now for review. The two New Jersey requirements that the Third Circuit's decision upheld are both offensive to the freedom of commerce for goods and services between the states envisioned by the framers of the Commerce Clause. As Alexander Hamilton wrote in The Federalist, No. XXII: The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse 18 between the different parts of the Confederacy. «The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.» Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. THE FEDERALIST No. 22 (Alexander Hamilton) (footnote omitted). The Third Circuit recognized in its decision that well-established precedent holds that a state regulation imposing a burden on interstate commerce which is excessive in comparison to the local benefits achieved violates the Commerce Clause: Tolchin, 111 F.3d at 1107 (14a). See Pike v. Bruce Church, 397 U.S. 137 (1970). The Third Circuit also recognized that: when a state statute “directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests,” it may generally be struck down without further inquiry. [Brown-Forman Distillers Corp. v. New York Liquor Authority,] 476 U.S. [573] at 578-79 [(1986)]; see also Institutional Sys., Inc. v. 19 Computer Curriculum Corp., 35 F.3d 813, 824 (3d Cir. 1994). On the other hand, when a statute only indirectly affects interstate commerce and regulates evenhandedly, a determination must be made as to whether the State’s interest is “legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.” Brown-Forman, 476 U.S. at 579 (citing Pike, 397 U.S. at 142). In both cases, however, “the critical consideration is the overall effect of the statute on both local and interstate activity.” Id. Tolchin, 111 F.3d at 1106 (14a). There is little doubt that if heightened scrutiny were applied to the regulations at issue, the regulations, particularly the bona fide office rule, would have to be stricken since they clearly place a burden on interstate trade. However, even applying the more lenient standard of review applied by the Third Circuit—whether the regulations bear a rational relationship to a legitimate local purpose, see Pike, 397 U.S. at 142—these regulations should have been stricken. Indeed, the Third Circuit’s decision that the bona fide office rule was rationally related to the local objective of assuring attorney accessibility to local courts, clients, parties and lawyers, see Tolchin, 111 F.3d at 1109 (21a), directly contradicts the holding of this Court in Frazier v. Heebe, 482 U.S. 641. In that case, this Court was presented with a challenge to a local rule of the United States District Court for the Eastern District of Louisiana 20 which required attorneys who did not reside in the District to maintain an office within the geographic borders of the District in order to be a member of the bar of that court. The defendants in Frazier attempted to justify their in-state office requirement on grounds that were substantially similar to the four grounds relied upon by the defendants and the Third Circuit in our case. Nevertheless, this Court reyected the Frazier in-state office requirement, and found in language directly applicable to the case at bar: - requir is|_unnecessar and _ irrational. First, the requirement is not imposed on in-state attorneys. A_ resident lawyer is allowed to maintain his or her only office outside of Louisiana. A resident lawyer with an out-of-state office is equally as unavailable to the court as a nonresident lawyer with an out-of-state office. In addition, the mere fact that an attorney has an office in Louisiana Ww a i hat State member _of the state bar. Requiring iti av isi I and n in-state answerin T w hi a aed oo eee aks As he failure to require in-state attorneys to have an in-state office reveals, the location of a lawyer’s office l wi his_ r her cases in Federal District Court. We further conclude that any need the court may have to ensure the availability of attorneys 21 As observed with regard to state residency requirements, there is no link between residency within a state and proximity to a courthouse. The office requirement does not Id., 482 U.S. at 649-650, 107 S.Ct. 2607 (1987) (underline added, italics in original). While the New Jersey requirements, unlike the Louisiana requirements dealt with in Frazier, do not exempt New Jersey residents from the _ office requirement,’ this Court’s perceptive analysis in Frazier * While the New Jersey requirements do not today exclude non-residents of New Jersey from practice, the regulatory history of the rule being challenged here reveals that in fact non-domiciliaries of New Jersey were excluded from the practice of law there until 1969, when the rule was changed to a requirement of either domicile in New Jersey or the maintenance of one’s principal office in New Jersey, a requirement slightly more onerous than the one found to be irrational in Frazier. It was not until 1978 that the rule was changed to its present form, except that the portion defining what a “bona fide office” is was not added until 1981. See Matter of Kasson, 141 NJ. 83 660 A.2d 1187 (1995) Thus, the history of the regulation now at issue demonstrates that the current rule was spawned from a lineage of outrightly protectionist measures that facially discriminated based on state residence, in violation of the Privileges and Immunities Clause. As explained by the New Jersey Supreme Court, “The additional [bona fide office] requirement was seen as a means of controlling the occasional practice of law by domiciliaries who (continued next page) 22 of the lack of any rational reason to require a lawyer to maintain an office within in a jurisdiction as a precondition to membership in that jurisdiction’s bar is completely applicable to this case. As was observed in Frazier, the mere fact that a lawyer such as the plaintiff might rent an office in New Jersey, install a telephone, hire a secretary and even seat himself at a desk in that office on a scheduled basis does not bestow on that lawyer any advantage. All it does is create a built-in inconvenience for any lawyer who wants to practice in New Jersey, and makes many lawyers think twice about becoming admitted to practice in New Jersey. Likewise, the mandatory attendance requirement simply throws up an obstacle inhibiting and discouraging lawyers with offices outside of New Jersey from becoming admitted to the New Jersey Bar and/or practicing law in New Jersey. The record in this case contains no showing whatsoever that there is any benefit obtained from requiring out-of-state lawyers to journey into New Jersey for the purpose of watching a videotape in a classroom located in New Jersey. Indeed, what the record does contain is the unrefuted affidavit of Frank Macchiarola, Ph.D., an expert in legal education, [mow former] law school dean, former law professor and former Chancellor of the New York City Board of Education, who stated primarily practiced in other jurisdictions or who practiced law only sporadically in New Jersey”, Kasson, 141 NJ. at 90, 448 A.2d at 1017 (citing Pressler, Current N.J. Court Rules, Comment 1:21-1 (1982)). Clearly, this is as protectionist a motive as any other tariff designed to control the market and serves no other legitimate function. categorically that there were no educational benefits to be obtained from watching a videotape in a classroom in New Jersey as compared to being permitted to watch the same videotapes at a classroom outside New Jersey or in one’s own home or office. The decision of the Third Circuit should be reviewed by this Court since it reached conclusions regarding state regulation of the interstate practice of law that have never been addressed by this Court. These regulations implicate the dormant aspect of the Commerce Clause and thus raise important questions of federal law. This matter is appropriate for review by this Court also because of the great many people who are impacted by the regulations being challenged here. There are tens of thousands of lawyers in the New York and Philadelphia metropolitan areas, and thousands of law firms. Many of these lawyers and law firms are forced to maintain New Jersey offices that they would not otherwise maintain if it were not for the burden imposed by this rule. Many more lawyers and law firms are forced by these regulations to forego undertaking representation of clients when the matters would require practicing law in New Jersey. On the other side of the issue, thousands of New Jersey local lawyers are making monopolists’ profits by taking advantage of the infringement of free commerce between the states that is engendered by these regulations. Finally, it should be noted that this matter is particularly worthy of review by this Court since the 24 regulations at issue here, unlike the run-of-the-mill social or economic legislation with respect to which states enjoy wide latitude, will not likely “eventually be rectified by the democratic process,” City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). These protectionist rules were made by non-legislative fiat of the Supreme Court of New Jersey, which is comprised entirely of local New Jersey lawyers, and were cleverly crafted to place no significant burdens upon the members of the local New Jersey bar while at the same time burdening lawyers from other states who may wish to practice in New Jersey. Ordinary lawyers, out-of-state or in-state, have little to no voice at all in making these rules, and it is extremely unlikely that out-of-state lawyers would be able to convince the New Jersey Supreme Court to even consider repealing these rules, which have the locally popular protectionist effect of excluding non-New Jersey lawyers from practicing in New Jersey and of preserving New Jersey as a fiefdom where local lawyers do not have to compete with out-of-state lawyers who are members of the New Jersey bar, although such lawyers—particularly New York and Philadelphia lawyers—may be perfectly able to handle cases in New Jersey. Since any undue burdens created by these rules are unlikely to be ever rectified by legislative means,” this Court should review this case. 25 CONCLUSION For the reasons set forth herein, petitioners respectfully request that this Court grant a writ of certiorari to the United States Circuit Court for the Third Circuit. Dated: New York, New York July 30, 1997 Respectfully submitted, JAROSLAWICZ & JAROS, ESQS es Counsel of Record 150 William Street, 19th floor New York, New York 10038 (212) 227-2780 and mer as. RT Penge ESQ. Lope —=— v Robes Tolfin iy Plaintiff pro se 150 William Street, 19th floor New York, New York 10038 (212) 227-2181 26 stn mat A a Ha APPENDIX +o | } : ‘ Decision of the United States Court of Appeals for the Third Circuit No. 95-5883 ROBERT J. TOLCHIN, individually and on behalf of all others similarly situated Appellant, ae THE SUPREME COURT OF THE STATE OF NEW JERSEY; ROBERT WILENTZ (intended to be the Chief Judge of the Supreme Court of New Jersey); STEPHEN W. TOWNSEND (intended to be the clerk of the Supreme Court); THE NEW JERSEY STATE BOARD OF BAR EXAMINERS; SAMUEL J. UBERMAN (intended to be the Assistant Secretary of the New Jersey Supreme Court who plaintiff believes to direct the State Board of Bar Examiners); THE NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION; JOSEPH J. HOGYA (intended to be the Institute for Continuing Legal Education Skills Training Course Director) la i; Aa ii APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 94-cv-04860) ARGUED SEPTEMBER 10, 1996 BEFORE: SLOVITER, Chief Judge, COWEN and LEWIS, Circuit Judges. (Filed May 2, 1997) OPINION OF THE COURT LEWIS, Circuit Judge. To practice law in New Jersey, an otherwise qualified attorney must maintain an office and attend continuing legal education courses there. The question before us is whether such requirements are lawful. We conclude that they are, and thus will affirm the district courts grant of summary judgment in favor of the Appellees. 