Amicus Curiae Brief — Tolchin v. Supreme Court of New Jersey

_ MOTION FILED

oci = 2 1997,

No. 97-209

In The

Supreme Court of the United States

October Term, 1996

eo

ROBERT J. TOLCHIN, individually and on

behalf of all others similarly situated,

Petitioner,

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

¢

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF AMICUS CURIAE

THE PHILADELPHIA BAR ASSOCIATION

IN SUPPORT OF PETITIONER

®

ARLIN M. Apams*

Nancy WINKELMAN

Attorneys for Amicus Curiae

The Philadelphia Bar Association

*Counsel of Record

Schnader Harrison Segal & Lewis, LLP

1600 Market Street, Suite 3600

Philadelphia, Pennsylvania 19103

(215) 751-2000

Of Counsel.

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF THE PHILADELPHIA BAR

ASSOCIATION IN SUPPORT OF PETITIONER

Pursuant to Rule 37.2 of the rules of this Court, the

Philadelphia Bar Association respectfully moves this

Court for leave to file the attached brief amicus curiae in

support of the petitioner. The petitioner and respondents

Supreme Court of New Jersey, Chief Justice Deborah T.

Portiz, Stephen W. Townsend, New Jersey Board of Bar

Examiners, and Samuel J. Uberman have consented to the

filing of this brief. Respondents the New Jersey Institute

for Continuing Legal Education and Joseph J. Hogya have

not provided consent.

The Philadelphia Bar Association is the oldest char-

tered metropolitan bar association in the United States.

Founded in 1802 by fewer than one hundred lawyers to

create and maintain a law library for the city’s legal

community, the Association’s membership now exceeds

twelve thousand and its activities on behalf of Phila-

delphia lawyers are wide-ranging.

Throughout its long history, the Association has been

deeply concerned about issues involving the practice of

law and access to justice. In view of the geographical

proximity of Philadelphia to New Jersey, a substantial

portion of the Association’s members has taken and

passed the New Jersey bar exam, fulfilled the New Jersey

legal education requirements, and is admitted to practice

in New Jersey.

Yet, despite the geographical proximity and despite

the fact that the Association’s lawyers who are admitted

in New Jersey are otherwise fully qualified to practice in

their sister state, the New Jersey rules preclude them

from doing so unless they also have a bona fide office in

New Jersey. There is no reciprocal measure in Pennsylva-

nia — New Jersey lawyers who are admitted to the Penn-

sylvania bar and who have satisfied the Pennsylvania

legal education requirements are free to practice in the

courts of Pennsylvania, regardless of where their office is

located.

The Association is deeply concerned about the eco-

nomic, practical, and ethical constraints that the New

Jersey bona fide office rule imposes on its members and on

their ability to represent their clients. It is concerned that

the bona fide office rule, while perhaps serving the pur-

pose of protecting New Jersey economic interests, is

severely burdening the free flow of commerce between

Pennsylvania and New Jersey. And, because the Associa-

tion’s members in downtown Philadelphia are but a few

miles and a fifteen-minute car or train ride from New

Jersey, the Association is concerned that, despite recog-

nizing that “it may be true . . . that the bona fide office

requirement may include an element of economic protec-

tionism,” Tolchin v. Supreme Court of the State of New Jersey,

111 F.3d 1099 (3d Cir. 1997) (39a),1 the Court of Appeals

for the Third Circuit upheld the constitutionality of the

bona fide office rule on so slender a reed as “attorney

accessibility for clients, counsel and parties.” Id. (21a).

In view of its abiding concern with the effect of the

New Jersey bona fide office rule on its members, the

1 Citations are to the Appendix to the Petition for a Writ

of Certiorari filed by Robert J. Tolchin.

|

Philadelphia Bar Association respectfully requests that it

be allowed to participate in this case and to file the

attached brief amicus curiae in support of petitioner.

