Opposition Brief — Tolchin v. Supreme Court of New Jersey

LU FILED

No. 97-209

In the

Supreme Court of the United!States ““““

October Term, 1997

ROBERT J. TOLCHIN, individually and on behalf of

all others similarly situated,

Petitioner,

v.

THE SUPREME COURT OF THE STATE

OF NEW JERSEY, et ai.,

Respondents.

On Petition For A Writ of Certiorari

To The United States Court Of Appeals

For the Third Circuit

BRIEF OF RESPONDENTS

SUPREME COURT OF NEW JERSEY,

ROBERT WILENTZ, STEPHEN W. TOWNSEND,

THE NEW JERSEY STATE BOARD OF BAR

EXAMINERS, AND SAMUEL J. UBERMAN

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Peter Verniero

Attorney General of New Jersey

R.J. Hughes Justice Complex

P.O. Box 112

Trenton, New Jersey 08625

(609) 292-8866

Attorney for Respondents

Jeffrey J. Miller

Assistant Attorney General

Of Counsel

(Counsel of Record)

Eileen P. Keily

Deputy Attorney General

On the Brief

|

i

QUESTIONS PRESENTED

1. Whether the Third Circuit properly applied the

balancing test found in Pike v. Bruce Church, Inc., 397 U.S.

137 (1970), in finding that the New Jersey Supreme Court’s

standards for the practice of law in its jurisdiction do not

violate the dormant aspect of the Commerce Clause, to the

extent that they require all attorneys who wish to practice in

New Jersey to maintain a bona fide office in that state,

regardless of domicile.

2. Whether the Third Circuit properly concluded

that the standards established by the New Jersey Supreme

Court for the practice of law in that jurisdiction violate the

dormant aspect of the Commerce Clause, to the extent that

they require that all attorneys complete a skills and methods

course which mandates in person attendance at course sites

in New Jersey.

