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

MOTION FILED

OCT - 6 1997 sealed

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

No. 97-209

ROBERT J. TOLCHIN,

individually and on behalf of all others similarly situated,

Petitioner,

v.

THE SUPREME COURT OF NEW JERSEY, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF MICHAEL S. FETTNER, ESQUIRE,

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Cletus P. Lyman*

Michael S. Fettner

LYMAN & ASH

1612 Latimer Street

Philadelphia, PA 19103

(215) 732-7040

Amicus Curiae

* Counsel of Record

MOTION OF MICHAEL S. FETTNER, ESQUIRE,

FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

Amicus curiae, Michael S. Fettner, Esquire’, hereby

moves, pursuant to Rule 37.4, Supreme Court Rules, for

leave to file the accompanying brief in support of

petitioner’s challenge to New Jersey’s bona fide office

rule, R. 1:21-1(a), petitioner’s questions one and two.

Amicus has no interest in petitioner’s question three,

relating to New Jersey’s skills and methods courses.

Petitioner and Supreme Court of New Jersey

defendants have given their consent to amicus to file a

brief in support of petitioner; ICLE defendants have not

responded to amicus’s request for consent.

Amicus has set forth his statement of interest in

support of petitioner in his accompanying brief.

Cr SZ.

Cletus P. Lyman

Counsel of Record

th Ree

Michael S. Fettner

Amicus Curiae

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

in part. No person or entity, other than amicus, made a

monetary contribution to the preparation and submission of this

motion and brief.

Questions Presented

1. Does the Supreme Court of New Jersey rule

requiring lawyers to maintain a bona fide office within the

state in order to practice law violate the Commerce Clause

of the U.S. Constitution?

2. Does the Supreme Court of New Jersey rule

requiring lawyers to maintain a bona fide office within the

state in order to practice law violate the Privileges &

Immunities Clause of the U.S. Constitution?

Table of Contents

Questions Presemted. ................cscccccecceccescccsceecseesees i

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Statement of Interest Ec inkaaidiwisetecesanssnecessees 4

PMIITIE,. 0.0......ccnssescccceccccvccccccccscccscccssssesscccccoeees 9

1. The New Jersey bona fide office

requirement violates the Commerce Clause of the

ET AE Ee 9

2. The New Jersey bona fide office requirement

violates the Privileges and Immunities Clause of

I, on cnccsnecheesicctecccsosccceess ic

Nee eg i cawanwennsececceees 19

Appendix A: Reproduced transcript.

Certificate of Service

Table of Authorities

Cases:

Austin v. New shi

420 U.S. 656, 95 S. Ct. RE CO iin cisvnanonnconce 16

Barnard v. Thorstenn,

489 U.S. 546, 109 S.Ct. 1294 (1989).................. 16

Camps Newfound/Owatonna v. Town of Harrison, ME,

519 U.S. , 117 S.Ct. 1590 (1997)..............00. 11

482 U.S. 641, 107 S.Ct. 2607 (1987)..............0008. 16

Fult m3 a |

$17 U.S. __., 116 S.Cr. S48 (1998)............0.... 9,10

Halli il W = i

373 U.S. 64, 83 S. Ct. 1201 (1963) ad eee 11

re on,

141 N.J. 83, 660 A.2d 1187 (1995)..............00. 4,16

In re Sackman,

90 N.J. 521, 48 A.2d 1014 (1982)...............005. 4,14

Lewis v. BT Inv. Man. Inc.,

447 U.S. 27, 100 S.Ct. 2009 (1980).................... 10

Matter of Schutzman,

145 N.J. 568, 679 A.2d 151 (1996)...................... 4

iii

uu

144 NJ. 165, 675 A.2d 1117 (1996)......0c0cceceeee 4

143 NJ. 308, 670 A.2d 1053 (1996)......0.0c0c000e0- 4

Reno v. ACLU, 519 U.S. __, 117 S.Ct. 2329 (1997)....2

ae ;