Respectfully submitted,

ARLIN M. Apams*

Nancy WINKELMAN

Attorneys tor Amicus Curiae

The Philadelphia Bar Association

*Counsel of Record

SCHNADER HARRISON SEGAL & Lewis, LLP

1600 Market Street, Suite 3600

Philadelphia, Pennsylvania 19103

(215) 751-2000

Of Counsel.

Dated: October 3, 1997.

TABLE OF CONTENTS

Page

TABLES OF AUTIROIRIEEES «oo ccccecescce ew ceeweesds li

STATEMENT OF INTEREST OF AMICUS CURIAE.. 1

SUING OF ARGSUBEEINE ¢ 5 icc ndcaeacdeoeneeees 1

pee, a ee rr rr er mere oot ry ec 5

THE COURT OF APPEALS’ DECISION IS INCON-

SISTENT WITH THIS COURT’S CLEAR AND

LONGSTANDING DORMANT COMMERCE

CLAUSE FURBO RUE 6 is sees cccveesaneuss 5

A. New Jersey’s Bona Fide Office Rule Is Per Se

Invalid Because Its Effect Is To Favor In-

State Economic Interests Over Out-Of-State

Beomomnie TOPO x oc ke oon ck dx de ache dvees 6

B. Even If New Jersey’s Bona Fide Office Rule

Does Not Trigger Heightened Scrutiny

Under The Commerce Clause, The Rule Is

Nonetheless Invalid Under The Commerce

Clause Balancing Test................00006: 11

CASO LARUE 6 5009.9 40 OOo Rw es AOL MES OER ORES REET 15

ii

TABLE OF AUTHORITIES

Page

Barnard v. Thorstenn, 489 U.S. 546 (1989) .. 1, 11, 12, 14

Brown-Forman Distillers Corp. v. New York State

Liquor Auth., 476 U.S. 573 (19G6)......00cses005s0) ©

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S.

902 (19RE) .. ccs caceviscassweneesebesss ase eee

Frazier v. Heebe, 482 U.S. 641 (1987)....1, 11, 12, 13, 14

Healy v. Beer Institute, 491 U.S. 324 (1989)........... 10

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)..5, 9, 10, 11

In re Sackman, 448 A.2d 1014 (N.J. 1982) ............. 4

In re Young, 675 A.2d 1117 (N.J. 1996).........0...... 8

Supreme Court of New Hampshire v. Piper, 470 U.S.

BPM CAPO 6 6h. 44045-0000 eee h, a) 4, day 10, 1%

Supreme Court of Virginia v. Friedman, 487 U.S. 59

(T9GG) isos cvceccssaniscvaanceaeeeees seen eee 1

Western & Southern Life Ins. Co. v. State Bd. of

Equalization, 451 U.S. 648 (1981).................... 5

STATEMENT OF INTEREST OF AMICUS CURIAE!

The interest of amicus curiae the Philadelphia Bar

Association is set forth in the motion accompanying this

brief.

SUMMARY OF ARGUMENT

In four cases decided in the 1980s, this Court estab-

lished certain important guidelines with respect to state

regulation of lawyers. See Supreme Court of New Hampshire

v. Piper, 470 U.S. 274 (1985) (New Hampshire residency

requirement restricting state bar admission to New

Hampshire residents is unconstitutional); Frazier v. Heebe,

482 U.S. 641 (1987) (invalidating local rule of the United

States District Court for the Eastern District of Louisiana

requiring lawyers who do not reside in the state to main-

tain an office in the state); Supreme Court of Virginia v.

Friedman, 487 U.S. 59 (1988) (Virginia rule permitting

Virginia residents who are licensed to practice law in

another state to be admitted to the Virginia bar solely on

motion, while requiring nonresidents to take the Virginia

bar exam, is unconstitutional); Barnard v. Thorstenn, 489

U.S. 546 (1989) (local rule of District Court of the Virgin

Islands requiring that before an otherwise qualified attor-

ney can be admitted to the Virgin Islands bar, the attor-

ney must establish that s/he resides and intends to

1 Counsel for a party did not author this brief in whole or

in part. No person or entity, other than the amicus curiae, its

members, or its counsel, made a monetary contribution to the

preparation and submission of this brief.

continue to reside in the Virgin Islands is unconstitu-

tional).