1. Rule 1:21-1(a) of the Rules Governing the Courts of the State of New Jersey (the “Rule”) indicates who may practice and appear in New Jersey courts. The New Jersey Supreme Court amended this Rule, effective September 1, 1996, while this appeal was pending. The Rule now states that no person shall practice law in this State unless that person is an attorney, holding a plenary license to practice in this State, has complied with the R1:26 skills and methods course requirement in effect on the date of the attorney's admission, is in good standing, and maintains a bona fide office for the practice of law in this State regardless of where the attorney is domiciled. NJ.Ct.R. 1:21-1(a) (1996) (emphasis added). A. The Bona Fide Office Requirement The Rule defines “bona fide office” as “more than a maildrop, a summer home that is unattended during a substantial portion of the year, an answering service unrelated to a place where business is conducted, or a place where an on-site agent of the attorney receives and transmits messages only.” Id. - The Rule also outlines some indicia of a bona fide office. It is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be 3a obtained within a reasonable period of time. Id. The bona fide office requirement is the successor to New Jersey's more stringent residency requirement for members of the New Jersey bar. Indeed, as we discuss below, over the years New Jersey has sought to diminish the disparity in treatment between resident and nonresident attorneys. Moreover, the history of New Jersey’s residency and bona fide office requirements demonstrates the interests at stake in this case. As we will explain, each revision has sought to strike a different balance of the public interest, the interests of the New Jersey bar and the interests of potential members of the bar. Because those interests are at the core of the dispute in this case, we will briefly trace the relevant history and meaning of the various revisions to the Rule. At the outset we note that until 1969, New Jersey required that attorneys be residents of New Jersey in order to practice there. In re Sackman, 448 A.2d 1014, 1017 (1982); see Pressler, Current New Jersey Court Rules, Comment R. 1:21-1 (1969). The rationale for this requirement was that “residence in New Jersey implies a community commitment in terms of both interest and activity which better serves local clients and their interests.” Editorial, Proposed Revision of the Rules of the Court, 90 NJ.LJ. 164 (1967) (“1967 Editorial”). Supporters of the residency requirement maintained that it ensured that the general public had access to qualified and committed counsel. Id. But while the residency requirement was in effect until 1969, the New Jersey Supreme Court had been considering revising it since 1960. In 1960, the New Jersey Supreme Court appointed the Coordinating Committee on the Revision of the Rules of Court to review the state’s rules of court, including the residency requirement. Sackman, 448 A.2d at 1017. In 1966, The Committee recommended that the residence requirement be modified so that a nonresident attorney could practice law in New Jersey as long as he or she was “in regular attendance at an office in this state maintained for the practice of law.” 1967 Editorial; see Sackman, 448 A.2d at 1017. This proposed revision was intended to benefit attorneys who chose to live in New York or Pennsylvania and to practice in New Jersey. 1967 Editorial. These attorneys argued that the residency requirement placed an unreasonable restriction on their choice of residence because they were equally — if not more — qualified to practice in New Jersey than resident attorneys who primarily practiced in another state. Id. The proposed revision was tailored to prevent the occasional practice of law by those who practiced primarily in another state. Sackman, 448 A.2d at 1017. The 1966 ‘recommendation was criticized for several reasons. First, it was unclear what “regular attendance” meant. 1967 Editorial. Critics suggested that the proposed revision would allow attorneys who predominantly practiced in New York or Philadelphia to meet the requirement by attending a New Jersey office on 5a a regular but infrequent basis. Id. Furthermore, some members of the New Jersey bar feared that this revision would make it more difficult for people to secure qualified and committed counsel. Id. They believed that New Jersey residents would be better served by local counsel who would be “presumably, better equipped, in terms of currency and facility with New Jersey law and practice.” Id. Finally, the proposal was criticized because of its “adverse impact on the economic interests of the New Jersey bar... .” Id. The proposal was not implemented. In 1969, the Coordinating Committee proposed another revision which allowed any attorney to practice in New Jersey who was either domiciled there or maintained his or her principal office there. Sackman, 448 A.2d at 1017. While allowing for a more expansive choice of residence for members of the New Jersey bar, this recommendation implicitly rejected the possibility of attorneys engaging in multi-state practice. Id. The New Jersey Supreme Court implemented this recommend- ation. Id. However, the 1969 Rule failed to limit multi-state practice completely. Some attorneys practiced in New Jersey by virtue of their residency in the state, but did not maintain a bona fide office there either because their office was in another state or because their New Jersey practice - was irregular. Pressler, Current New Jersey Court Rules, Comment R. 1:21-1 (1982). _ - —- ~~ -Thus effective-September—1078,- the -Rule-was-—- amended again to require that a resident attorney maintain — -—— a bona fide office in New Jersey and that a nonresident attorney maintain his or her principal office there. Id. This version of the Rule was more restrictive of nonresidents than of residents because only the former had to maintain their principal offices in New Jersey. As a result of this requirement, a nonresident attorney's New Jersey practice could not be subordinate to a practice in another state. Id. “Bona fide office” was not defined in the 1978 Rule, leading to another amendment in September, 1981. This amendment defined a bona fide office as a place where the attorney or a responsible person acting on his behalf can be reached in person and by telephone during normal business hours. A bona fide office is more than a maildrop, a summer home that is unattended during a substantial portion of the year, or an answering service unrelated to a place where business is conducted. Sackman, 448 A.2d at 1018; N.J.Ct.R. 1:21-1(a) (1983). In 1982, the New Jersey Supreme Court, as part of its decision in Sackman, amended the Rule again in order to excise the facial discrimination against nonresidents. Under the revised Rule, both residents and nonresidents had to maintain bona fide offices in New Jersey in order to practice there. Sackman, 448 A.2d at 1019. Before the Sackman revision, the Rule presumed that without a principal office in New Jersey, an attorney would lose contact with New Jersey law and procedure, ~ and would therefore be unable to serve clients competently. Id. But the Court observed that to the extent 7a —_—<—__ + rr this premise might be true, it is only marginally true. Id. at 1021. The Court 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” because more qualified attorneys would be available to the New Jersey public. Id. at 1019. From 1982 to 1996, the only official changes made to the Rule were not substantive. However, in 1994, following a formal hearing concerning a bar member who had attempted to satisfy the bona fide office requirement by renting, but not actually using, office space in New Jersey, the Committee on Attorney Advertising, appointed by the New Jersey Supreme Court, issued Opinion 19 to clearly define “bona fide office.” 138 NJ.LJ. 320. The Committee recommended that the attorney be disciplined and stated that a bona fide office had to be “a place where clients are met, files are kept, the telephone is answered, mail is received and a responsible person acting on the attorney’s behalf can be reached during normal business hours.” Id. In 1996, the New Jersey Supreme Court adopted the substance of Opinion 19 in its revision of the Rule. N.J.Ct.R. 1:21-1 (1996). Thus, there is no question that over the last few decades, New Jersey has sought to reduce facial discrimination against nonresident attorneys. There is also no -question—that- the bena fide -office requirement imposes at least some restriction on all attorneys who 8a TT wish to practice in New Jersey. One of the issues in this appeal is the extent to which these restrictions impose a burden that unconstitutionally discriminates against nonresident attorneys. The Continuing Legal Education Mandatory Attendance Requirement In addition to the bona fide office requirement. successful completion of the skills and methods course on New Jersey practice is required for all attorneys recently admitted to the New Jersey bar. N.J.Ct.R. 1:26. The course is intended to prepare attorneys for the transition to legal practice in New Jersey from law school or from legal practice in another state. The New Jersey Supreme Court approved the New Jersey Institute for Continuing Legal Education (“ICLE”) to administer this course. In January 1987, the New Jersey Supreme Court directed ICLE to enforce a mandatory attendance policy for all registrants of the skills and methods course (the “mandatory attendance requirement”). ICLE implemented this directive after an extensive evaluation that included public notice of the proposal. ICLE currently offers the skills and methods course in four cycles throughout the year in three different scheduling formats. Newly admitted attorneys are free to choose the most convenient course cycle and format. The first year requirement for the course requires an attorney to attend 40 hours of lectures. 