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ................ i

REASONS FOR DENYING THE PETITION ..... 6

THE THIRD CIRCUIT PROPERLY APPLIED

WELL ESTABLISHED PRECEDENT TO

REACH ITS DETERMINATION THAT THE

NEW JERSEY SUPREME COURT’S

STANDARDS GOVERNING THE PRACTICE

OF LAW DO NOT VIOLATE THE

COMMERCE CLAUSE. ............... 6

A. The New Jersey Supreme Court’s

Standards Governing the Practice of

Law in New Jersey Do Not Discriminate

Against Interstate Commerce Because

They Apply Equally to Resident and

Non-Resident Attorneys. ........... 6

B. The New Jersey Supreme Court’s Bona

Fide Office Rule is Appropriately Related

to the Goals of Attorney Accessibility,

Accountability, and Competence. ..... . 9

a The Bona Fide Office Rule Is Consistent

With Other Decisions of This Court. .. 13

D. The In-Person Attendance Requirement

of the Skills and Methods Course is

Properly Related to the Goal of

Attorney Competence............. 17

CEEGRAMEE «505 64a we ee ee ee 19

ili

CASES CITED

Brown-Forman Distillers Corp. v. New York

Liquor Authority, 476 U.S. 572, 578-79 (1986)... . 4

C. & A. Carbone, Inc. v. Town of Clarkstown,

114 S. Ct. 1677, 1679 DU eh es 4

Frazier v. Heebe, 482 U.S. 641 (1987) ..... 14-16, 18

Goldfarb v. Virginia State Bar, 421 U.S. 773,

ar eames 14, 17

Indiana v. Limbach, 486 U.S. 269, 273 (1988) ... 3,8

Ingemi v. Pelino & Lentz, 866 F Supp. 156, 162

ction xt alk Oe ae 11

Leis v. Flynt, 439 U.S. 438, 442 a 2

Matter of Kasson, 141 N.J. 83, 87, 660 A.2d

aor, Sew CIS)... i

Matter of Sackman, 90 N.J. 521, 448 A.2d

1014, 1018-19, 528-529 are eee 17

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) . i, 5, 7

Scariano v. Justices of the Supreme Court of

Indiana, 38 F.3d 920, 927, n. 8 (7th Cir. 1994),

cert. denied, -- U.S. --, 115 §.Ct. 2582, 132

L.Ed.2d 831(1995)........ 0 8

Supreme Court of Virginia v. Friedman, 487

U.S. 59 (1988) ........2.020202~~” 13, 14, 16, 18

SATUTES CITED

fe Da Be eR ee ER Oe ee ve eOR 15

RULES CITED

eke Peer ee ee ee i i A

ee a re ee Pe eee 10

PO. TEE 6d. 6 nk Be ee ee 11, 12

RG Bs oes eee be eee eee 3

OTHER

102 New Jersey Law Journal 1 (November 30, 1978) 12

No. 97-209

In the

Supreme Court of the United States

October Term, 1997

ROBERT J. TOLCHIN, individually and on behalf of all

others similarly situated,

Petitioner,

v.

JERSEY, ROBERT WILENTZ (intended to be the Chief

Court who plaintiff believes to direct the State Board of Bar

Examiners), THE NEW JERSEY INSTITUTE FOR

Respondents.

On Petition For A Writ of Certiorari To

the United States Court of Appeals For The

Third Circui

Brief of the Respondents

2

COUNTERSTATEMENT OF THE CASE

It is well established that, “(s)ince the founding of the

Republic, the licensing and regulation of lawyers has been

left exclusively to the States....” Leis v. Flynt, 439 U.S.

438, 442 (1979). In carrying out this function, the Supreme

Court of New Jersey has established basic qualifications for

the practice of law in its jurisdiction which go beyond the

mere possession of a plenary license. First, every attorney

wishing to practice law in New Jersey must maintain a “bona

fide office” in the State. N.J.Ct.R. 1:21-1(a). Such an

office is described as “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

amount of time.” Jd. In addition, all New Jersey attorneys

must complete a “skills and methods” course approved by

the New Jersey Supreme Court. The requirements of that

course, which is presented by respondent New Jersey

Institute for Continuing Legal Education (“ICLE”), include

mandatory in-person attendance at lectures, which are

offered at sites throughout New Jersey. Ibid. Both

requirements apply to both resident and non-resident

attorneys.

Petitioner Robert Tolchin is admitted as an attorney and

practices law in New York. Tolchin has passed the New

Jersey bar and been licensed in New Jersey; however, he has

indicated that he is unwilling to attend a “skills and

methods” course at a location in New Jersey, or to maintain

a bona fide office in New Jersey. Therefore, Tolchin

challenged these standards in the United States District Court

for the District of New Jersey, arguing that they violate the

Commerce, Equal Protection, and Privileges and Immunities

Clauses of the Constitution. Tolchin’s Complaint also raised

nae ME tata on

> awe Ete ea

Tolchin’s petition seeks review of the decision of the

Tolchin has apparently abandoned his claims that the

Standards also violate the Privileges and Immunities, Equal

Protection, and Due Process Clauses, all of which were also

rejected by the Third Circuit!

' The Third Circuit rejected Tolchin’s claim that R. 1:21-1(a)

violates the Privileges and Immunities Clause because both of the

challenged requirements affect in-state and out-of-state lawyers in a

substantially equal way. Moreover, the rule’s requirements provide a

reasonable means for New Jersey to protect its legitimate interests in

regulating the quality of its bar. (App. 32).

Finally, Tolchin claimed that the attendance requirement of the

Circuit rejected this Claim, finding that an agency’s failure to follow its

own rules is not a per S¢ violation of Due Process. (App. 36). Moreover,

the court found that Tolchin made no showing that he relied on N.J.Ct.R.

4

Tolchin’s challenge to the New Jersey Supreme Court’s

rules invokes the dormant aspect of the Commerce Clause,

which “prohibits economic protectionism.” Indiana v.

Limbach, 486 U.S. 269, 273 (1988). Specifically, Tolchin

argues that the bona fide office requirement and mandatory

attendance requirements, which by their terms apply in

exactly the same manner to resident and non-resident

attorneys, in fact have such a detrimental effect on non-

resident attorneys that they effectively regulate or

discriminate against interstate commerce. The Third Circuit

rejected this argument, applying well-established standards

for the review of Commerce Clause challenges. First, the

court determined that the bona fide office and the course

attendance requirements do not directly regulate or

discriminate against interstate commerce. (App. 19). The

Third Circuit therefore applied the balancing test developed

by this Court to review state laws whose effect on interstate

commerce is minimal or indirect. See Brown-Forman

Distillers Corp. v. New York Liquor Authority, 476 U.S.