394 U.S. 618, 89 S.Ct. 1322 (1969)...........:eceee eens 7

Ww ire v. Piper,

470 U.S. 274, 105 S.Ct. 1272 (1985)............0e08 16

Viesinie v,

487 U.S. 59, 108 S.Ct. 2260 (1988)..............0200e 16

Tolchin v. Supreme Court of New Jersey,

111 F.3d 1099 (3d Cir. 1997)............c2ceeeeee eee 5,11

Toomer v. Witsell,

334 U.S. 385, 68 S.Ct. 1156 (1948)...............020e 15

West Lynn Creamery, Inc. v. Healy,

512 U.S. 186, 114 S.Ct. 2205 (1994)..............060 10

U.S. Constitution:

Articte I, § &, classe 3............ccrceccccccccescvcccscccscceess 4

Astiete TY, 6... .ccccssccoscccsscccsscccscccscoccscsessesccevcess 15

iv

New Jersey Constitution:

Ra Wa; Bs eed aa etaihcasnanes 2

Rules and Statutes:

New Jersey Rule of Court 1:21-1(a)...................... 1,7,8

PETBA. TF: T Bcc nienntietemninaisbacamiianigtanws 13

MISA. F7-T a +smaniiaananninsetend 14

OIG. Fai hg OE Gis isnndetaataentinriwiindones 13

NIDA. TEBIADS, «oscincnseneminaiaanmn naaaenaeiahans 13

PES.BB. BEBSID. «:concnsirsianinaiistimemamemimiamai at Deine 13

.I.D.R. FRSA Ea consnsenhunsnnainaaiaatipiii ambien 13

Other Authorities:

Abel, American Lawyers (1989)...........ccccceceeeseeeeeeeees 4

Braudel, The Wheels of Commerce (1982)................006 2

Encyclopedia of the American Constitution, Vol. IV,

"SAEs COR" CIR icicdacennisssdeindaminatieiaccses 19

Federal Register, Vol. 55, No. 62, Friday, March 30,

1990, Part VI, OMB, Revised Standards for Defining

Metropolitan Areas in the 1990's; Notice.........0..0s0000 12

143 New Jersey Law Journal 768 (Feb. 26, 1996).......... 3

New Jersey Lawyer, June 26, 1996.........:::0:sssseeeeeeeees 3

Smith, Time for a National Practice of Law Act,

64 A.B.A.J. 557 (1978)........:eeceeeeeeeeeeeeeeeeeeneeees 4

Statistical Abstract of the U.S., 1995, U.S. Department of

Commerce, Bureau of Census, issued September 1995...12

Sullivan, Moving Day Involves More than Furniture,

45 MANAGE, April 1994............::eeeeeeeeeereeereeeeeees 12

The Legal Intelligencer, August 5, SE cvvdsckcnsesuvcssevie 3

The Philadelphia Inquirer, May 26, Pibkidasccsccensnees 14

Tribe, American Constitutional Law, § 6-12,

(2d Ed. 1988)..........ccsecseceeeceeceeeeseeeeeeereeene ees 10

Treaty on European Union (Maastricht), 7 February 1992,

Title I, Article B.............ccccscsesceeececerersecsveceeeneoeees 2

vi

BRIEF OF MICHAEL S. FETTNER, ESQUIRE,

AS AMI N PORT OF PETITIONER

Michael S. Fettner, Esquire, hereby submits his brief

as amicus curiae in support of petitioner’s challenge to the

Supreme Court of New Jersey rule requiring lawyers to

maintain a bona fide office within the state in order to

practice law, R. 1:21-1(a).’