9a Attendance is mandatory in all cycles and formats. Rule 1:26 provides that “failure to complete the course successfully shall render an attorney ineligible to practice ” law. Il. Appellant Robert Tolchin is a resident of New York State. He graduated from Cardozo Law School in 1992, sat for and passed the New Jersey Bar Exam in July, 1992, and was sworn in to the New Jersey bar in December, 1992. Tolchin contacted ICLE and asked whether he could satisfy the skills and methods course requirement through equivalent courses offered in New York or through home study materials. ICLE informed him that he must physically attend the courses in New Jersey. Tolchin has not attended the courses, nor does he maintain an office in New Jersey. As a consequence, Tolchin has not satisfied the conditions necessary to practice law in New Jersey, even though he has been sworn in to the New Jersey bar. Tolchin filed suit on October 12, 1994, pursuant to 42 U.S.C. 88 1983 and 1985. The suit raises a myriad of constitutional challenges to the bona fide office and the mandatory attendance requirements. Specifically, Tolchin argues that the bona fide office and the mandatory attendance requirements violate the Commerce Clause, the Privileges and Immunities Clause of Article IV, section 2, and the Equal Protection Clause of the Fourteenth 10a Amendment to the Constitution. He also argues that the implementation and teaching of the skills and methods course violate the Due Process Clause of the Fourteenth Amendment to the Constitution.’ Tolchin named as defendants (1) the Supreme Court of New Jersey; (2) Chief Justice Robert N. Wilentz;* (3) the Clerk of the Supreme Court of New Jersey, Stephen W. Townsend; (4) the New Jersey Board of Bar Examiners; (5) the Board’s Secretary, Samuel J. Uberman; (6) ICLE; and (7) Skills and Methods Course Director Joseph J. Hogya (collectively the “Appellees”). The Appellees filed a motion for summary judgment. The district court referred the case to a magistrate judge. The magistrate judge filed a Report and Recommendation which recommended that summary judgment be granted. The district court adopted the report and recommendation and entered summary judgment in favor of the Appellees. Tolchin then filed this appeal. The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. As this is an appeal from the district court’s Order granting summary judgment to Appellees, we conduct a de novo review. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d Tolchin also argues that ICLE’s application for summary judgment under the Eleventh Amendment should be denied; the individual defendants are proper parties; and summary judgment should be granted in his favor. Because of our disposition of the merits, we need not consider these issues. ? Chief Justice Wilentz resigned on July 1, 1996. He has been succeeded as Chief Justice by Deborah T. Poritz. lla 231, 236 (3d Cir. 1995). We must apply the same test used by the district court; namely, whether there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir. 1986). In determining whether to grant a motion for summary judgment, we must draw all reasonable inferences in favor of Tolchin, as the non- moving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). Ill. A. Tolchin’s Commerce Clause Challenge Tolchin argues that the district court erroneously dismissed his Commerce Clause challenge to the bona fide office and the mandatory attendance requirements. He states that “the defendants have implemented regulations that unconstitutionally impair interstate commerce without sufficient justification and have thus violated the ‘dormant’ facet of the Commerce Clause.” Tolchin Br. at 16. 12a — ee ee eee ee — — —_— — The United States Constitution provides that “Congress shall have Power . . . to regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8. While the Commerce Clause explicitly speaks only to the power of Congress to regulate interstate commerce, it has been interpreted to contain “an implied limitation on the power of the States to interfere with or impose burdens on interstate commerce.” Western & Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 652 (1981). This implied limitation is sometimes referred to as the ‘negative’ or ‘dormant’ Commerce Clause, and it is this aspect of Commerce Clause jurisprudence that is at issue in this case. . The dormant aspect of the Commerce Clause “prohibits economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273 (1988). State legislative enactments, executive regulations and judiciary- approved rules can all be subject to Commerce Clause analysis. See e.g., New Energy, 486 U.S. 269 (statute); Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (executive order); Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) (judiciary-approved rule). When conducting a dormant Commerce Clause analysis, we seek to balance the national interest in vibrant interstate commerce with the local interests a _——~_— = 13a promoted by the state regulation. In Pike, the Supreme Court stated that Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . . If a legitimate local purpose is found, then the question becomes one of degree. 397 US. at 142 (citation omitted) (emphasis added). In Brown-Forman Distillers Corp. v. New York Liquor Authority, 476 U.S. 573 (1986), the Supreme Court later refined its Commerce Clause analysis by holding that when a state statute “directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests,” it may generally be struck down without further inquiry. 476 U.S. at 578-79; see also Institutional Sys., Inc. v. Computer Curriculum Corp., 35 F.3d 813, 824 (3d Cir. 1994). On the other hand, when a statute only indirectly affects interstate commerce and regulates evenhandedly, a determination must be made as to whether the State’s interest is “legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.” Brown-Forman, 476 U.S. at 579 (citing Pike, 397 U.S. at 142). In both cases, however, “the critical consideration is the overall effect of the statute on both local and interstate activity.” Id. In this case, the district court, adopting in full the l4a —_ | —— _ Magistrate’s Report and Recommendation, applied the second — the “balancing rule” — standard, which it formulated as follows: if legislation is facially neutral, and only has an incidental effect on commerce, the legislation will be upheld unless the burden on commerce is “clearly excessive in relation to the putative local benefits.” Report and Recommendation of Magistrate Judge at 21 (“Magistrate Report”) (emphasis added) (quoting Pike, 397 U.S. at 142) (adopted by district court in Tolchin v. Supreme Court of the State of New Jersey, No. 94-4860 (D.N.J. Dec. 14, 1995)). Although we agree with the district court’s selection of the balancing rule test and its result, we disagree with its articulation of the test. For the balancing rule test to apply, a state’s action must not be merely ‘facially neutral,’ but must also be neutral in effect. Brown- Forman makes clear that heightened scrutiny applies not only when legislation is facially discriminatory, but also when a state statute or regulation’s “effect is to favor in- State economic interests over out-of-state interests. . 476 USS. at 579. Tolchin argues that the bona fide office and mandatory attendance ‘requirements favor in-state economic interests and amount to “economic 15a protectionism” that must be subject to the Commerce Clause’s heightened scrutiny standard of review. Just as a law forbidding sleeping under a bridge falls more heavily on the shoulders of the indigent than on those of the wealthy, Tolchin argues, these requirements fall more heavily on the shoulders of nonresidents than on those of residents. This analogy sheds little light on the issue before us. Most laws and regulations affect different people differently, depending on their circumstances. The relevant question here is whether there is any differential treatment of nonresident attorneys that “favors in-state interests over out-of-state interests” and “the critical consideration is the overall effect of the statute on both local and interstate activity.” Brown-Forman, 476 U.S. at 579. All parties agree that, on its face, New Jersey’s bona fide office requirement does not discriminate against out-of-state attorneys. See NJ.Ct.R. 1:21-l(a). However, Tolchin maintains that the bona fide office requirement effectively favors resident attorneys. We disagree. All attorneys who wish to practice in New Jersey must have a bona fide office. As one commentator has observed, the requirement’s intent was to prevent occasional practice in New Jersey by an attorney once admitted, but who now practices primarily in another state. Pressler, Current New Jersey Court Rules, Comment R. 1:21-l1. Such an attorney could lose his or her familiarity with New Jersey law and its development. Id. Thus, it is reasonable to be l6a Ilia ccmenenseemnmniiaiiiaieaciaiadiaiaaaauaill assume that the only attorneys actually burdened by this requirement are those who wish to maintain a small or sporadic practice in New Jersey. Tolchin argues that although such attorneys are required to spend the money necessary to maintain a bona fide office, they will not receive the comparable benefits that most attorneys with larger New Jersey practices would enjoy. While Tolchin might be right, his argument fails to implicate the Commerce Clause because such attorneys may be New Jersey residents as well as nonresidents. Tolchin has