572, 578-79 (1986). This test compares “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.” (App. 19); citing C. & A.

Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677, 1679

(1994).

Reviewing the bona fide office rule in this manner, the

Third Circuit found that any differential impact that this

requirement may have on out-of-state lawyers is the

consequence not of a lawyer’s status as a resident or non-

resident of New Jersey, but rather of “the size and type of

an attorney’s practice.” (App. 17). As the decision notes,

“the only attorneys actually burdened by this requirement are

those who wish to maintain a small or sporadic practice in

1:26 to his detriment. (App. 38).

5

New Jersey.” (App. 17). Since it is likely that there are

resident attorneys who might wish to maintain a small or

different burden on perso wishing to engage in multistate

practice. Consequently, the Third Circuit found that the

bona fide office requirement does not have a discriminatory

impact on interstate commerce. (App. 18).

Similarly, the court found that the mandatory attendance

requirement for the skills and methods course does not

discriminate against interstate commerce, the Third Circuit

local benefits.” Pike y. Bruce Church, Inc., 397 U.S. 137

(1970). Both the bona fide office and the course attendance

requirements survived this test. First, the Third Circuit

y

competence, accountability and accessibility. (App. 19). See

Matter of Kasson, 141 NJ. 83, 87, 660 A.2d 1187, 1189

rational relationship to the goal of assuring attorney

accessibility. (App. 21). In making this determination, the

6

Third Circuit cited the findings of the New Jersey Supreme

Court in Matter of Kasson, supra, as an example of

accessibility problems sought to be addressed by the rule.

In that case, an attorney who failed to maintain a bona fide

office was disciplined after a state court judge encountered

numerous difficulties in contacting him. Matter of Kasson,

supra, 660 A.2d at 1188. Thus, although the Third Circuit

noted that the bona fide office requirement does have a

peripheral effect on interstate commence, since to some

degree it “limits the mobility of some lawyers and reduces

the options for consumers of the services they provide(,)”

the court concluded that this burden does not clearly

outweigh the rule’s beneficial effect on the promotion of a

legitimate state interest in attorney accessibility. (App. 22).

The Third Circuit also upheld the requirement for in-

person attendance at the approved skills and methods course,

which is offered only at sites in New Jersey. It found this

requirement to be sufficiently related to its intended

educational benefit, which is to ensure that New Jersey

attorneys are at least minimally familiar with New Jersey

law. As explained by the court, the attendance requirement

“ensures that attorneys hear -- if not listen to -- those topics

thought to be important by Appellees.” (App. 23).

Conversely, this requirement creates a substantial burden

only for those attorneys who reside a great distance from

New Jersey, who presumably make up only a small number

of lawyers who wish to practice in New Jersey. (App. 24).

7

REASONS FOR DENYING THE PETITION

PRACTICE OF LAW DO NOT VIOLATE THE

COMMERCE CLAUSE.

A. The New Jersey Supreme Court’s Standards

Governing the Practice of Law in New Jersey Do Not

Discriminate Against Interstate Commerce Because

They Apply Equally to Resident and Non-Resident

Attorneys.

Certiorari should be denied because Tolchin’s

Commerce Clause challenge to New Jersey’s requirements

for practicing lawyers fails to raise any novel or important

issues that require the attention of this Court. Rather, this

case involves a simple application of the balancing test that

was long ago developed by this Court for review of

Commerce Clause challenges to state laws. Applying this

test, a state law which is facially neutral, and does not have

is “clearly excessive in relation to the putative local

benefits.” Pike v. Bruce Church, Inc., supra, 397 U.S. at

137.

The standards for the practice of law in New Jersey

established by the New Jersey Supreme Court and set forth

in N.J.Ct.R. 1:21-1(a) clearly survive that test. The

requirements for a bona fide office and for course attendance

apply equally to in-state and out-of-state attorneys, and have

only a minimal or incidental effect on interstate commerce.

They also reflect a rational method for the achievement of

New Jersey’s legitimate objective, which is to establish ~~’

appropriate standards for the practice of law in New Jersey.

