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

Supreme Court, U.S.

a EILED

(5) | Si 8 1997

~

No. 97-209 —_—

.

In The

Supreme Court of the United States

October Term, 1996

.

ROBERT J. TOLCHIN, individually and on behalf

of all others similarly situated,

Petitioner,

Vv.

THE SUPREME COURT OF THE STATE OF

NEW JERSEY, et al., .

Respondents.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

7

BRIEF AMICUS CURIAE OF THE

NEW JERSEY STATE BAR ASSOCIATION

IN SUPPORT OF RESPONDENTS

¢

CHARLES W. HEeultster*

Mark J. OBERSTAEDT

ARCHER & GREINER

A PROFESSIONAL CORPORATION

One Centennial Square

Haddonfield, NJ 08033

(609) 795-2121

Counsel for Amicus Curiae,

New Jersey State Bar Association

*Counsel of Record

October 3, 1997

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Amicus Curiae, the New Jersey State Bar Association,

adopts and incorporates the Questions Presented as set

forth by Respondents, the Supreme Court of the State of

New Jersey and the Institute for Continuing Legal Educa-

tion.

il

TABLE OF CONTENTS

Page

STATEMENT AND INTEREST OF AMICUS

CEN nos cccsvesedaneae peanenkseepesrenanenean 1

REASONS FOR DENYING THE WRIT............. 2

1. Tolchin Tacitly Concedes that the Third Circuit Prop-

erly Applied the Pike/Brown Balancing Test ....... 5

2. The Bona Fide Office Requirement is Rationally

Related to Legitimate State Interests............ 7

3. The Skills And Methods Course Requirement Is

Also Rationally Related to a Legitimate State

PROG. occ censsssandessedsanewesddamanecnnaan 18

iii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Barnard v. Thorstenn, 489 U.S. 546 (1989) ..... seees 2, 10

Brown-Forman Distillers Corp. v. New York Liquor

Authority, 476 U.S. 573 (1986)....... 3, 4, 5, 6, 11, 18

Frazier v. Heebe, 482 U.S. 641 (1987)....... 2, 7, 8, 9, 10

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) ..... 1

ee 1

Pike v. Church, 397 U.S. 137 (1970) .... 3, 4, 5, 6, 11, 18

Ross v. Moffitt, 417 U.S. 600 (1974) ................... 4

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

COGS s Cane dee aecnn cede 2, 3; 10, 18, 19

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

ES SS ee 2, 9, 10, 11, 18, 19

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

Lit Fsd 1099 (Sd Cir. 1997) ............ 3, 4 5, 7, 10

Instructional Sys., Inc. v. Computer Curriculum

Carp, co woe Gao Ge Civ. 1996) .... «2.2.55. c eee 5

State CASES

Madden v. Delran Township, 126 N.J. 591 (1992) ...15, 16

STATUTES AND RULES

ee nad p edn ds ts hud se sews . e

es a vec e an ahivseceasneees\aneaes 13

ee I on esas howe adseaciveceuceccuaves 13

BRIEF AMICUS CURIAE OF THE

NEW JERSEY STATE BAR ASSOCIATION

IN SUPPORT OF RESPONDENTS!

Amicus Curiae, the New Jersey State Bar Association

(“NJSBA”), as the primary voice of the members of the

New Jersey bar, hereby requests that the petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Third Circuit sought by

Petitioner, Robert J. Tolchin (“Petitioner” or “Tolchin”),

be denied.

STATEMENT AND INTEREST OF AMICUS CURIAE

Petitioner challenges the authority of the New Jersey

Supreme Court to determine the requirements it will

impose on those seeking to practice law within its juris-

diction. This Court has traditionally recognized the

autonomy of the states to set the qualifications for per-

sons who wish to practice law in that state. See, e.g., Leis

v. Flynt, 439 U.S. 438, 442, 444 n.5 (1978) (recognizing “the

traditional authority of state courts to control who may

be admitted to practice” and noting that “[s]ince the

founding of the Republic, the licensing and regulation of

lawyers has been left exclusively to the States”); Goldfarb

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

that states have “broad power to establish standai 's for

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.

licensing practitioners and regulating the practice of pro-

fessionals”).