also argued that it is less expensive for New Jersey residents to have a bona fide office because they can maintain one in their homes. Yet, a bona fide office is more than a mere address — it is a functioning office. Tolchin has not shown that more than a few attorneys practice from their homes, so that any advantage which inures to resident attorneys in this regard is minimal. All attorneys must incur some expense in order to comply with this requirement. Any incidental discrimination caused by the bona fide office requirement is not based on residency status, but on the size and type of an attorney’s practice. We reach the same conclusion with respect to New Jersey’s mandatory attendance requirement, which does not discriminate on its face nor in effect against out-of- State interests any more than the bona fide office requirement. It, too, applies equally on its face to residents and nonresidents and does not effectively favor resident attorneys. Rather, any burden it imposes is directly 17a proportional to the distance an attorney must travel to a skills and methods course site. Tolchin implicitly acknowledges that he is no more personally burdened by this requirement than many New Jersey attorneys, as he repeatedly notes how close New York is to New Jersey. While it is true that the mandatory attendance requirement may present difficulties for those residing hundreds or thousands of miles from New Jersey, we believe it is safe to assume that few attorneys live that far from where they intend to practice. See Frazier v. Heebe, 482 U.S. 641, 648-49 (1987) (“As a practical matter, a high percentage of nonresident attorneys willing to take the state bar examination and pay the annual dues will reside in places ‘reasonably convenient’ to the” court.); Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 286-87 (1985) (“One may assume that a high percentage of nonresident lawyers willing to take the state bar examination and pay the annual dues will reside in places reasonably convenient to New Hampshire.”). We do not believe that the mandatory attendance requirement was purposefully intended to discriminate against the putative class of attorneys who intend to practice a great distance from New Jersey. It is safe to assume that most of the attorneys affected by this regulation are residents of New Jersey, New York and Pennsylvania. We conclude that neither the bona fide office nor the mandatory attendance requirement -purposefully or arbitrarily discriminate against out-of-state interests. 18a Because the bona fide office and the mandatory attendance requirements do not directly regulate or— discriminate against interstate commerce, the heightened scrutiny test is not applicable. See Instructional Sys., Inc. v. Computer Curriculum Corp., 35 F.3d 813, 824 (3d Cir. 1994). Thus, this case is distinguishable from the Commerce Clause cases that have applied heightened scrutiny to waste flow control ordinances. The Supreme Court has found that flow control ordinances have the effect of depriving “competitors, including out-of-state firms, of access to a local market... .” C & A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677, 1679 (1994); see also Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 48 F.3d 701 (3d Cir. 1995). Because we have found no such deprivation, those cases do not mandate that we apply heightened scrutiny here. Accordingly, the district court was correct in applying the balancing rule test. Under this test, we must compare the local benefits of a regulation with the incidental burdens that it imposes on interstate commerce in order to determine whether the burdens are clearly excessive. Id. Appellee New Jersey Supreme Court argues that the bona fide office requirement has the benefits of assuring the competence, accountability and accessibility of attorneys for the benefit of clients, courts, counsel and parties. Tolchin responds that there is no rational relationship between these benefits and the bona fide office 19a requirement. While we agree with Tolchin’s analysis in part, we nonetheless find that a rational relationship exists between the benefit of attorney accessibility and the bona fide office requirement. In a case where in-state offices were required only of nonresidents, the United States Supreme Court held that there is no rational relationship between such a requirement and attorney competence. Frazier v. Heebe, 482 U.S. 641, 649 (1987) (“the mere fact that an attorney has an office in [a jurisdiction] surely does not warrant the assumption that he or she is more competent than an out-of-state member of the state bar.”); see also Barnard v. Thorstenn, 489 U.S. 546, 555 (1989) (“We can assume that a lawyer who anticipates sufficient practice in[a jurisdiction] to justify taking the bar examination and paying the annual dues . . . will inform himself of the laws of the [jurisdiction].”); Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 285 (1985) (Court will not assume that “a nonresident lawyer — any more than a resident — would disserve his clients by failing to familiarize himself with the [local law].”). We believe that this holds true for the facts presented in this case as well. The Appellees have put forth no credible arguments as to why the bona fide office requirement would make an attorney more competent. Nor do we find~that New Jersey’s bona fide office requirement increases attorney accountability. New Jersey requires that all nonresident attorneys designate the Clerk of the New Jersey Supreme Court as agent for 20a it eneeeteeemnemeemmiaieaimeiailiiitleiniiidaiiciiiiiiiaiiuaiaidill receipt of service of process. N.J.Ct.R. 1:21-1(a). The New Jersey Supreme Court can therefore discipline ll members of the New Jersey bar, regardless of residency. The Appellees make no compelling argument as to how New Jersey’s bona fide office requirement is rationally related to attorney accountability. However, we do believe that the bona fide office requirement has a rational relationship to the benefit of attorney accessibility for clients, courts, counsel and parties, and our belief is borne out by a New Jersey case which highlights the problems caused by attorneys who _ fail to maintain bona fide offices in New Jersey. In In The Matter of Kasson, 141 NJ. 83 660 A.2d 1187 (1995), the New Jersey Supreme Court upheld the disciplining of an attorney pursuant to Rule 1:21-1(a) because the trial court had serious difficulty locating him during the course of litigation. Kasson’s New Jersey office was never used, his name was misspelled on a sign and the office number on his letterhead“was not the same as the number on the sign, which was not the same as the number of the actual office. Id. See also Opinion’ 19, above, pp. 11-12 (disciplining a bar member for renting, but not using, office in New Jersey). In our view, this case demonstrates that there is satisfactory basis to find a rational relationship between the bona fide office requirement and the intended benefit of attorney accessibility.° * Chief Judge Sloviter agrees that the bona fide office requirement has a rational relationship to the benefit of attorney accessibility for clients, courts, counsel and parties. Inasmuch as the (continued next page) 2la Thus, while the bona fide office requirement does impose the burden of maintaining an office on some attorneys who would prefer not to maintain one, we believe that those most burdened do not constitute a very large class. This class may include those who practice solely, but sporadically, in New Jersey; those who occasionally practice in New Jersey as part of a larger practice based in another state; and those who prefer to practice without maintaining any office at all. The requirement’s burden affects interstate commerce in that it limits the mobility of some lawyers and reduces the options for consumers of the services they provide. However, under the balancing test, we find that the burden on interstate commerce does not clearly outweigh the benefit received from the bona fide office requirement. See Instructional Sys., 35 F.3d at 824. This is not to say that such a requirement is the most narrowly tailored solution to the problem of attorney accessibility. We merely hold that such a requirement is rationally related to the benefit it is supposed to ensure.” Likewise, we believe that the mandatory attendance challenged rule can be sustained on that basis, she does not join the portion of this opinion that rejects the New Jersey Supreme Court's argument that the bona fide office requirement helps assure the competence and accountability of attorneys. * We also note that the United States Supreme Court, in dicta, has approved just such a requirement. Supreme Court of Virginia v. Friedman, 487 U.S. 59, 69-70 (1988) (Virginia “requires that attorneys admitted on motion maintain an office for the practice of law in Virginia... . The office requirement furnishes an alternative to the residency requirement. . . .”). requirement for the skills and methods course is rationally related to the benefits it is intended to promote. The skills and methods classes are intended to train attorneys new to the New Jersey bar and to protect the public from untrained attorneys. Mandatory attendance at the course serves a defensible educational purpose: it ensures that attorneys hear — if noi listen to — those topics thought to be important by the Appellees. In support of his argument to the contrary, Tolchin submitted an affidavit from Dean Frank Macchiarola of the Cardozo Law School which, Tolchin argues, indicated that mandatory attendance served no valid educational function. However, the Macchiarola affidavit does not make such sweeping claims. It is limited to disputing some of the reasons proffered by Hogya for the mandatory attendance requirement; to asserting that mandatory attendance has no advantage over other approaches; and to extolling the advantages of customized learning. As a result, this affidavit fails to raise a genuine issue of material fact as to whether the mandatory attendance requirement is rationally connected to its intended benefits. Moreover, the burdens on interstate commerce imposed by the mandatory attendance requirement for the skills and methods course are relatively small, when compared to the benefits it promotes. The first year component of the course requires an attorney to invest a total of 40 hours. For that investment, New Jersey can be confident that attorneys new to its bar are at least minimally familiar with its laws. This requirement is even a small burden for those attorneys who want to practice in more than one state. Finally, the commuting burden for Tolchin, who is a bridge or two away from New Jersey, is actually less than it is for many New Jersey residents. See id. Because this requirement appears to be a substantial burden only for the relatively few nonresident attorneys who reside a great distance from New Jersey, we do not find that such a burden clearly outweighs the benefits promoted by this requirement. Nor has Tolchin demonstrated that this widely accepted educational policy is in some way so wrong that we must declare it irrational.’ Even if the New Jersey rules were to have an element of “economic protectionism,” we do not find that the requirements at issue in this case are so protectionist as to fail in the context of a dormant Commerce Clause analysis. Thus, we conclude that the district court > We note that the Supreme Court, in dicta, has approved of mandatory attendance requirements for continuing legal education. See Supreme Court of Virginia v. Friedman, 487 U.S. 59, 69 (1988) (court can “require mandatory attendance at periodic Continuing Legal Education courses.”); Frazier v. Heebe, 482 U.S. 641, 648, (1987) (“[O}ther more effective means of ensuring the competence of bar members are available ... including examination or seminar attendance requirements.”); Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 285 n.19 (1985) (“A less restrictive alternative would be to require mandatory attendance at periodic seminars on state practice. There already is a rule requiring all new admittees to complete a ‘practical skills course’ within one year of their admission.”). 24a properly relied upon the Pike balancing test, and concur with its result. New Jersey’s bona fide office and mandatory attendance requirements generally burden nonresident attorneys to the same degree that they burden resident attorneys. The fact that these requirements may burden commerce in some incidental way is not enough to support Tolchin’s claim. Moreover, states clearly have a substantial interest in assuring the availability of and overseeing attorneys practicing within their borders. See Leis v. Flynt, 439 U.S. 438, 444 n.5 (1978) (recognizing “the traditional authority of state courts to control who may be admitted to practice” before them); Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975) (recognizing state courts have “broad power to establish standards for licensing practitioners and regulating the practice of professionals”). And finally, where heightened scrutiny is not warranted, we must not “second-guess the empirical judgment of lawmakers concerning the utility of legislation.” CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 92 (1987) (quoting Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 679 (1981) (Brennan, J., concurring)). Tolchin argues that, at the very least, summary judgment should be denied so as to allow further investigation of the burdens of these requirements. We find that further investigation is unnecessary because, as the Fourth Circuit noted in a similar context, to require hearings in such cases would deal a serious blow to the capacities of 25a the states and localities to further even the most basic regulatory purposes. As_ the Commerce Clause is implicated by almost every economic regulation .. . and its shadow extends equally far. . . such hearings would be an almost constant process. Goldfarb v. Supreme Court of Virginia, 766 F.2d 859, 862 (4th Cir. 1985). We agree. Tolchin’s Privileges and Immunities Challenge Tolchin further claims that the bona fide office and mandatory attendance requirements violate the Privileges and Immunities Clause. The Privileges and Immunities Clause provides that “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2. This clause was intended to “fuse into one Nation a collection of independent, sovereign States.” Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 279 (1985) (quoting Toomer v. Witsell, 334 U.S. 385, 395 (1948)). Under this clause, the terms “citizen” and “resident” are used interchangeably. Piper, 470 U.S. at 279 n.6. The Privileges and Immunities Clause applies only “with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the Nation as a single entity.” Id. at 279 (quoting Baldwin v. Montana Fish & Game 26a a er ee Commission, 436 U.S. 371, 383 (1978)). The United States Supreme Court has found 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.” Piper, 470 U.S. at 280 (quoting Toomer v. Witsell, 334 U.S. 385, 396 (1948)). The Supreme Court has recognized the practice of law as a privilege under the Privileges and Immunities Clause, “and that a nonresident who passes a state bar examination and otherwise qualifies for practice has an interest protected by the Clause.” Barnard v. Thorstenn, 489 U.S. 546, 553 (1989); see also Supreme Court of Virginia v. Friedman, 487 U.S. 59, 65 (1988): Piper, 470 U.S. at 279-83. The practice of law is protected by the Privileges and Immunities Clause because it plays a vital role in the nation’s economy and facilitates the vindication of individual and societal rights. Piper, 470 U.S. at 280-81. If a state statute or regulation imposes identical requirements on residents and nonresidents alike and it has no discriminatory effect on nonresidents, it does not violate the Privileges and Immunities Clause. Lutz v. City of York, Pennsylvania, 899 F.2d 255, 263 (3d Cir. 1990). But when a challenged restriction deprives nonresidents of a privilege or immunity protected by this clause, it is invalid unless “(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a_ substantial relationship to the State’s objective.” Piper, 470 U.S. at 284. In addressing these questions, we consider, among other things, whether less restrictive means of regulation 27a are available. Barnard, 498 U.S. at 552-53. Of course, we must distinguish between incidental discrimination against nonresidents and discrimination that imposes too heavy a burden on their privileges. See id. at 557. Over the last ten years, the United States Supreme Court has considered whether a number of bar admission requirements violate the Privileges and Immunities Clause. In 1985, the Court struck down a New Hampshire residency requirement, which limited state bar admission to New Hampshire residents, as a violation of the Privileges and Immunities Clause. Piper, 470 U.S. at 288. The Court determined that the residency requirement deprived nonresidents of a protected privilege. Id. at 284. New Hampshire defended its rule, contending that nonresident bar members would be less likely to stay current with local rules and procedures, to behave ethically, to do pro bono work in the state and to be accessible to clients and the court. Id. at 285. The Court disagreed with each of these contentions, stating that a nonresident attorney’s interest in his or her reputation would provide the same incentive to maintain high standards as would that of a resident attorney. Id. at 286. The Court found that New Hampshire had not shown a “substantial reason” for discriminating against nonresident bar applicants and had not demonstrated that the discrimination bore a close relationship to its objectives. Id. at 287. The Court concluded that less restrictive alternatives — including mandatory attendance at seminars on state practice — would support the State’s interest in ensuring that admitted attorneys were familiar with local rules and procedure. Id. at 284-87. Similarly, in Friedman, the Supreme Court struck down a Virginia rule that permitted admission to the Virginia bar simply on motion for attorneys who had become permanent residents of Virginia and were licensed in another state. Friedman, 487 U.S. at 61. Nonresidents of Virginia admitted to practice in another state, however, were required to take the Virginia bar exam. The Supreme Court determined that Virginia’s discretionary admissions-. policy violated the Privileges and Immunities Clause by denying nonresident attorneys the Opportunity to practice law in Virginia on terms substantially equal to those of resident attorneys. Id. at 70. In so holding, the Court specifically noted that Virginia’s requirement that attorneys maintain in-state offices furnished a less restrictive alternative to protect its regulatory interests. Id. More recently, in Barnard v. Thorstenn, 489 U.S. 546 (1989), the Supreme Court struck down a residency requirement incorporated into a District Court of the Virgin Islands Rule. This rule provided that before an otherwise qualified attorney could be admitted, that attorney must establish that he or she resides and intends to continue residing in the Virgin Islands. Id. at 559. The Supreme Court held that this residency requirement violated the Privileges and Immunities Clause by excluding nonresidents from the Virgin Islands bar. Id. Moreover, the Court determined that the residency 29a requirement did not bear a substantial relation to the District Court of the Virgin Islands’ objectives, which included ensuring the availability of nonresident attorneys and maintaining an adequate level of competence in the local laws, which were infrequently published. Id. at 558- 59. The Court found that less restrictive means existed to address these concerns. Nonresidents could -associate with local counsel, relieving the State of any burden associated with accommodating nonresidents’ travel schedules. Id. at 555. The Court also found that if the Virgin Islands failed to publish legal materials in a timely manner, the problem of attorneys staying current with local law would be just as severe for residents as nonresidents. Id. at 556. Since 1985, then, the United States Supreme Court has struck down restrictions on state bar admission requirements, and has indicated that a state must treat residents and nonresidents equally when it considers an individual's admission to the bar. As a result of these decisions, all states have eliminated residency-based bar admission requirements.° A state’s interest in regulating the practice of law is similar to its interest in regulating admission to the bar, and the Supreme Court cases in this area offer us guidance in our analysis. ° See Brian N. Corrigan et al., Admission?, Yes; Practice? No: New York Inconsistent Treatment of Nonresident Attorneys, 6 St. John’s J. Legal Comment. 