7 o-

Therefore, the Third Circuit’s rejection of Tolchin’s

Commerce Clause challenge was clearly correct, and need

not be reviewed or disturbed by this Court.

The Third Circuit’s analysis of the bona fide office and

course attendance requirements turns primarily on the fact

that the rules apply in exactly the same manner to in-state

attorneys as to out-of-state attorneys, and that any incidental

burden on the ability of out-of-state lawyers to participate in

New Jersey practice is minimal. Indeed, as the court noted,

the requirement that an attorney maintain an office in New

Jersey imposes an equal financial burden whether the

attorney practices primarily in or outside of the state. Stated

differently, the minimum cost of practicing law in New

Jersey, which is the cost of maintaining a bona fide office in

that state, is exactly the same regardless of whether the

attorney has offices in another state as well. Similarly,

depending on the location of the skills and methods course

sites, in-person attendance may be equally, or more,

inconvenient for a lawyer in a remote part of New Jersey

than it may be for some out-of-state lawyers.

Tolchin argues that the out-of-state lawyer suffers more

from the bona fide office requirement because he incurs an

additional expense by opening a New Jersey office, which

presumably will be in addition to the office which he has in

his home state.* The Third Circuit examined this assertion

and concluded that any incidental financial burden on out-of-

State lawyers stems from the fact that such lawyers may wish

to maintain an occasional or sporadic practice in New Jersey,

rather than from their status as out-of-state lawyers. As the

court noted, a New Jersey lawyer also may wish to maintain

2A similar argument was rejected in Scariano v. Justices of the

Supreme Court of Indiana, 38 F.3d 920, 927, n. 8 (7th Cir. 1994), cert.

denied, — U.S. --, 115 S.Ct. 2582, 132 L.Ed.2d 831 (1995) (Noting that

_ there is nothing improper with requiring a lawyer_who wants to practice in

two states to take a bar exam in each state).

9

an occasional or limited practice, or, indeed, may have other

reasons why he might not wish to incur the expense of

actually opening an office. The New Jersey lawyer is

-nevertheless required to incur this financial burden. Thus,

the bona fide office rule asks nothing of an out-of-state

lawyer that is not also required of New Jersey lawyers.

Thus, although the additional cost of maintaining ining a New

Jersey office may have an effect on the decision of an out-of.

State lawyer to maintain a small or occasional practice in

New Jersey, the rule will have the same financial effect on

a New Jersey lawyer who similarly wishes to maintain a

small or sporadic practice. As the Third Circuit concluded,

the impact of the rule on any attorney, whether resident or

non-resident, is a function of the size of the practice that the

attorney decides to maintain, rather than on the location of

methods classes in New Jersey has a negligible impact on

fide office, because the majority of out-of-state attorneys

who wish to practice in New Jersey are located in cities or

view, a group that is unable to travel to a course site in New

Jersey is likely to have inherent accessibility problems.

10

Therefore, the course attendance requirement does not place

an unreasonable burden on out-of-state lawyers.

It is clear from the foregoing that the rules in question

do not create different standards or problems for non-

resident attorneys. Because resident and non-resident

lawyers can practice law in New Jersey on an equal footing,

there is no serious issue as to the constitutionality of these

requirements that warrants review by this Court.

B. The New Jersey Supreme Court’s Bona Fide Office

Rule is Appropriately Related to the Goals of

Attorney Accessibility, Accountability, and

Competence.

Having determined that the burden created by the bona

fide office requirement is a minimal one, the Third Circuit

also correctly concluded that this burden is outweighed by

the state interest in assuring “attorney accessibility for

clients, courts, counsel and parties....” (App. 16). In

reaching this conclusion, the Third Circuit recognized that

accessibility problems had been encountered by New Jersey

and, indeed, that there is a reported decision of the New

Jersey Supreme Court on the issue. See In the Matter of

Kasson, supra, 660 A.2d at 1187. In that case, disciplinary

action was brought against a Philadelphia lawyer doing

business in New Jersey after a trial judge had encountered

difficulty locating him. An investigation revealed that the

attorney’s name was misspelled on a sign where his New

Jersey office was supposed to be located, that his letterhead

listed his office suite number differently than it was listed at

the office building itself, and that, indeed, there appeared to

be no suite or office at all. Jd. at 1188. As the New Jersey

Supreme Court noted, “(t)he frustration of a judge’s attempt

to schedule trial matters when confronted with this situation

cannot be tolerated.” Id. at 1189. Thus, the state interest

addressed by the bona fide office rule includes not only the

1]

need for lawyers to be accessible to clients, but to the bar and

judges as well.