Over the past two decades, many lawyers have peti-

tioned this Court for writs of certiorari charging that

various state laws, rules and regulations governing the

practice of law are unconstitutional. Only twice during

that time has this Court granted writs to review such

challenges. See Supreme Court of Virginia v. Friedman, 487

U.S. 59 (1988); Supreme Court of New Hampshire v. Piper, |

470 U.S. 274 (1985). On two other occasions, this Court |

has granted writs of certiorari to review the local rules of

two United States District Courts that placed certain

requirements on those that sought to practice law within

their respective jurisdictions. See Barnard v. Thorstenn, 489

U.S. 546 (1989); Frazier v. Heebe, 482 U.S. 641 (1987).

In each of these rare cases, the rule or regulation at

issue facially discriminated against out-of-state residents

in favor of in-state residents. See Barnard, 489 U.S. at 549

(local rule of the United States District Court for the |

District of the Virgin Islands required all attorneys other-

wise qualified to demonstrate that he or she had “resided

in the Virgin Islands for at least one year preceding his or

her proposed bar admission” and had an intention to

continue residing in the Virgin Islands and to practice law

there); Friedman, 487 U.S. at 61 (Virginia rule allowed

“qualified lawyers admitted to practice in other States” to

be admitted to the Virginia Bar on motion upon a show-

ing that the applicant was “a permanent resident of Vir-

ginia”); Frazier, 482 U.S. at 642 (local rule of the United

States District Court for the Eastern District of Louisiana

a

required bar applicants to either live in Louisiana or

maintain an office in Louisiana); Piper, 470 U.S. at 277 n.1

(New Hampshire rule required all bar applicants to

“either be a resident of New Hampshire or file a state-

ment of intent to reside there” and to be a “bona fide

resident of the State . . . at the time the oath of office . . . is

administered”). Accordingly, this Court reviewed the

challenged rules under either the Privileges and Immu-

nities Clause of Article IV, § 2 of the United States Consti-

tution, or under its own “inherent supervisory power”

over the United States District Courts.

Unlike the rules reviewed by the Court in each of

these previous cases, the rule challenged here, N.J. Cr. R.

1:21-1(a) (the “Rule”), applies equally to all New Jersey

lawyers regardless of domicile and it does not facially

discriminate against non-residents. Tolchin v. Supreme

Court of the State of New Jersey, 111 F.3d 1099, 1107 (3d Cir.

1997). Presumably realizing that a Privileges and Immu-

nities Clause challenge would necessarily fail, Tolchin

petitions this Court to review the constitutionality of the

Rule solely under the Dormant Commerce Clause of Arti-

cle I, § 8, clause 3.

In an opinion written by Judge Lewis, joined in full

by Judge Cowen, and joined in part by Chief Judge

Sloviter, the Third Circuit Court of Appeals properly

rejected Petitioner’s Dormant Commerce Clause chal-

lenge and upheld the constitutionality of the Rule.

Tolchin, 111 F.3d at 1107. The Third Circuit did so by

applying the balancing test announced by this Court in

Pike v. Church, 397 U.S. 137. (1970), and refined in Brown-

Forman Distillers Corp. v. New York Liquor Authority, 476

U.S. 573 (1986) (hereinafter the “Pike/Brown balancing

test”). Tolchin, 111 F.3d at 1107.

Notably, Petitioner does not seriously contend that

the Third Circuit should have applied a level of scrutiny

other than the Pike/Brown balancing test. Instead,

Tolchin’s primary argument is that the Third Circuit

reached the wrong result under the test. This Court typ-

ically declines to grant writs of certiorari when the peti-

tioner is simply unhappy with the result reached below.