This case presents an opportunity for this Court to

resolve an important question involving the state regula- .

tion of lawyers left open by its prior decisions — whether

a state can require otherwise-qualified lawyers to main-

tain an office in the state in order to practice there.? In his

concurring opinion in Piper, Justice White stated, “I

would postpone to another day such questions as

whether the State may constitutionally condition mem-

bership in the New Hampshire Bar upon maintaining an

office for the practice of law in the State of New Hamp-

shire.” 470 U.S. at 289 (White, J., concurring). With this

case, that day has come.

The New Jersey bona fide office rule prohibits any

lawyer from practicing law in New Jersey unless, in

addition to passing the bar examination and meeting all

other requirements, the lawyer maintains a “bona fide”

office within the state. See N.J.Ct.R. 1:21(a).3 The rule has

2 In his petition for a writ of certiorari, petitioner presents

the issues of the constitutionality of both the New Jersey

continuing legal education requirement and the bona fide office

requirement. Amicus curiae the Philadelphia Bar Association

limits its brief to the bona fide office issue.

3 The New Jersey bona fide office rule provides, in relevant

part:

[N]o person shall practice law in this State unless that

person is an attorney holding a plenary license to

practice in this State . . . and maintains a bona fide

office for the practice of law in this State regardless of

where the attorney is domiciled. A bona fide office is

more than a maildrop, a summer home that is

been described as designed to “stop lawyers from Phila-

delphia and New York dead in their tracks as they seek to

break into the New Jersey market without incurring

major operating costs. And [the rule] is certainly needed

to protect lawyers who regularly practice in the State,

said New Jersey State Bar Association President Cynthia

M. Jacob.” Rule Changes on the Money: Lawyer Office Regs

Stiffened, N.J. Lawyer, Aug. 5, 1996, at 1.

The Court of Appeals for the Third Circuit upheld

the constitutionality of the bona fide office rule on the sole

ground that the rule “has a rational relationship to the

benefit of attorney accessibility for clients, courts, counse!

and parties.” Tolchin, 111 F.3d 1099 (21a). In view of the

fact that the vast majority of Philadelphia lawyers main-

tain their principal office only one or two miles from the

courts in southern New Jersey in which they practice,

whereas lawyers in the northern part of the state practice

some 80 miles from those same southern New Jersey

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.

N.J.Ct.R. 1:21-1(a)(1996) (80a-85a).

courts, the rule cannot be justified on accessibility

grounds.

Indeed, the geography is such that many Phila-

delphia lawyers are more accessible to their New Jersey

clients and to New Jersey courts than numerous New

Jersey lawyers are. In reality, the rule targets Philadelphia

(and New York) lawyers who - at least from the perspec-

tive of the New Jersey economic interests the rule seeks

to protect — are perhaps all too accessible to New Jersey.

The bona fide office rule has one purpose and one

effect: to prevent Philadelphia and New York lawyers

from competing with New Jersey lawyers. Certiorari is

warranted because of the fundamental effect such an in-

state office requirement has on the practice of law, and

because the Third Circuit’s decision upholding the rule is

flatly inconsistent with this Court’s dormant Commerce

Clause jurisprudence.*

4 This bona fide office rule also raises significant issues

under the Privileges and Immunities Clause. While the rule

ostensibly places the same burden upon residents and

nonresidents of New Jersey (both groups are required to

maintain a bona fide office in the state), because “the

overwhelming majority of attorneys have their principal office

in the state where they live,” In re Sackman, 448 A.2d 1014, 1020

(N.J. 1982), the rule disproportionally discriminates against

nonresidents. Although petitioner’s questions presented may

be broad enough to include the Privileges and Immunities

Clause issue, in his brief he focuses on the dormant Commerce

Clause issue. Accordingly, amicus curiae the Philadelphia Bar

Association will do the same.