Tolchin’s own plans with respect to New Jersey practice

suggest the inherent problems of attorney unavailability that

the rule seeks to address by requiring an in-state office.

Specifically, during oral argument before the Magistrate

Judge, Tolchin indicated that he was considering relocating

his practice to Mexico or the Netherlands, and would continue

to represent certain clients in New Jersey actions from such

a location (App.71). The difficulties caused by such a distant

practice are exactly what the bona fide office requirement is

designed to avoid. Moreover, it is worth noting that even if

not admitted to practice in New Jersey, Tolchin is not

precluded from representing such clients on a pro hac vice

basis so long as he has a local counsel to Satisfy the need for

accessibility, and meets the other requirements of such an

admission. See N.J.Ct.R. 1:21-2. The rules governing the

practice of law in New Jersey must regulate not only those

lawyers who are located close to New Jersey, but also those

whose remote location raises even more serious questions of

accessibility.

In addition to accessibility, the New Jersey Supreme

Court also believes that its bona fide office rule promotes

competence by requiring a commitment to the State which

should, in turn, ensure that attorneys are familiar with local

Custom as well as developments in local law. The rule thus

is designed to “ensure that attorneys representing New Jersey

clients in New Jersey courts are sufficiently familiar with

State law and practice to represent their clients

knowledgeably and effectively.” Matter of Kasson, supra, ~

* In fact, the rule applies not only to lawyers in a distant forum or

country, but to in-state lawyers who may otherwise desire to practice out

of the back of their car or in the hallways of the courthouse. Such a

Practice is prohibited by the rule which requires such lawyers to have a

bona fide office where they can be reached either directly or indirectly.

12

660 A.2d at 1189, quoting Ingemi v. Pelino & Lentz, 866

F.Supp. 156, 162 (D.N.J. 1994). As the lowa Supreme

Court stated in explaining the benefits of its similar, but

more demanding, rule:

The ongoing and substantial physical presence

contemplated by our office requirement insures...

that the applicant ... will.. become proficient in his

or her knowledge of Iowa statutes, case law, and

procedures. An applicant who does not intend to be

present in the Iowa office for a substantial and

scheduled period of time, servicing Iowa clients,

lacks sufficient incentive to master those matters

unique to Iowa law. Occasional forays into the

State to service out-of-state clients do not provide

this assurance. [Jn re Arthur, 415 N.W.2d 168, 170

(lowa 1987)].

The bona fide office requirement of N.J.Ct.R. 1:21-1

also provides an important tool in the establishment and

enforcement of attorney accountability. Specifically,

N.J.Ct.R. 1:21-6(b) identifies records of trust and business

accounts that must be maintained by all lawyers, including

receipts, journals and ledgers. These records are to be

“located at the principal New Jersey office of each

attorney... and shall be available for inspection, checks for

compliance with this rule and copying at that location by a

duly authorized representative of the Office of Attorney

Ethics.” N.J.Ct.R. 1:21-6. This bookkeeping requirement

is designed to “prevent improper recordkeeping by attorneys

and to avoid financial impropriety which may result

therefrom.” Notice to the Bar, issued November 22, 1978

by the Administrative Director of the Courts of New Jersey,

102 New Jersey Law Journal 1 (November 30, 1978). The

rule contemplates the use of random audits of these records

to encourage proper recordkeeping and to umcover

improprieties. /d. A bona fide office requirement thus

13

-€nsures that all lawyers will have a location within the state

where the Court knows it can find their records for audit.

New Jersey clearly has a legitimate interest in assuring

that its court officers can easily obtain access to an

attorney’s trust account and other records, without requiring

auditors to travel to another State, or to seek an exercise of

another state’s jurisdiction in order to obtain their

production. The ability to require lawyers to name the Clerk

of the Court as their agent for process and to bring

disciplinary actions does not fully address New Jersey’s

concern that it be able to exercise direct supervisory control

Over the proper handling of attorney trust accounts, nor does

it replace the ability to use spot check audits to prevent

violations. Disciplinary action following an infraction or

impropriety in the handling of a client’s trust account is no

itute for the preventive effect that a Surprise audit may

have on an attorney’s bookkeeping practices.