See Ross v. Moffitt, 417 U.S. 600, 616-17 (1974) (certiorari is

not appropriate when the petitioner seeks to challenge

only the correctness of the lower court’s decision); see also

Rosert L. STERN, ET. AL., SUPREME Court Practice § 4.17 (7th

ed. 1993) (“It has been reiterated many times that the

Supreme Court is not primarily concerned with the cor-

rection of errors in lower court decisions.”).

Even if this were one of the rare cases in which the

Court would consider examining the correctness of the

result reached by the Third Circuit, Judge Lewis’s anal-

ysis rests on solid grounds that would not justify further

review by this Court. As the Third Circuit concluded, the

Rule is rationally related to the legitimate state interests

advanced below by the New Jersey Supreme Court and

the Institute for Continuing Legal Education. In addition,

the Rule is also rationally related to the additional legiti-

mate state interests advanced herein by the NJSBA as

amicus curiae. Accordingly, this Court should not grant

Tolchin’s petition for a writ of certiorari.

¢

REASONS FOR DENYING THE WRIT

The Rule establishes four requirements that all attor-

neys wishing to practice law in New Jersey must meet.

Specifically, all New Jersey attorneys must (1) hold a

plenary license, (2) comply with the skills and methods

course requirements in effect on the date of the attorney’s

admission to the bar, (3) be in good standing, and (4)

maintain a bona fide office for the practice of law in New

Jersey. N.J. Cr. R. 1:21-1(a). The four requirements apply

to all lawyers, regardless of where they are domiciled.?

Tolchin contends here, as he did below, that the bona

fide office requirement and the skills and methods course

requirement are unconstitutional under the Dormant

Commerce Clause.

1. Tolchin Tacitly Concedes that the Third Circuit

Properly Applied the Pike/Brown Balancing Test

The Third Circuit rejected Tolchin’s Dormant Com-

merce Clause challenge by applying the Pike/Brown bal-

ancing test. Tolchin, 111 F.3d at 1108-11. Under the Pike/

Brown balancing test, a court “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. at 1108

(citing Instructional Sys., Inc. v. Computer Curriculum Corp.,

35 F.3d 813, 824 (3d Cir. 1994)). If the Court concludes, as

the Third Circuit did below, that the challenged rule

2 The history of N.J. Cr. R. 1:21-1(a) is set out in detail in the

Third Circuit’s opinion and need not be repeated here. See

Tolchin, 111 F.3d at 1103-05.

“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.’ ” Id. at 1107 (quoting Brown-Forman, 476 U.S. at

579).

Tolchin does not seriously contend that the Third

Circuit should have reviewed the Rule under any stan-

dard other than the Pike/Brown balancing test, such as the

heightened scrutiny applicable when a state law facially

or effectively discriminates against out-of-state interests.

See Brown-Forman, 476 U.S. at 579.5 Likewise, while

Tolchin contends that “thousands” of lawyers and law

firms are impacted by the Rule, Petition at 24, he does not

contend that the Third Circuit wrongly concluded that

the Rule only has an indirect effect upon interstate com-

merce.

Therefore, Tolchin tacitly concedes, as he must, that

the Third Circuit properly invoked the Pike/Brown balanc-

ing test and that, because the Rule’s impact on interstate

commerce is only indirect, the Rule will withstand a

Dormant Commerce Clause challenge so long as it is

rationally related to a legitimate state interest. As demon-

strated below, the Third Circuit’s conclusion that the

bona fide office requirement and the skills and methods

course requirement are rationally related to legitimate

state interests was wholly proper.

3 Tolchin renders lip service to the heightened scrutiny

standard in only a single sentence. Petition at 20.

2. The Bona Fide Office Requirement is Rationally

Related to Legitimate State Interests

Before both the district court and the Third Circuit,

Respondent, the Supreme Court of the State of New

Jersey, explained that the bona fide office requirement

“has the benefits of assuring the competence, accoun-

tability and accessibility of attorneys for the benefit of

clients, courts, counsel and parties.” Tolchin, 111 F.3d at

1108. After analyzing this aspect of the Rule, the Third

Circuit concluded that “a rational relationship exists

between the benefit of attorney accessibility and the bona

fide office requirement.” Id. at 1109.