ARGUMENT

THE COURT OF APPEALS’ DECISION IS INCONSIS-

TENT WITH THIS COURT’S CLEAR AND LONG-

STANDING DORMANT COMMERCE CLAUSE

JURISPRUDENCE.

The Commerce Clause contains “an implied limita-

tion 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, 451 U.S. 648, 652 (1981).

In analyzing state economic regulation under this “nega-

tive” or “dormant” aspect of the Commerce Clause, this

Court has developed a two-tiered approach. See C & A

Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390

(1994); Brown-Forman Distillers Corp. v. New York State

Liquor Auth., 476 U.S. 573, 578-79 (1986). “When a statute

directly regulates or discriminates against interstate com-

merce, or when its effect is to favor in-state economic

interests over out-of-state interests, [this Court has] gen-

erally struck down the statute without further inquiry.”

Brown-Forman, 476 U.S. at 579 (citing Philadelphic >. New

Jersey, 437 U.S. 617 (1978)). When, however, “a statute has

only indirect effects on interstate commerce and regulates

evenhandedly, [this Court has] examined whether the

State’s interest is legitimate and whether the burden on

interstate commerce clearly exceeds the local benefits.”

Id. (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970)).

The Court of Appeals’ holdings - that the bona fide

office rule: (1) does not favor in-state economic interests

over out-of-state interests and so is not subject to height-

ened review; and (2) is justified under the less stringent

Commerce Clause balancing test on the sole ground of

attorney accessibility - are flatly inconsistent with this

Court’s jurisprudence.

A. New Jersey’s Bona Fide Office Rule Is Per Se Invalid

Because Its Effect Is To Favor In-State Economic Inter-

ests Over Out-Of-State Economic Interests.

The Third Circuit rejected petitioner’s argument that

the bona fide office rule directly discriminates against out-

of-state interests and so should be subject to heightened

scrutiny under the Commerce Clause. According to the

Court of Appeals, “it is reasonable to assume that the

only attorneys actually burdened by this requirement are

those who wish to maintain a small or sporadic practice

in New Jersey [and] such attorneys may be New Jersey

residents as well as nonresidents.” Tolchin, 111 F.3d 1099

(16-17a). This conclusion, however, misconstrues the rele-

vant Commerce Clause analysis.

While the rule’s effect on resident and nonresident

individuals is clearly an important element in a challenge

under the Privileges and Immunities Clause, the relevant

inquiry under the dormant Commerce Clause pertains to

in-state and out-of-state economic interests, not residence.

See Brown-Forman, 476 U.S. at 579. Even assuming

arguendo that the bona fide office rule imposes burdens on

resident and nonresident individuals evenhandedly

(which it does not), it is not evenhanded with regard to

in-state and out-of-state economic interests.

For purposes of the dormant Commerce Clause, law

firms based in New Jersey constitute in-state interests,

while firms based in Philadelphia or other nearby mar-

kets are out-of-state economic interests, regardless of

NS

where the individual lawyers who comprise the firms

reside. The bona fide office requirement thus imposes no

burden on in-state economic interests, because New Jer-

sey-based law firms, by definition, satisfy the office

requirement.°

On the other hand, out-of-state interests, such as

Philadelphia-based law firms that frequently represent

clients in southern New Jersey, are saddled with the

rather extraordinary burden of having to maintain a sec-

ond office. Many firms are unable to bear the consider-

able costs of operating a “bona fide office” in New Jersey;

small firms and solo practitioners are challenged simply

to staff both offices; and even those firms that can afford

a New Jersey office may have no reason or need to

establish one. Moreover, because the vast majority of a

Philadelphia firm’s New Jersey litigation practice occurs

in courthouses just a few miles from its Philadelphia

office, New Jersey’s office requirement imposes an

expense that yields no benefit to counsel, clients or

courts. Yet, without a New Jersey office, these firms are

forced to refer their New Jersey cases to New Jersey firms

— even when the client is located in Philadelphia and

chooses to be represented by a Philadelphia lawyer, and

even when the matter does not involve litigation.