Introduction

On the eve of the 21st century, as 15 European

nations forge economic and social union, and as the world

becomes a "global village" through worldwide

communication in "cyberspace," the New Jersey Supreme

Court (and members of its bar), construing as broadly as

possible its constitutional grant of jurisdiction over the

admission to the practice of law, and overlooking New

Jersey legislative policies favoring cooperation with

Pennsylvania and New York dating back at least to 1783,

wishes to regress to the social and economic policies of the

Middle Ages, when European craft guilds "enjoyed

contiguous monopolies" and "controlled the bulk of trade,

labour and production" in European towns.’

2amicus limits his brief to support Mr. Tolchin’s challenge

to the bona fide office requirement only. Amicus has no interest

in petitioner’s question three, regarding New Jersey's skills and

methods classes.

3See respectively: Treaty on European Union, signed at

Maastricht, Netherlands, 7 February 1992, Title I, Article B (a

Union objective is "the strengthening of economic and social

cohesion"); Reno v. ACLU, 519 U.S. __, 117 S.Ct. 2329,

2334 (1997), affirming ACLU v. Reno, 929 F.Supp. 824

(E.D.Pa. 1996) (describing the character and dimension of the

Internet as "a unique medium with content as diverse as human

This Court should grant certiorari to decide this

important case under the Commerce Clause and Privileges

& Immunities Clause, involving regulation of lawyers in

the context of evolving multi-state and multi-national

practice, along the rapidly expanding information

superhighway. New Jersey lawyers and judges have

adopted a rule designed to limit access of lawyers to New

Jersey. The rule is beyond the reach of the democratic

process, in the most densely populated and largest

economic region in the nation.

Upon the 1996 amendment of the bona fide office

rule, Cynthia M. Jacob, Esquire, then president of the

New Jersey State Bar Association, was quoted as saying:*

. the bona fide office requirement ought to be

"strengthened rather than weakened’ in the face of an

*invasion’ by Philadelphia and New York lawyers."

thought . . . available to anyone anywhere in the world with

Internet access"); N.J. Constitution, Article V1, § 2, | 3; New

Jersey interstate compacts, N.J.S.A. Title 32 generally; for

example, settling boundaries along the Delaware River in 1783,

N.J.S.A. 52:28-25; Fernand Braudel, The Wheels of Commerce,

pp. 314-316 (trans. ed. 1982)("The purpose of the guilds was to

bring together the members of a single trade which they

defended against all others . . .).

‘The Legal Intelligencer, August 5, 1996, p.31. Ina

similar vein, see, New Jersey Lawyer, June 26, 1996, "Jersey

Tells Philly Lawyers: Buzz Off!;" New Jersey Lawyer, August

12, 1996, "Invaders Irk South Jerseyans" (reporting that

president of Burlington County, NJ, bar association president-

also a secretary for New Jersey’s District Ethics Committee,

District ITi-B--accused Pennsylvania lawyers of being rude and

ignorant of local procedures).

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Ms. Jacob’s sentiments are not new.

"For years, New Jersey law firms have moaned that

out-of-state law firms, especially those from

Manhattan and Philadelphia. have been encroaching on

their territory, wooing away their clients. . . In fact,

New Jersey made it tough for out-of-staters to come

here, by requiring firms to maintain and staff bona

fide offices. 143 N.J.L.J. 768, 774 (Feb. 26, 1996)."

The real purpose of the rule is economic

protectionism.” See, Richard L. Abel, American Lawyers,

Chapters 5-7 (1989)(describing history of legal profession’s

efforts to restrict practice of law, including bans on non-

lawyers and limiting supply of lawyers, and self-

regulation, including use of ethical rules and disciplinary

process for protectionist ends).

The history of New Jersey’s rules governing the

practice of law shows facial discrimination against out-of-

state lawyers and blatant protectionism. In re Sackman, 90

N.J. 521, 448 A.2d 1014, 1017 (1982). The current rule,

adopted in response to constitutional challenges to a prior

version [in Sackman], does not satisfy constitutional

objections, but is a subterfuge masking discriminatory and

protectionist intent and effect.