In his petition, Tolchin does not argue that the Third

Circuit wrongly concluded that New Jersey has a legiti-

mate interest in ensuring the accessibility of New Jersey

attorneys to courts, clients, counsel, and parties. Instead,

he contends that the bona fide office requirement is not

rationally related to this legitimate state interest. The

principal argument he advances in support of this con-

tention is that this Court allegedly dismissed a similar

argument in Frazier v. Heebe, 482 U.S. 641 (1987), and,

therefore, the Third Circuit’s decision “directly contra-

dicts” the holding in Frazier. Petition at 20-22. Tolchin is

mistaken.

First, the facts in Frazier are quite different from those

presented here. In Frazier, the Court reviewed a local rule

of the United States District Court for the Eastern District

of Louisiana that required lawyers seeking to be admitted

to the district court bar to either be a resident of Louisi-

ana or to maintain a law office in Louisiana. The local

rule did not require Louisiana residents to maintain a

Louisiana office. Frazier, 482 U.S. at 642. Therefore, the

local rule facially discriminated against non-residents.

Here, the Rule neither contains a residency requirement

nor facially discriminates against non-residents.

Second, the Frazier majority did not review the con-

stitutionality of the challenged local rule. Instead, the

majority reviewed the local rule solely under the Court's

“inherent supervisory power” to ensure the fairness of

the local rules of the various United States District

Courts. Id. at 645 (quoting In re Ruffalo, 390 U.S. 544, 554

(1968) (White, J., concurring)). The distinction was partic-

ularly important to the Frazier majority, which explained

that the Court’s authority over the federal courts was

broader than its power over the individual state courts.

Specifically, the Frazier majority noted that the Court's

“authority over state court bars is limited to enforcing

federal constitutional requirements.” Id. at 647-48 n.7. The

Frazier majority also observed that a more lenient stan-

dard was appropriate when reviewing state rules seeking

to regulate the practice of law because “laws and pro-

cedures may differ substantially from state to state.” Id.

(citations omitted).

The three dissenting Justices in Frazier, Chief Justice

Rehnquist, joined by Justices O’Connor and Scalia, did

not agree with the majority’s view that the Court pos-

sessed the “inherent supervisory power” to set aside local

district court rules regulating admission to their respec-

tive bars. Id. at 651-52 (Rehnquist, C.J., dissenting). There-

fore, the dissenting Justices reviewed the constitutionality

of the mandatory office requirement and concluded that

the rule passed constitutional muster. Id. at 655 (Rehnqu-

ist, C.J., dissenting).

Thus, the only three members of the Court to review

the constitutionality of the mandatory office requirement

in Frazier found that the requirement was constitutionally

acceptable even though it facially discriminated against

non-residents. Accordingly, Tolchin’s contention that the

Third Circuit’s decision below “directly contradicts” this

Court’s ruling in Frazier is mistaken.

A subsequent decision of this Court further demon-

strates that Tolchin has misread Frazier. Just one year

after the Frazier decision was announced, this Court

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

(1988). In Friedman, a Virginia state court rule allowed

“qualified lawyers admitted to practice in other States” to

be admitted to the Virginia Bar on motion upon a show-

ing that the applicant was “a permanent resident of Vir-

ginia.” Friedman, 487 U.S. at 61. Virginia contended,

among other things, that the residency requirement

advanced the state’s interest in ensuring compliance with

a separate requirement that members of the bar practice

law “full-time” in Virginia. Id. at 63.

The majority of the Friedman Court, in an opinion

authored by Justice Kennedy and joined by Justices Bren-

nan, White, Marshall, Blackmun, Stevens, and O’Connor,

held that the residency requirement was unconstitutional

under the Privileges and Immunities Clause. Id. at 64-65.