383, 390 (1991). Our Privileges and Immunities analysis has two steps. First, do the bona fide office and mandatory attendance requirements discriminate against nonresident attorneys? Second, if they do, is the imposition too heavy a burden on the privileges of nonresidents, and does it fail to bear a substantial relationship to New Jersey’s objective? See Barnard v. Thorstenn, 489 U.S. 546, 557 (1989). As noted in Section Ill. A., above, both requirements similarly affect residents and nonresidents. Resident and nonresident attorneys alike must maintain a New Jersey office. Moreover, as the district court noted, the bona fide office requirement provides New Jersey with a reasonable avenue through which it can protect its interest of ensuring that attorneys licensed in New Jersey are available to New Jersey courts, practitioners and clients. See Friedman, 487 U.S. at 69-70 (recognizing that an in-state office requirement was an appropriate and less restrictive means of enforcing Virginia’s full time practice restriction). Similarly, the mandatory attendance requirement applies equally to residents and nonresidents. Tolchin argues that the mandatory attendance policy is discriminatory because it unduly burdens nonresident attorneys who may not be able to find time to attend the skills and methods class. However, as we have already noted, a New Jersey resident may need to travel farther and longer than someone in New York City to get to a course site. In other words, the discrimination here is 3la based on the inconvenience of course sites and not on residence status. Nonresidents who wish to practice law in New Jersey are required to make the effort to attend continuing education courses. This is a rational requirement, given the need to educate attorneys new to the New Jersey bar and given traditional educational approaches.’ We conclude that the bona fide office and mandatory attendance requirement do not impose a disproportionately heavy burden on nonresidents. These requirements bear a substantial relationship to New Jersey's goal of regulating the practice of law to the benefit of the public and are not overly restrictive of attorneys. Thus, these requirements do not violate the Privileges and Immunities Clause. See Barnard v. Thorstenn, 489 U.S. at 557. Cc. ~ Tolchin’s Equal Protection Clause Challenge The Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The threshold question is what standard governs the equal protection analysis in this case. ” Moreover, as we noted above, the United States Supreme Court has indicated in dicta that such a requirement was consistent with the Privileges and Immunities Clause. Friedman, 487 U.S. at 69. (continued next page) 32a a Tolchin argues that the right to practice law in New Jersey is a fundamental right for equal protection purposes. Thus, Tolchin claims, the district court erred in granting summary judgment to the Appellees on his equal protection challenge because it did not apply the strict scrutiny standard of review to the bona f '> office and the mandatory attendance requirements. In the alternative he argues that these requirements would not even survive rational basis review. We have found that as a general matter, “economic and social legislation is subject to rational basis review, under which a law need only be ‘rationally related to a legitimate state interest.” Schumacher v. Nix, 965 F.2d 1262, 1266 (3d Cir. 1992) (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam)). However. where legislation establishes a classification that implicates fundamental rights or draws upon suspect distinctions such as race, religion or alienage, the legislation must meet strict scrutiny analysis. Schumacher, 965 F.2d at 1266. While we are not reviewing legislation in the traditional sense, judiciary-approved rules fall within the ambit of the Equal Protection Clause. Id. at 1266 n.6. The Supreme Court has indicated that the right to practice law is not a fundamental right for the purposes of the Fourteenth Amendment. See Leis v. Flynt, 439 U.S. 438, 442 n5 (1979) (“[T]he suggestion that the Piper, 470 U.S. at 285 n.19; see n.5 above. 33a Constitution assures the right of a lawyer to practice in the court of every State is a novel one, not supported by any authority brought to our attention.”); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39 (1957) (“[A] State can require high standards of qualification . . . 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.”). Moreover, we have flatly rejected the argument that the practice of law is a fundamental right protected by the Equal Protection Clause. Edelstein v. Wilentz, 812 F.2d 128, 132 (3d Cir. 1987); In the Matter of Roberts, 682 F.2d 105, 108 (3d Cir. 1982). Tolchin claims that Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985), supports his position. In Piper, the Court determined that the “the opportunity to practice law should be considered a ‘fundamental right” which “falls within the ambit of the Privileges and Immunities Clause.” Id. at 281. Tolchin attempts to bootstrap this use of the term “fundamental right” into equal protection jurisprudence. However, “fundamental” privileges and immunities are not interchangeable with the rights deemed “fundamental” for equal protection purposes. See Friedman v. Supreme Court of Virginia, 822 F.2d 423, 426 (4th Cir. 1987), affd, 487 U.S. 59 (1988) (recognizing that “the Privileges and Immunities Clause protects more [rights] than those rights which are considered fundamental individual rights protected by the Fourteenth Amendment”). 34a NL The bona fide office and mandatory attendance requirements apply to all attorneys who want to practice in New Jersey. They do not create a suspect classification based on race, religion or alienage. Accordingly, there is simply no basis upon which Tolchin can credibly argue that strict scrutiny is the appropriate standard of review. See Schumacher, 965 F.2d at 1266. We conclude that Tolchin’s claim that the bona fide office and mandatory attendance requirements deny him the right to practice law is subject to a rational basis review. Tolchin argues that even if heightened scrutiny is unwarranted, the bona fide office and the mandatory attendance requirements fail to survive rational basis review. He claims that these requirements are not rationally related to New Jersey's interest in regulating the practice of law. To demonstrate the alleged irrationality of the requirements, Tolchin Suggests a number of alternatives, less burdensome to him, that the New Jersey Supreme Court could implement to achieve its objectives. We need not consider these alternatives. For the purposes of rational basis review, we have held that a rule need not be the least restrictive means of achieving a permissible end. Id. So long as the New Jersey Supreme Court “could rationally have decided” that its action would further its goal, “the Equal Protection Clause is satisfied.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981); see also Parham v. Hughes, 441 U.S. 347, 351 (1979) (“Under a rational basis test, a law is entitled to a presumption of validity.”). 35a Both the bona fide office and mandatory attendance requirements are rationally related to New Jersey's interest in regulating the practice of law. We have already concluded that the bona fide office requirement is rationally related to New Jersey's interest in ensuring that attorneys admitted to practice law in New Jersey are available to New Jersey courts. See Section III. A., above. The fact that Tolchin and others similarly situated may be burdened by this requirement is not enough to deem the requirement invalid under the rational relation test. See Schumacher, 965 F.2d at 1266. The skills and methods course was developed to assist attorneys in their transition to practice in New Jersey from law school or practice in another state. The mandatory attendance requirement, by ensuring that attorneys be, at a minimum, present at the Continuing Legal Education classes, will tend to ensure that attorneys absorb the lessons of the course. While Tolchin may be correct in maintaining that he could just as easily learn the material from the comfort of his own home, rational basis review does not allow us to conclude that New Jersey was constitutionally required to accommodate him. See Clover Leaf Creamery Co., 449 U.S. at 466. In summary, the right to practice law is not a fundamental right for the purposes of the Equal Protection Clause. Thus, Tolchin’s claim fails because the bona fide office and mandatory attendance requirements are rationally related to New Jersey’s legitimate interests in regulating the practice of law within its borders. 36a ——————— ES RRC A REND ERE H = 2 & ; LOE ERLINDA Y MRR BARRA GEARED EONS NAAM ort 03) D. Tolchin’s Due Process Challenge Rule 1:26 provides that the skills and methods “course format shall be set forth in the rules of the Board of Bar Examiners.” N.J.Ct.R. 1:26. The Board has not promulgated any rules regarding the skills and methods course. Tolchin argues that the implementation of the skills and methods course violate [sic] the Due Process Clause of the Fourteenth Amendment to the Constitution because the New Jersey Board of Bar Examiners failed to adopt the rules governing the format and curriculum of the course through formal rulemaking procedures, thereby depriving him of his right to earn his livelihood by practicing in New Jersey. The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty or property without due process of law.”* U.S. Const. amend. XIV. To satisfy the requirements of the Due Process Clause, laws and regulations must provide specific standards which avoid arbitrary and discriminatory enforcement. Grayned v. Rockford, 408 U.S. 104, 109 (1972). An agency’s failure to follow its rules and regulations, however, is not a per se violation of due process. See United States v. Caceres, 440 U.S. 741 (1979). Rather, the Due Process Clause is * Because of the result that we reach in this case, we need not decide the related question of whether one who has passed a state bar exam, but who is for some reason ineligible to practice, has a property interest protected by the Due Process Clause. 