Consider, for example, the effect of the rule on a

lawyer who handled a single, non-litigation matter in

> A lawyer whose office is in his or her home will satisfy the

bona fide office rule as long as the office is a “functioning office”

that meets the requirements of the rule. See Tolchin, 111 F.3d 1099

(17a).

New Jersey. The New Jersey Law Journal reports the

following:

When Daniel Herron died on July 13, 1992, leav-

ing an estate in excess of $200,000, George

Guyer Young, Jr., of Havertown, [Pennsylvania],

the executor, hired his son, attorney George

Guyer Young, III, to administer the estate

The junior Young is admitted in New Jersey but

has no office in the state, and did all the neces-

sary work to distribute the proceeds of the

estate to the 16 heirs, six of whom live in New

Jersey.

The lawyer received $16,000 and there is no

record that anyone was unhappy with his work

except one heir, a niece, Catherine McCorriston

of Gloucester City, [New Jersey].

She thought the fee was rather high and she also

wasn’t happy with the burial plans. Her uncle

wanted to be buried in one cemetery, she said

during an ethics hearing, and he ended up in

another one.

In the correspondence over these issues with

Youngs, McCorriston noticed from a letterhead

that the lawyer had no office in New Jersey so

she filed a grievance and the District IV Ethics

Committee followed with a complaint accusing

Young of practicing without a bona fide office.

Does One Case Require a Bona Fide Office?, N.J.L.J., Nov. 20,

1995, at 13. After a hearing, the New Jersey Supreme

Court ruled on the case, admonishing the attorney for

practicing law in New Jersey without an office and

imposing court costs. See In re Young, 675 A.2d 1117 (N_J.

1996).

a

The Third Circuit’s decision cannot be reconciled

with this Court’s opinion in Pike v. Bruce Church, Inc., 397

U.S. 137 (1970). The Arizona statute challenged in Pike

required all Arizona-grown fruit to be packaged and

labeled before being shipped outside the state. A fruit

producer objected to enforcement of the statute on the

ground that the producer already maintained a California

packing facility located just thirty-one miles away from

its Arizona harvesting site. The producer argued that the

statute imposed an unreasonable burden on interstate

commerce because it required the company to build an

expensive and unnecessary packing facility within Ari-

zona.

This Court held that Arizona’s interest in having the

fruit identified as originating in Arizona could not consti-

tutionally justify the requirement that the company build

and operate an unneeded $200,000 packing plant in Ari-

zona. See 397 U.S. at 145. Emphasizing that the statute

may constitute an invalid restraint on commerce with

respect to a particular company, even if it “does not

impose such rigidity on an entire industry,” 397 U.S. at

146, the Court concluded that:

The nature of that burden is, constitutionally,

more significant than its extent. For the Court

has viewed with particular suspicion state stat-

utes requiring business operations to be per-

formed in the home State that could more

efficiently be performed elsewhere. Even where

the State is pursuing a clearly legitimate local

interest, this particular burden on commerce has

been declared to be virtually per se illegal.

397 U.S. at 145 (citations omitted).

10

New Jersey’s bona fide office requirement imposes

upon interstate commerce precisely the same burdens

that were declared “virtually per se illegal” in Pike. Phila-

delphia firms that wish to practice law in New Jersey, like

the fruit producers in Pike, are forced to open and main-

tain expensive and unneeded offices in New Jersey, even

though such offices merely duplicate existing facilities

located just a few miles away and even though the law

firm’s work could “more efficiently be performed” in the

firm’s Philadelphia office.