Indeed, because of its close relationship to the

recordkeeping requirement, the bona fide office requirement

is justified not only by the need to assure attorney

accessibility, as found by the Third Circuit, but by the need

to maintain attorney accountability as well. The

recordkeeping requirement of N.J.Ct.R. 1:21-6(b) provides

a further illustration of how the in-state Office requirement

furthers the State’s regulatory interest in the practice of law.

C. The Bona Fide Office Rule Is Consistent With Other

Decisions of This Court.

The constitutionality of the New Jersey Supreme Court’s

bona fide office requirement is also suggested by this Court’s

discussions of similar state bar requirements in other cases.

This Court has not ruled directly on whether a state court’s

bona fide office requirement, equally applicable to both

resident and non-resident attorneys, may be used to promote

attorney competence, accessibility, and accountability.

14

However, in at least one other case it has approvingly

discussed, in dicta, state bar requirements which seek to

promote similar goals by assuring that an attorney has

adequate contacts with the practice of law in that state.

This Court approvingly discussed an in-state office

requirement in the context of the review of a Virginia

residency requirement, challenged as violative of the

Privileges and Immunities clause. Supreme Court of Virginia

v. Friedman, 487 U.S. 59 (1988). Virginia’s goal in

imposing this condition, which was applicable only to out-of-

state lawyers admitted on waiver of the bar examination, was

to assure that such lawyers “will have the same commitment

to service and familiarity with Virginia law that is possessed

by applicants securing admission upon examination.” Jd. at

68. This Court invalidated the residency requirement, but

went on to consider whether Virginia could achieve its goals

through other, less restrictive means. It found that such

means existed in another provision of the same Virginia

court rule, which required that “attorneys ... admitted [on

motion] show their intention to maintain an office and a

regular practice in the state(.)” Jd. at 68. That requirement,

this Court found, was sufficient to ensure “that such

attorneys will have an interest in the practice of law in

Virginia that is at least comparable to... applicants admitted

upon examination.” Jd. at 69.‘ Thus, the Virginia rule

“ The Supreme Court of Virginia also argued that the residency

requirement “facilitates enforcement” of another requirement, contained in

the same rule, that out-of-state lawyers admitted on motion engage in the

practice of law in Virginia on a full-time basis in order to qualify for

admission. Id. at 69. The decision suggests that Virginia could also look

to its in-state office requirement “to protect whatever interest the State

might have in the full time practice restriction.” Jd. at 69-70. This full-

time practice requirement, although it applied only to out-of-state lawyers

admitted on motion, nevertheless is clearly more burdensome than a

requirement to maintain a bona fide office. This Court, however, did not

reject this full-time practice requirement, but rather took it into account as

15

discussed in Friedman involved the use of an in-state office

requirement to assure attorney familiarity with State law, as

well as to promote a more amorphous concern with assuring

a “commitment to service” Virginia. Jd. at 54.

That case is significant here because it expressly

recognizes that an attorney’s regular presence and practice in

a state may give a state the means to establish his commitment

to establishing familiarity with that state’s laws. In light of

this, the bona fide office rule is correctly viewed as an

appropriate exercise of the discretion entrusted to the states to

protect the “compelling state interest in the practice of

professions within their boundaries,” Goldfarb v. Virginia

State Bar, 421 U.S. 773, 792 (1975).

Tolchin claims that the Supreme Court of New Jersey’s

requirement is directly in conflict with the decision of this

Court in Frazier v. Heebe, 482 U.S. 641 (1987). That case

invalidated an in-state office requirement, adopted by the

United States District Court for the Eastern District of

Louisiana, which applied to non-resident lawyers only. Id.

at 646. However, Frazier is distinguishable from the matter

at hand in several significant respects. The most obvious

distinction is that the District Court rule, unlike the New

Jersey rule, expressly discriminated against out-of-state

lawyers. Id. Specifically, the Eastern District of Louisiana

required that an in-state office be maintained only by

attorneys who were not residents of Louisiana. Jd. at 646.