37a implicated only when an agency violates regulations mandated by the Constitution or by law; or when “an individual has reasonably relied on an agency regulations [sic] promulgated for his guidance or benefit and has suffered substantially because of their violation by the agency.” Id. at 752-53. Due process may also be violated if the government acts arbitrarily or capriciously. Grayned, 408 U.S. at 109. Rule 1:26 is not mandated by the Constitution or by law. Rather, it is a rule promulgated by the New Jersey Supreme Court for the oversight of the New Jersey bar. Furthermore, Tolchin has not made any showing that he has reasonably relied on Rule 1:26 to his detriment. Rather, the record indicates that Tolchin was unaware of what was required to practice in New Jersey. The New Jersey Supreme Court has approved specific standards which guide the administration of the skills and methods course. See Magistrate Report at 14-16. That court specifically directed ICLE to implement a mandatory attendance policy. This directive was only implemented after public notice of the proposal. The record indicates that the Appellees have in all ways — except for promulgating the Board of Law Examiners Rules — acted with forethought and consistency in regard to the skills and methods course. Thus, Tolchin has suffered no violation of due process. See Grayned, 408 U.S. at 109. Tolchin has not been excluded from the practice of law. To the contrary, he has unilaterally decided that the mandatory attendance requirement is too burdensome for 38a him. As a result, he is unable to satisfy New Jersey’s skills and methods course requirement, rendering him ineligible to practice there. Clearly, then, Tolchin’s inability to practice law is due to his own actions and not to any constitutional due process violation. IV. In conclusion, Tolchin has not raised an issue of fact sufficient to precluded the entry of summary judgment in favor of the Appellees. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). While it may be true, as Tolchin argues, that the bona fide office requirement may include an element of economic protectionism, such is not fatal to a state statute or regulation. See Piper, 470 U.S. 274, 285 n.18 (1985). Tolchin may also be right in noting the peculiarities present in this case: these rules were promulgated by members of the New Jersey bar to regulate members of the New Jersey bar. To be sure, there are few checks and balances — aside from seeking redress in the federal courts — to ensure that such rules are not designed primarily for the benefit of the New Jersey bar. However, we are satisfied that the requirements at issue in this case withstand Tolchin’s challenge. We continue to believe that states should have latitude “in regulating the practicing of law and admission to the bar.” Schumacher v. Nix, 965 F.2d 1262, 1269 (3d Cir. 1992). 39a We recognize that one could argue that some of the recent rapid advances in communication and transportation technology may render the bona fide office requirement’s intended benefit of attorney accessibility less significant in the future. See Piper, 470 U.S. at 287 n.21 (“Conference calls are being used increasingly as an expeditious means of dispatching pretrial matters.”); Frazier, 482 U.S. at 649 (“[MJodern communication systems, including conference telephone arrangements, make it posgible to minimize the problem of unavailability.”).\Notwithstanding this concern, and for the reasons mentioned above, we will affirm the district court’s grant of summary judgment to the defendants. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit Order of District Judge William G. Bassler, United States District Gourt for the District of New Jersey UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ROBERT J. TOLCHIN, ) Plaintiff, ) Civ. No. 94-4860 (WGB) Vv. ) THE SUPREME COURT OF THE) ORDER STATE OF NEW JERSEY, et. al. ) Defendants. ) This matter having come before the Court on the defendants’ motion for summary judgment; and The Court having referred the matter to the Honorable Dennis M. Cavanaugh, U.S.MJ., for a Report and Recommendation pursuant to 28 US.C. § 636(b)(1)(B) & (C), Fed. R. Civ. P. 72, and Local Rule 40A.2; and Plaintiff Robert J. Tolchin having filed objections to the Report and Recommendation under Fed. R. Civ. P. 72(b) and Local Rule 40D.5; and 4la The Court having conducted a de novo review; and The Court having considered the written submissions of the parties; and The Court having found the objections to be without merit; and For good cause shown; It is on this 14th day of December, 1995 ORDERED that the Report and Recommendation of United States Magistrate Judge Dennis M. Cavanaugh, filed on August 29, 1995 , is hereby ADOPTED as the findings of fact and conclusions of law of this Court; and It is FURTHER ORDERED that defendants’ motion for summary judgment is GRANTED; and It is FURTHER ORDERED that the Complaint is DISMISSED. [S/ WILLIAM G. BASSLER, U.S.D,J. 42a NOT FOR PUBLICATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ROBERT J. TOLCHIN, Plaintiff, v. THE SUPREME COURT OF THE STATE OF NEW JERSEY, et. al., Defendants. ) ) ) ) ) ) Hon. William G. Bassler Civ. No. 94-4860 (WGB) REPORT & RECOMMENDATION — DENNIS M. CAVANAUGH, U.S. Magistrate Judge: This matter comes before the Court upon motions by Defendants for summary judgment, pursuant to Fed.R.Civ.P. 56. These motions were referred to the undersigned for the within Report and Recommendation by the Honorable William G. Bassler, pursuant to 28 U.S.C § 636(b)(1)(B) and (C), Fed.R.Civ.P. 72, and New Jersey Local Rule 40A.2. Oral argument was heard on June 43a 12, 1995. For the reasons discussed below, the Court recommends that Defendants’ motions for summary judgment be granted and Plaintiffs complaint be dismissed. BACKGROUND Plaintiff, Robert J. Tolchin (“Tolchin”), is a resident of Scarsdale, New York. Tolchin graduated from Cardozo Law School in 1992. He sat for and passed the New Jersey Bar Exam in July, 1992, and was sworn in to the New Jersey Bar in December 1992. As a newly admitted attorney, Tolchin was required to complete a skills and methods course on New Jersey practice, approved by the New Jersey Supreme Court as a condition to maintaining his New Jersey license. N.J.Ct.R. 1:21-l(a); NJ.CtR. 1:26. The skills and methods course is intended to prepare attorneys for the transition from either law school to legal practice in New Jersey, or from legal practice in another state to legal practice in New Jersey. See ICLE Rule 12G Statement, 411. The skills and methods course is also intended to familiarize and teach attorneys local nuances of practice and procedure in New Jersey. Id. The New Jersey Institute for Continuing Legal Education (“ICLE”) administers the skills and methods course on behalf of the New Jersey Supreme Court. Affidavit of Stephen W. Townsend, 15 (“Townsend Aff.”); see also Affidavit of Joseph J. Hogya, 17 (“Hogya Aff.”). ICLE is the only organization which has ever administered the skills and methods course. Jd. Beginning January 1, 1987, the New Jersey Supreme Court directed ICLE to enforce a mandatory attendance policy for all registrants of the skills and methods course, irrespective of residence. Hogya Aff. 94 3-4. The mandatory attendance policy was imposed at the direction and approval of the Supreme Court of New Jersey upon the recommendations of the Supreme Court's Advisory Committee on Bar Admissions and proposals of an ad hoc working group. Townsend Aff. 94 3-4. Among others, the Advisory Committee on Admissions was comprised of the entire membership of the Board of Bar Examiners. See N.J.CtR. 1:27A-2. The mandatory _attendance policy was implemented after public notice of the proposed amendment. Townsend Aff. 7 4. Presently, ICLE offers the skills and methods course in four cycles throughout the year in three different scheduling formats. Newly admitted attorneys are free to choose the course cycle and format which is most convenient for them. Regardless of which cycle or format a newly admitted attorney chooses, attendance is mandatory. In the case at bar, Plaintiff corresponded with ICLE and inquired as to whether he could satisfy the New Jersey continuing education requirements through equivalent courses offered in New York or through home study materials. Affidavit of Robert J. Tolchin, Esq., 110 (“Tolchin Aff.”); Hogya Aff.,46. Plaintiff was advised that 45a in order to satisfy the New Jersey continuing education requirements he must physically attend the courses in New Jersey. Id. Plaintiff initiated the present action to challenge the constitutionality of the mandatory attendance requirement. Tolchin alleges that the mandatory attendance requirement violates the Privilege [sic] and Immunities Clause of Article IV § 2, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Commerce Clause and the right to interstate travel. Complaint, 41 59-64. Additionally, Plaintiff claims that the bona fide office requirement under NJ.Ct.R. 1:21-1(a) violates the Privileges and Immunities Clause of Article IV § 2, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Commerce Clause, the First Amendment and the right to interstate travel. Complaint, 1 78-84. Presently before the Court are Defendants’ [sic] motions for summary judgment. Defendants contend that Plaintiff's complaint fails to state a claim upon which relief can be granted because neither the mandatory attendance requirement nor the bona fide office requirement violate any provisions of the United States Constitution. The * Motions for summary judgment were filed separately on behalf of Defendants ICLE and Joseph J. Hogya, Esq. (hereinafter “ICLE"), and Defendants Supreme Court of New Jersey, Robert Wilentz, Stephen W. Townsend, New Jersey State Board of Bar Examiners and Samuel j. Uberman (hereinafter “New Jersey”). Except as otherwise indicated, the Defendants will be referred to collectively as “Defendants”. 