Moreover, in determining the extent of the burden

placed upon interstate commerce, “the practical effect of

the statute must be evaluated not only by considering the

consequences of the statute itself, but also by considering

how the challenged statute may interact with the legiti-

mate regulatory regimes of other States and what effect

would arise if not one, but many or every, State adopted

similar legislation.” Healy v. Beer Institute, 491 U.S. 324,

336 (1989), cited in Wyoming v. Oklahoma, 502 U.S. 437,

453-54 (1992). Consider, in this respect, the draconian

effect on interstate commerce that would occur if Mary-

land, Washington, D.C., and Virginia each had bona fide

office rules like New Jersey’s.

In sum, New Jersey’s requirement that all lawyers

maintain a bona fide office within the state subjects out-of-

state economic interests to onerous, yet unnecessary, bur-

dens, while imposing no burdens upon in-state interests.

The principal effect of this requirement, and its principal

purpose, is to favor New Jersey law firms by increasing

the costs and inconveniences to Philadelphia (and New

York) firms who wish to represent clients in New Jersey.

11

Thus, even assuming arguendo that the bona fide office rule

is facially neutral with regard to resident and nonzesident

individuals, the rule is patently discriminatory with

respect to out-of-state economic interests, and is therefore

per se invalid under the dormant Commerce Clause.

B. Even If New Jersey’s Bona Fide Office Rule Does

Not Trigger Heightened Scrutiny Under The Com-

merce Clause, The Rule Is Nonetheless Invalid

Under The Commerce Clause Balancing Test.

Even if the bona fide office rule were not virtually per

se invalid under the dormant Commerce Clause, it does

not pass constitutional muster under this Court’s less

stringent dormant Commerce Clause test. “Where the

statute regulates evenhandedly to effectuate a legitimate

local public interest, and its effects on interstate com-

merce are only incidental, it will be upheld unless the

burden imposed on such commerce is clearly excessive in

relation to the putative local benefits.” Pike v. Bruce

Church, Inc., 397 U.S. 137, 142 (1970); see also C&G A

Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390

(1994). The burden the bona fide office rule imposes on

interstate commerce has been discussed above. As will be

demonstrated, that burden far exceeds any possible bene-

fit to New Jersey.

Although in the courts below, the Supreme Court of

New Jersey defended the rule as promoting lawyer com-

petence, accountability, and accessibility, the Court of

Appeals rejected the first two justifications. With respect

to competence, the Court of Appeals, relying on this

Court’s decisions in Frazier, Barnard, and Piper, concluded

12

that, “[t]he Appellees have put forth no credible argu-

ments as to why the bona fide office requirement would

make an attorney more competent.” Tolchin, 111 F.3d 1099

(20a). With respect to accountability, the Court of Appeals

determined that, “[t]he Appellees [made] no compelling

argument as to how New Jersey’s bona fide office require-

ment is rationally related to attorney accountability.” Id.

(21a). The Third Circuit’s holdings with respect to compe-

tence and accountability are fully consistent with this

Court’s precedent. See Frazier v. Heebe, 482 U.S. 641, 649

(1987) (“[T]he 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); Supreme Court of New Hampshire

v. Piper, 470 U.S. 274, 285 (1985).

However, in considering the third justification

offered for the rule — accessibility - the Court of Appeals

disregarded this Court’s precedent and upheld the bona

fide office rule on the sole ground that there exists a

“rational relationship between the bona fide office require-

ment and the intended benefit of attorney accessibility.”

Tolchin, 111 F.3d 1099 (21a). The Court of Appeals’ hold-

ing is clearly at odds with this Court’s determination that

residency and in-state office requirements are “unnecess-

ary and irrational” methods for ensuring attorney acces-

sibility. See, e.g., Frazier v. Heebe, 482 U.S. 641, 646 (1987).

Indeed, this Court has long recognized that there is no

link between being located within a state and acces-

sibility. See Piper, 470 U.S. at 286-87; Frazier, 482 U.S. at

650; Thorstenn, 489 U.S. at 554.

13

In Piper, for example, a Vermont resident who had

passed the New Hampshire bar examination challenged

New Hampshire’s rule limiting bar membership to New

Hampshire residents. New Hampshire sought to defend

the rule as a means for ensuring attorney accessibility.