This reason was clearly discussed in the Court’s decision as

one of the elements that made the in-state office requirement

“unnecessary and irrational.” Jd. at 649. As the Court

noted, “a resident lawyer with an out-of-state office is

an objective that could be enforced through the use of an in-state office

requirement.

16

equally as unavailable to the court as a nonresident lawyer

with an out-of-state office.” Jd. at 646.

Other significant differences exist as well. Because the

Frazier Court was reviewing a District Court rule rather than

a State court rule, it applied a standard of review that is not

applicable here. As the opinion expressly points out, the

Court’s purpose on review was not to determine the |

compliance of the rule with basic federal constitutional |

guarantees, but rather to review its merits, pursuant to the

Court’s “inherent supervisory power to ensure that

these local rules (of the federal district courts) are consistent

with “the principles of right and justice.” Id. at 645

(citations omitted); see also 28 U.S.C. § 2071. As the

decision notes, “the court’s supervisory power over federal

courts allows the court to intervene to protect the integrity of

the federal system, while its authority over state-court bars

is limited to enforcing federal constitutional requirements.”

Id. at 647, n. 7. Thus, the concerns which prompted this

Court to undertake a full review of the merits of that rule in

Frazier are not present in the review of the constitutional

challenge brought here.

The District Court rule invalidated in Frazier also

contained other infirmities that are not present in the New

Jersey rule. Specifically, that rule mandated that an attorney

have an office in the State of Louisiana, but not necessarily

in the Eastern District. In fact, “(t)he office requirement

does not specify that counsel be in the Eastern District, but

only that the attorney have an office somewhere in the State,

regardless of how far that office is from the courthouse.”

Id. at 650. This aspect of the rule further attenuated its

effectiveness in ensuring attorney availability.

Finally, as the Frazier decision notes, rules

discriminating against non-resident attormeys are more

difficult to justify in the context of the federal courts than in

a State court system, “where laws and procedures may differ

——EE

17

substantially from State to State.” Jd. at 647, n. 7.

Consequently, it can be presumed that a federal court will

have more difficulty in showing a legitimate interest to be

protected by rules designed to limit bar admission to persons

who have particular familiarity with its rules and procedures.

Thus, Frazier’s applicability to the review of the New

Jersey Supreme Court’s rule is limited, because it did not

undertake a constitutional review of an in-state office

requirement, nor did it involve review of a rule which, like

New Jersey’s, applies equally to in-state and out-of-state

lawyers. Because of this distinction, no true conflict or

uncertainty is created by a reading of that decision as

compared with this Court’s later dicta in Friedman, or,

indeed, between the decision in Frazier and the conclusion

of the Third Circuit which Tolchin seeks to Challenge here.

While the Third Circuit did rely on Frazier to reject New

Jersey’s argument that an in-state office helps it assure

attorney competence, id. at 648, that conclusion reflects an

overly broad reading of that decision. See Frazier v. Heebe,

supra, 482 U.S. at 647, n. 7. Frazier is thus of limited

applicability here; in contrast, a review of the discussion of

Virginia’s requirements in Friedman Clearly indicates that the

New Jersey Supreme Court’s rule sets constitutionally

permissible standards for the practice of law.

When it adopted its current bona fide office requirement,

the New Jersey Supreme Court was cognizant of the need to

tailor its rules to establish appropriate standards for legal

practice while still allowing the broadest possible

participation in New Jersey practice by lawyers from other

jurisdictions. Indeed, even before this Court’s decision in

Supreme Court of New Hampshire v. Piper, supra, made

clear that a state cannot create different bar admission

requirements for qualified out-of-state lawyers, the New

Jersey Supreme Court had already taken action to change its

Own in-state office requirement, which had formerly applied

only to non-residents, by making it equally applicable to

18

New Jersey residents as well. Matter of Sackman, 90 N.J.