46a a mandatory attendance requirement does not violate the Privileges and Immunities Clause because it applies equally to both in-state and out-of-state residents. Defendants argue the Due Process Clause is not violated by the mandatory attendance requirement because sufficient standards have been established to avoid arbitrary administration of the skills and methods course. Specifically, Defendants claim the Advisory Committee on Bar Admissions, on which the Board of Bar Examiners sat, made specific recommendations concerning the curriculum for the skills and methods course. These recommendations were ultimately adopted by the Supreme Court of New Jersey and implemented by ICLE. Defendants also take the position that Plaintiffs Equal Protection claim is meritless because the mandatory attendance requirement is rationally related to New Jersey’s legitimate interest of preparing young attorneys for the rigors of legal practice. Moreover, Defendants contend that Plaintiffs clain~ that the mandatory attendance requirement violate: the Commerce Clause is meritless because the requirement does not discriminate against interstate commerce. Similarly, Defendants insist that Plaintiff's right to travel clam is meritless because the mandatory attendance requirenent actually encourages and promotes interstate travel. Defendants also contend that the bona fide office requirement is constitutional inthat it does not violate the Privileges and Immunities Clause because the 47a requirement applies to both resident and non-resident attorneys. Furthermore, Defendants claim that the bona fide office requiremeni does not violate the Due Process or Equal Protection Clauses because the requirement is rationally related to New Jersey's interest in insuring that non-resident attorneys are available to local courts, practitioners and clients and promotes familiarity with local practice and procedure. Defendants do not address Plaintiffs Commerce Clause, First Amendment or right to travel claims. Plaintiff opposes some, but not all, of the arguments raised by Defendants’ summary judgment motion. Plaintiff counters Defendants’ arguments concerning his Privileges and Immunities claim by asserting that the mandatory attendance policy and bona fide office requirement, while not discriminating against out-of-state attorneys per se, places an undue burden on the right of out-of-state residents to practice law in New Jersey. Plaintiff claims that the mandatory attendance policy and the bona fide office requirements are protectionist measures by the New Jersey Bar to prevent New York and Philadelphia lawyers from practicing law in New Jersey. Transcript from oral argument, June 12, 1995, 13:23-14:6 (“Tr.”). As such, Plaintiff claims that “New Jersey is the last bastion of protectionism against out-of-state lawyers”. Tr. 13:22-13:23. Plaintiff also claims that the mandatory attendance policy is arbitrary and capricious and violates Due Process because no format or curriculum has been promulgated, contrary to N.J. Court Rule 1:26. Plaintiff fails to oppose Defendants’ motion for 48a ik meres eeseiiietccmsiiiacautuiutaaiiiaaiuaailill summary judgment on the remaining constitutional claims. DISCUSSION 1. Standard for Summary Judgment? Summary judgment may be granted only if all probative materials of record, viewed with all inferences in favor of the non-moving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989). An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See Anderson _v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is “material” if it influences the outcome under the applicable law. Id. at 248. The moving party bears the initial burden of demonstrating either (1) that there is no genuine issue of fact and that as a matter of law, the moving party must prevail, or (2) that the non-moving party has not shown facts relating to an essential element of the issue for which it bears the burden. Celotex at 331. Once either showing is * Essentially, Defendants [sic] motions seek judgment on the Pleadings pursuant to Fed.RCiv.P. 12(c). However, since the Defendants have relied on submissions outside the pleadings in support of their motions, Defendants’ motions will be treated as motions for summary judgment pursuant to Fed.R.Civ P. 56(c). made, the burden shifts to the non-moving party, who must demonstrate facts which support each element for which it bears the burden and establish the existence of genuine issues of material fact. Id. at 333, n.3. To satisfy this burden, the non-moving party “may not rest upon the mere allegations or denials” of its pleading. Fed.R.Civ.P. 56(e). Rather, it must produce sufficient evidence to support a jury verdict in its favor, see Anderson at 249, and not just create “some metaphysical doubt as to material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The burden of persuasion, however, always remains with the moving party. If there is any reasonable doubt as to the necessity of a trial, summary judgment should not be granted. Celotex at 331; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61 (1970). Il. Mandatory Attendance at Skills and Methods Course NJ.Ct.R. 1:21-1(a), in pertinent part, provides: Except as provided below, no person shall practice law in [the State of New Jersey] unless that person is an attorney holding a plenary license to practice in this state, has complied with the R. 1:26 skills and methods course in effect on the date of the attorneys admission, is in good standing, and maintains a bona fide office for the practice of law in this state regardless of where the attorney is domiciled. NJ.Ct.R. 1:26, in pertinent part, provides: 50a ee All newly admitted attorneys shall successfully complete a skills and methods course that has been approved by the Supreme Court. The course format shall be set forth in the rules of the Board of Bar Examiners. .. . Pursuant to R. 1:21-l(a), failure to complete the course successfully shall render an attorney ineligible to practice law. In a report issued May 31, 1984, the New Jersey Supreme Court's Advisory Committee on Bar Admission’ made a recommendation to the Supreme Court that attendance at the skills and methods course be mandatory. Townsend Aff. J 3. The Advisory Committee also made certain recommendations concerning the curriculum of the skills and methods course. See 113 N.J.LJ. 678-679. The Supreme Court referred the Committee’s recommendations to an ad hoc working group to develop proposals to restructure the skills and methods course accordingly. Townsend Aff. 74. On January 30, 1986, proposals were published by the Supreme Court for public comment in the New Jersey Law Journal. Id. Following a period of public comment, the Supreme Court adopted, and ICLE implemented, the Proposals developed by the ad hoc working group, upon the recommendations of the advisory committee. Id. at 15. Since their implementation, ICLE has enforced the Proposals developed by the ad hoc working group, including the mandatory attendance policy. Hogya Aff. q 4. > Each member of the Board of Bar Examiners sat on the Advisory Committee. 5la Currently, the skills and methods course is offered by ICLE four times per year, in three different scheduling formats, in locations throughout the State. While registrants are free to choose the time and format which is most convenient for them, registrants are required to physically attend all lectures.* Id. at 7 5. \ Priv 1 ties CI Plaintiffs complaint alleges that the mandatory attendance policy violates the Privileges and Immunities Clause of the United States Constitution. Defendants claim that the mandatory attendance requirement is constitutional due to the fact that it applies equally to resident and non-resident attorneys. Article IV, § 2, of the Constitution provides “[c]itizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”. The Privileges and. Immunities Clause was intended to “fuse into one Nation a collection of independent sovereign States”. Supreme Court of New Hampshire v. Piper, +70 U.S. 274, 279 (1985) (quoting Toomer v. Witsell, 334 U.S. 385, 395 (1948). Thus, the Privileges and Immunities Clause applies “[o]nly with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the nation as a * Registrants may request an exemption from an individual lecture. If granted, the registrant is required to make up the lecture in one form or another. A complete waiver as to all lectures has never been allowed. 52a single entity”. Piper, +70 U.S. at 279 (quoting Baldwin v. Montana Fish _& Game Comm’n, 436 US. 371, 383, (1978). The practice of law has consistently been considered a “privilege” under Art. IV, § 2. Barnard v. Thorstenn, 489 U.S. 546, 553, (1989): Supreme Court of Virginia v. Friedman, 487 U.S. 59, 65, (1988): Piper, +70 U.S. at 279-283. This is so because the legal profession not only plays a vital role in the national economy, but also facilitates the vindication of important federal rights. See Piper, 470 US. at 281. Thus, states may not discriminate against non-resident attorneys right to practice law. In Piper, the Supreme Court struck down a New Hampshire residency requirement which limited state bar admission to New Hampshire residents. Piper, 470 U.S. at 274. The Piper Court determined that the residency requirement deprived non-residents of a protected privilege. Id. at 284. The Piper Court also determined that the discrimination against non-residents was not substantially justified since less restrictive alternatives, including mandatory attendance at seminars on state practice, supported the State’s interest in insuring that admitted attorneys were familiar with local rules and procedure. Id. at 284-286. Similarly, in Friedman, the Supreme Court struck down a rule which allowed attorneys who were licensed in another state, and had become permanent residents of Virginia, admission to the Virginia bar simply on motion. 53a Friedman, 487 U.S. at 62. Non-residents of Virginia admitted to practice in another state, however, were required to take the Virginia bar exam. The Supreme Court determined that Virginia’s discretionary admissions policy violated the Privileges and Immunities Clause by denying non-resident attorneys the opportunity to practice law in Virginia on terms substantially equal to those of resident attorneys. Id. at 70. More recently, in Barnard, the Supreme Court struck down a residency requirement incorporated into a local District Court Rule which provided that before an otherwise qualified attorney could be admitted to the Virgin Islands Bar he/she must establish he/she “resided in the Virgin Islands for at least one year immediately preceding his[/her] proposed admission” and that “[ilf admitted to practice, he[/she] intends to continue to reside in and to practice law in the Virgin Islands”. Barnard, 489 U.S. at 552-559. The Supreme Court held that the residency requirement violated the Privileges and Immunities Clause by excluding non-residents from the Virgin Isands Bar. Id. Moreover, the Court determined that the residency requirement did not bear a substantial relation to the Virgin Islands District Court's objectives of, among ther things, insuring the availability of non- resident attorneys and maintaining an adequate level of competence in local law. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1172%3A1. Public record. Not legal advice.