Because the residency rule discriminated on its face

against nonresidents, the Court in Piper assessed the

rule’s validity under the Privileges and Immunities

Clause, not the dormant Commerce Clause. However,

Piper’s reasoning is wholly applicable here.

This Court rejected the accessibility rationale, reason-

ing that, “[o]ne may assume that a high percentage of

nonresident lawyers willing to take the state bar exam-

ination and pay the annual dues will reside in places

reasonably convenient to New Hampshire.” 470 U.S. at

286-87. Similarly, most lawyers will maintain their offices

in reasonably convenient locations. That is, accessibility

has little to do with the state in which a lawyer’s home or

office is located, because most lawyers will live and main-

tain their offices in places convenient to their clients and,

if they are litigators, to the courts in which they practice.

As Piper makes clear, a lawyer’s accessibility to clients or

to the courthouse is mostly a function of distance; the

state borders that a lawyer may or may not cross en route

to his or her destination are irrelevant to the lawyer’s

accessibility.

That is precisely why this Court in Frazier exercised

its supervisory powers over the district courts to invali-

date as “unnecessary and irrational” an Eastern District

of Louisiana district court in-state office requirement,

holding that the office requirement, like a residency

requirement, was unjustified because “there is no link

14

between residency witi.in a State and proximity to a

courthouse.” 482 U.S. at 650. Because, like New Jersey’s

rule, the Louisiana rule required “only that the attorney

have an office somewhere in the State, regardless of how

far that office is from the courthouse,” it could not be

justified on accessibility grounds. 482 U.S. at 650.

The court in Frazier also noted that “modern commu-

nications systems, including conference telephone

arrangements, make it possible to minimize the problem

of unavailability.” 482 U.S. at 649. Today, a decade later,

telecommunications technology is far more advanced

than it was when Frazier was decided. Lawyers now are

routinely accessible by cellular telephones, computer

modems, facsimile machines, and electronic beepers. If an

in-state office requirement was both “unnecessary and

irrational” in 1987, then New Jersey’s office requirement

cannot possibly be justified on accessibility grounds

today. See Frazier, 482 U.S. at 646.

Indeed, since Piper was decided in 1985, this Court

consistently has rejected “accessibility” as a sufficient

justification for such sweeping restrictions on the ability

of lawyers to practice law in states in which they have

been admitted to practice. Even the Virgin Islands’

unique geographic isolation and accessibility concerns,

together with its irregular airline and telephone service,

were insufficient to justify its residency requirement. See

Barnard, 489 U.S. 546, 554 (1989).

As a result of Philadelphia’s proximity to New Jersey

and recent advances in widely-used telecommunications

technology, New Jersey’s bona fide office requirement is

not even plausibly justified by the state’s interest in

15

ensuring attorney accessibility. To the contrary, Phila-

delphia (and New York) lawyers are completely acces-

sible to New Jersey — more accessible, in fact, than many

of their in-state colleagues are to clients and courts in

other parts of the state. For these reasons, the bona fide

office rule is invalid even under the more deferential

dormant Commerce Clause balancing test.

+

CONCLUSION

Like the residency cases that this Court decided in

the 1980s, this case is an important case involving state

regulation of lawyers and the practice of law. The New

Jersey bona fide office rule impermissibly restricts the

practice of law, while providing no true benefit to New

Jersey. Amicus curiae the Philadelphia Bar Association

respectfully requests that this Court grant the petition for

a writ of certiorari.

Respectfully submitted,

ARLIN M. Apams*

Nancy WINKELMAN

Attorneys for Amicus Curiae

The Philadelphia Bar Association

"Counsel of Record

SCHNADER HArRISON SEGAL & Lewis, LLP

1600 Market Street, Suite 3600

Philadelphia, Pennsylvania 19103

(215) 751-2000

Of Counsel.

Dated: October 3, 1997.