The majority dismissed Virginia’s argument that the resi-

dency requirement ersured that attorneys complied with

the full-time practice requirement by explaining in dicta

that Virginia’s mandatory office requirement was a “less-

10

restrictive” alternate means of advancing Virginia’s inter-

est in requiring lawyers to practice law full-time in Vir-

ginia. Id. at 69-70.4

Thus, between the dissenting opinion in Frazier and

the majority opinion in Friedman, all of the Justices sitting

on this Court during the 1987 and 1988 terms either wrote

or joined in opinions supporting mandatory office

requirements. Accordingly, Tolchin’s contention that this

Court has condemned such provisions is wholly mis-

taken.

If the Third Circuit’s opinion in the present case is

flawed in any respect, it is in the conclusion of two of the

panel’s three judges that the bona fide office requirement

is not also rationally related to New Jersey’s legitimate

interest in securing the competency and accountability of

those lawyers who practice law in New Jersey.5

The Third Circuit rejected the competency argument

by relying solely on this Court’s opinions in Frazier, Piper

and Barnard. Tolchin, 111 F.3d at 1108-09 (citations omit-

ted). Each of those cases, however, was decided under

either the Privileges and Immunities Clause or this

Court’s inherent supervisory power over the district j

courts, and in each of those cases the Court reviewed the |

challenged rules under heightened scrutiny because the |

4 In dissent, Chief Justice Rehnquist and Justice Scalia

determined that the facially-discriminatory residency

requirement — a much more egregious imposition on interstate

commerce than that alleged here — passed constitutional muster.

Friedman, 487 U.S. at 70-71.

5 Chief Judge Sloviter did not join in this aspect of the

opinion. Tolchin, 111 F.3d at 1109 n.3.

isietiinaein

11

rules facially discriminated against non-residents. Under

the heightened scrutiny analysis applicable in those

cases, the Court had to determine if there were less-

restrictive means of meeting the proposed state interests.

The same standard does not apply here. Under the

Pike/Brown test, the state interest need only be rationally

related to the challenged rule. Moreover, the challenged

rule does not have to be the least-restrictive means of

achieving the legitimate state interest.

The bona fide office rule is rationally related to New

Jersey’s legitimate interest in ensuring the competency of

lawyers who practice in New Jersey. The Third Circuit

noted that the group of persons affected by the bona fide

office requirement was not “a very large class” and

included “those who practice solely, but sporadically, in

New Jersey,” and “those who practice occasionally in

New Jersey as part of a large practice based in another

state.” Id. at 1109. Tolchin does not challenge thése find-

ings in his petition.

It is undisputed, therefore, that a large percentage of

the persons who wish to practice law in New Jersey

without a bona fide office dedicate only a small fraction

of their respective law practices to New Jersey matters. It

© Notably, the Freidman majority did not dismiss Virginia’s

argument that a mandatory office requirement would help

ensure that those who practiced in Virginia’s state courts kept

“abreast of legal developments. . . . ” Friedman, 487 U.S. at 69.

Instead, the majority simply noted that there were less-

restrictive means of achieving the same result, such as

mandatory attendance at periodic continuing legal education

courses. Friedman, 487 U.S. at 69.

12

is reasonable to assume that most of these attorneys,

therefore, do not keep themselves regularly apprised of

recent developments in New Jersey law. It is also reason-

able to assume that those attorneys who maintain a bona

fide office in New Jersey are more inclined to keep

abreast of the latest changes in New Jersey’s procedural

and substantive law. One can also reasonably assume that

those attorneys who stay current on the most recent

developments are in a better position to serve the courts

and their clients than those who do not. Accordingly, the

bona fide office requirement bears a rational relationship

to New Jersey’s legitimate interest in ensuring the compe-

tency of those that practice law in New Jersey.”

The Third Circuit also should have concluded that

the Rule is rationally related to New Jersey’s legitimate

interest in ensuring the accountability of New Jersey

lawyers. The Third Circuit dismissed this argument solely

on the grounds that “all non-resident attorneys designate

the Clerk of the New Jersey Supreme Court as agent for

receipt of service of process.” Id. Therefore, the Third

Circuit reasoned that “[t]he New Jersey Supreme Court

can . . . discipline all members of the New Jersey bar,

regardless of residency,” and held that the Appellees had

made “no compelling argument as to how the bona fide

office requirement was rationally related to attorney

accountability.” Id. (citing N.J. Cr. R. 1:21-1(a) (1996)).