521, 448 A.2d 1014, 1018-19, 528-529 (1982). In so doing,

the New Jersey Supreme Court recognized that it is not in

the public interest to exclude non-resident lawyers, but that,

rather, the public is better served by efforts “to make more

qualified lawyers available to New Jersey’s citizens.” Jd. at

1019. The current bona fide office requirement thus was

adopted not, as Tolchin suggests, to exclude out-of-state

attorneys from New Jersey, but rather to place these

attorneys on the same footing as their New Jersey

counterparts, in order to achieve “the tailoring of a rule

allowing interstate movement while at the same time assuring

a sufficient degree of competence, accessibility and

accountability.” Id. at 1020. As such, it is a proper

exercise of the New Jersey Supreme Court’s discretion to

adopt requirements that protect the quality of its bar,

Goldfarb v. Virginia State Bar, supra, at 792, and does not

run afoul of the Commerce Clause.

D. The In-Person Attendance Requirement of the Skills

and Methods Course is Properly Related to the Goal

of Attorney Competence.

The rule requiring attorneys who wish to practice in

New Jersey to attend, in person, a series of lectures as part

of a “skill and methods” course, is also clearly within the

Class of state bar requirements which this Court has deemed

acceptable measures to assure that attorneys are competent

and have some knowledge of local law. This Court has, in

successive cases dealing with bar admission requirements,

approvingly discussed such continuing legal education

requirements. For example, Supreme Court of New

Hampshire v. Piper, supra, 470 U.S. at 285, n. 19, while

striking down a state residency requirement for lawyers,

Suggests that “(a) less restrictive alternative (to assuring

attorney competence and knowledge of State law) would be

to require mandatory attendance at periodic seminars on state

practice. “ A similar statement was made in the other

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19

leading case on residency requirements, Supreme Court of

Virginia v. Friedman, supra, 487 U.S. at 69, which suggests

that, as a means of “assuring that its attorneys keep abreast

of legal developments,...” a state may wish to “require

mandatory attendance at periodic continuing legal education

courses.” See also Frazier v. Heebe, supra, 482 U.S. at 648

(“other more effective means of ensuring the competence of

bar members are available to the district courts, including

examination or seminar attendance requirements.”)

Tolchin argues that the need for such a requirement, like

that for a bona fide office, has been negated by technological

advances. For example, he suggests that the state could be

required to allow an out-of-state attorney to purchase and

view video lectures as a reasonable alternative to in-person

attendance. However, mandatory attendance serves a

specific purpose. As the Third Circuit noted, it assures that

attorneys will actually hear, if not listen to, the lectures

(App. 23). In addition, while the requirement is not so

burdensome as to be umreasonable, participation does

demonstrate a level of commitment to practice in New Jersey

and learning that State’s laws and procedures, whether it be

by a New Jersey lawyer or an out-of-state lawyer. Indeed,

Tolchin’s argument appears to be that it is too troublesome

for an out-of-state attorney to travel to course sites in New

Jersey. This claim is difficult to reconcile with Tolchin’s

assertion that he is, at the same time, readily accessible to

courthouse locations in New Jersey.

Of course, the mandatory attendance requirement may be

problematic for persons located thousands of miles away

from New Jersey. However, not only can it be presumed

that these individuals comprise a very small number of the

pool of lawyers who wish to practice in New Jersey, but

they are a group with inherent problems of accessibility to

the courts. The Commerce Clause does not, as Tolchin

seems to suggest, require New Jersey to use technological

20

advances in communication to make its courts, its

supervisory personnel, or its skills and methods courses

travel electronically to practitioners in other states or remote

parts of the country. Permission to practice law in New

Jersey presumes, as a matter of logic and tradition, that the

practice will occur there. Consequently, it is respectfully

suggested that this Court should find that Tolchin’s petition

fails to present a significant question or conflict of law that

calls for an exercise of this Court’s jurisdiction.

21

CONCLUSION

For the foregoing reasons, the New Jersey Supreme

Court’s standards clearly represent an exercise of its

discretionary powers to regulate the practice of law within its

borders. Any incidental effect that the implementation of

these standards may have on interstate commerce is minimal,

and more than adequately outweighed by the purpose of

assuring attorney availability, accountability and competence.

Therefore, it is respectfully suggested that Certiorari should

be denied.

Respectfully submitted,

Peter Verniero

Attorney General of New Jersey

Attorney for State Respondents

The Supreme Court of New Jersey,

Stephen W. Townsend, The New

Jersey State Board of Bar Examiners,

and Samuel J. Uberman

By: Jeffrey J. Miller

Assistant Attorney General

Eileen P. Kelly

Deputy Attorney General