Accountability of attorneys is not limited, however,

solely to judicial discipline. Clients can, and often do,

7 The skills and methods requirement does not cover the

same ground. The skills and methods requirement deals with

basic skills rather than recent developments in practice areas.

13

pursue legal malpractice claims against their attorneys.

The following example demonstrates how the bona fide

office requirement advances and, therefore, is rationally

related to New Jersey’s legitimate interest in ensuring

that New Jersey lawyers are accountable to their clients.

An Albany, New York attorney accepts the represen-

tation of a New Jersey client in a New Jersey state court

matter. The attorney commits malpractice by, among

other things, failing to appear at the trial call and causing

his client’s complaint to be dismissed. The attorney con-

tends that he or she never received notice of the trial

date.

The client files a legal malpractice claim against the

attorney in the New Jersey state courts. During discovery,

the client wishes to depose the attorney’s secretary.

Because the secretary resides near the attorney’s office in

Albany, a significant burden is placed on the client. First,

she must file a motion for a commission to take an out-of-

state deposition under N.J. Cr. R. 4:12-2. Assuming that

motion is granted, she must then pay for her and her

attorney to travel to, and possibly stay overnight, in

Albany where the deposition must be conducted under

N.J. Cr. R. 4:14-2(a). If the deposition of the secretary

reveals that other members of the attorney’s office staff

may have had responsibility for keeping track of trial call

notices, the process has to start all over again. The defen-

dant lawyer could also insist that all inspections of his

documents be conducted at his Albany office under NJ.

Cr. R. 4:18-1. Thus, an additional trip to Albany would be

required. In many cases, these added costs would make

discovery too costly for clients.

14

Trial of such a case would also be more difficult. The

client could not compel anyone other than the defendant

to appear at trial and, therefore, the client would be

forced to read into the record the deposition transcripts

of the witnesses that live outside the court’s subpoena

power (assuming the client could afford to take the depo-

sitions in the first place). This would diminish the trier of

fact’s opportunity to examine the demeanor and cred-

ibility of the witnesses. These added costs and difficulties

would have the reciprocal effect of making attorneys less

accountable for their malpractice.

The bona fide office requirement, however, elimi-

nates these problems. The attorney and the attorney’s

staff could be served with subpoenas and deposed in

New Jersey. The document inspections would take place

in New Jersey. The witnesses could be subpoenaed to

appear at trial in New Jersey. Accordingly, the attorney is

more likely to be held accountable for his or her malprac-

tice. Under this example, it is easy to see how the bona

fide office requirement is rationally related to the state’s

legitimate interest in assuring attorney accountability.

In addition to the three legitimate interests advanced

below by the New Jersey Supreme Court, the bona fide

office requirement also advances the state’s legitimate

interest in encouraging New Jersey attorneys to become

involved in community activities and to voluntarily pro-

vide pro bono services to the New Jersey communities

where their offices are located.

New Jersey is the only state in the nation to compel

mandatory pro bono representation by the members of its

bar. Melissa Tennen, Municipal Pro Bono: Going, Going ...,

15

N.J. Lawyer, Sept. 22, 1997, at 1, 19. In Madden v. Delran

Township, 126 N.J. 591 (1992), the New Jersey Supreme

Court ruled, contrary to decisions in many other states,

that the state could constitutionally compel attorneys

admitted to the New Jersey bar to represent indigent

defendants in the municipal courts without compensa-

tion. Madden, 126 N.J. at 600-11. Notably, the procedure

set forth by the New Jersey Supreme Court in Madden

provided that these mandatory pro bono assignments be

parceled out by the assignment judge in each county to

those lawyers who maintained their law offices in that

county. This process ensured that lawyers in one part of

the state would not be requested to handle pro bono cases

at the opposite end of the state. Id. at 606-07.

Since 1993, the NJSBA’s Special Committee on Pro

Bono Services (the “Special Committee”) has reviewed

the mandatory pro bono system in New Jersey. Among its

many tasks, the Special Committee surveyed the state’s

county bar associations and found that the mandatory

pro bono assignments authorized in Madden had

“expanded far beyond municipal court assignments to

superior court assignments in civil cases involving termi-

nation of parental rights, domestic violence contempt,

juveniles and other family court matters, and municipal

court appeals.” Mary Coogan, The 1995 Report of the

NJSBA Special Committee on Pro Bono Services, N.J. Lawyer

~- THE Macazing, July/Aug. 1997, at 12.

The Special Committee found that “these mandatory

pro bono assignments have resulted in a heavy and dispa-

rate burden on the private bar, leading to the committee's

objection to the arbitrary expansion of Madden and the

16

recommendation of a statewide uniform policy identify-

ing case-types that may be assigned pro bono.” Id. at 12.

Moreover, the Special Committee found that “the expan-

sion of mandatory pro bono assignments dilutes the avail-

ability of private attorneys to provide true, voluntary pro

bono service for civil matters.” Id.®

According to a recent survey, approximately 3000

mandatory pro bono cases are assigned annually to mem-

bers of the New Jersey bar in addition to the mandatory

pro bono municipal court assignments ordered in Mad-

den. Tennen, Municipal Pro Bono at 1.

The New Jersey Law Journal annually surveys large

New Jersey law firms to gauge the number of pro bono

hours logged by attorneys at the firm. The 1997 survey

noted that the state’s 20 largest law firms contributed

approximately 50,000 hours of pro bono services in 1996.

Matt Ackerman, Erin McIntyre, & Neal Winters, Pro Bono

Efforts Ebbing Statewide, N.J. Law Journat, June 30, 1997,

at 148. When added to the efforts of New Jersey’s many

solo practitioners and smaller law firms, along with the

many bar association programs that coordinate the pro

bono efforts of New Jersey lawyers, the number of volun-

teer hours provided by the New Jersey bar is staggering.

8 On September 24, 1997, New Jersey Governor Christine

Todd Whitman signed into law bill S-1886, which mandates that

every municipality in the state have a public defender within six

months. This new law will eliminate mandatory municipal court

pro bono representation by members of the New Jersey bar, but

net the expanded mandatory pro bono assignments annually

distributed to members of the New Jersey bar in the state’s

Superior Court. Tennen, Municipal Pro Bono at 1.

17

See, e.g., Mary Coogan, Pro Bono Attorneys: A Sampler, N.].

Lawyer — THE Macazine, July/Aug. 1997, at 22-27.

Despite the extraordinary volunteer efforts of the

members of the New Jersey bar, the Special Committee’s

1995 report acknowledged that there was still a greater

need for voluntary pro bono services in New Jersey.

Coogan, Pro Bono Attorneys: A Sampler at 22. Clearly,

under these circumstances, the State of New Jersey has a

legitimate interest in encouraging New Jersey attorneys

to volunteer for pro bono and other worthy community

causes.

It is reasonable to assume that attorneys that main-

tain a bona fide office in New Jersey are more likely than

those who do not to perform voluntary pro bono and to

provide other needed services to the communities where

their offices are located. For example, an attorney who

maintains his or her only office in Albany, New York, and

who only practices sporadically in New Jersey, will rarely,

if ever, take on a pro bono assignment in New Jersey. On

the other hand, a lawyer that maintains a bona fide office

in New Jersey will be more inclined to join the local bar

association, become involved in pro bono and charitable

organizations, and otherwise volunteer his or her services

to those in the community where the lawyer’s office is

located.? Therefore, the bona fide office requirement is

° Moreover, if the bona fide office requirement is struck

down as unconstitutional, the New Jersey Supreme Court will

be forced to restructure its mandatory pro bono distribution

system. Assignment judges will no longer be able to assign

matters just to those lawyers who maintain an office within their

county. Members of the New Jersey bar might then be required

18

rationally related to the state’s legitimate interest in

encouraging voluntary pro bono participation by New

Jersey attorneys.!°

3. The Skills And Methods Course Requirement Is

Also Rationally Related to a Legitimate State Inter-

est

Petitioner Tolchin argues that the skills and methods

course requirement imposes an unconstitutional burden

upon non-resident New Jersey lawyers. Specifically, he

contends that there is no reason why he and other non-

residents should be forced to attend the skills and

methods class at one of the four locations in New Jersey

where the course is offered. Petition at 13.

It is undisputed that New Jersey has a legitimate

interest in ensuring the competency of those who practice

to take on pro bono assignments in counties where they

otherwise would not ordinarily practice and which may impose

a more significant burden than pro bono representation would

otherwise.

10 The NJSBA recognizes that a majority of this Court

rejected a somewhat similar argument in both Piper and

Friedman. In each of those cases, however, the legitimate interest

in encouraging pro bono service was judged against the

heightened scrutiny standard of the Privileges and Immunities

Clause and, accordingly, the majority in both cases found that

the residency requirements at issue were not the least-restrictive

means of meeting the states’ interest. Here, as explained above,

the Court need not consider whether there exists a less-

restrictive means of achieving the desired result under the Pike/

Brown balancing test. Instead, the bona fide office requirement

must only be rationally related to the state’s legitimate interest

in encouraging voluntary pro bono service.

19

law in New Jersey!! and that the skills and methods

requirement applies to all newly-admitted attorneys

regardless of where they are domiciled. It is also undis-

puted that the skills and methods course is designed to

teach basic skills usually not taught in law school that

new lawyers must have to effectively practice law in New

Jersey. On three previous occasions, this Court has

extolled the virtues of mandatory continuing legal educa-

tion requirements. See Piper, 470 U.S. at 285 n.19; Fried-

man, 487 U.S. at 69; Frazier, 482 U.S. at 648.

Tolchin’s sole objection to the skills and methods

course requirement is that he must attend the courses at

one of the four course sites located in New Jersey. Of

course, he concedes that Newark, New Jersey, one of the

four location sites, is readily accessible to him. Petition at

6. In fact, the only example he can offer of any impact

that the skills and methods requirement may have on

interstate commerce is his proposed hypothetical situa-

tion in which a newly-graduated lawyer accepts a judicial

clerkship in Louisiana and wants to return to New Jersey

to practice law after the clerkship ends. Tolchin argues

that the skills and methods requirement would bar that

person from the practice of law. Petition at 13-14. In that

very rare instance, however, can there be any serious

question that the attorney would be allowed to begin the

skills and methods course upon his or her return to the

1 Notably, the New York state courts, Tolchin’s home state,

have just announced a requirement that all newly-admitted

attorneys must complete 32 hours of approved CLE courses

over two years.

20

area? The mere statement of this question rebuts the

unreasonableness of such an interpretation.

As the Third Circuit rightfully noted, the burden of

traveling to the course location applies to all attorneys,

regardless of where they reside. As the Third Circuit

further explained, the burden in many cases is greater on

New Jersey residents than upon non-residents, such as

Tolchin, who can easily commute to the course location.

Accordingly, there is no unconstitutional burden on non-

residents to attend the skills and methods classes offered

in New Jersey as a condition of their eligibility to practice

law in New Jersey.

e-

CONCLUSION

For the foregoing reasons, amicus curiae, the New

Jersey State Bar Association, respectfully requests that the

Court deny the petition for a writ of certiorari.

Respectfully submitted,

CHarces W. HEviIsLer*

Mark J. OBERSTAEDT

ARCHER & GREINER,

A Professional Corporation

One Centennial Square

Haddonfield, NJ 08033

(609) 795-2121

Counsel for Amicus Curiae,

New Jersey State Bar Association

*Counsel of Record

Octover 3, 1997