In the face of its explicit recognition that the rule may

have an element of protectionism, without a record, while

acknowledging the lack of legal checks and balances to

5*"Many of the states that have erected fences against out-of-

state lawyers have done so primarily to protect their own

lawyers from professional competition." Smith, Time fora

National Practice of Law Act, 64 A.B.A.J. 557 (1978).

3

ensure the rule was not designed primarily to benefit the

New Jersey bar, and contrary to holdings of this Court, the

Court of Appeals upheld the constitutionality of the office

requirement on two unsupported "beliefs" that "there is a

satisfactory basis to find a rational relationship between the

bona fide office requirement and the intended benefit of

attorney accessibility," and that those lawyers most

burdened by the rule "do not constitute a very large class."

Tolchin v. Supreme Court of N.J., 111 F.3d 1099, 1109

(3d Cir. 1997).

t mi uri

Amicus is a resident of Philadelphia, PA.

On November 30, 1988, amicus became a member of

the bar of the Supreme Court of Pennsylvania, and on

December 19, 1988, became a member of the bar of the

Supreme Court of New Jersey.

Amicus is an associate with Lyman & Ash, a law firm

located in Philadelphia, PA, now made up of four lawyers.

Lyman & Ash has a general litigation practice, and

regularly handles cases in a variety of areas of law and

jurisdictions.°

Lyman & Ash was formed in 1972. Until 1988, the

Recently reported decisions in which Lyman & Ash was

involved include this case; McDaniels v. Flick, 59 F.3d 446 (3d

Cir. 1995); Squires v. Bonser, 54 F.3d 168 (3d Cir. 1995);

Larsen v. Senate, 955 F.Supp. 1549 (M.D.Pa. 1997); Gray v.

St. Martin's Press, 929 F.Supp. 40 (D.N.H. 1996); Lyman v.

Boonin, 535 Pa. 397, 635 A.2d 1029 (1993); and, von Pein v.

von Pein, 268 N.J.Super. 7, 632 A.2d 830 (A.D. 1993).

4

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firm did not handle any case in New Jersey. In 1988 and

1989, members of the firm were admitted pro hac vice in

two cases in New Jersey. In 1993, the New Jersey

Superior Court, Appellate Division, noted that the firm had

done "a superb job" in a fraud conspiracy case. von Pein

v. von Pein, 268 N.J.Super. 7, 632 A.2d 830, 836 (A.D.

1993).

In March 1994, the firm opened an office in Camden,

NJ.

The New Jersey office is a burden without any

corresponding benefit to Lyman & Ash, its clients, the

New Jersey public, bench or bar.

The bona fide office requirement is vague as written

and as interpreted, making compliance difficult.

The office requirement is in effect a tax or tariff, and

is a burden because Lyman & Ash pays for additional rent,

equipment, telephone and personnel. No one at Lyman &

Ash needs or wishes to use this office. The office rule

requires lawyers and clerical employees to go back and

forth between Philadelphia and Camden.

Amicus’s Philadelphia office is approximately three

miles from his Camden office and from the Camden

County Courthouse. From his Philadelphia office, amicus

can reach the courthouse by way of PATCO train service

in approximately fifteen minutes. Amicus is closer to the

Camden County Courthouse, and can reach the courthouse

more quickly and reliably because of the train service, than

can other lawyers whose principal office is located in other

sections of Camden County, who must rely on motor

vehicles to reach the courthouse. Amicus’s Philadelphia

office is located closer to courthouses in southern New

Jersey than law offices in central and northern New Jersey.

Amicus can reach Trenton, New Jersey’s capital, by

Amtrak in approximately 25 minutes.

Lyman & Ash has made a substantial investment in its

Philadelphia office, including computers, a network

system, computer software, including accounting and

billing programs, filing systems, and training personnel.

Lyman & Ash’s lawyers, office manager, closed files,

modems (with access to the internet) and small library are

all in Philadelphia. Amicus prefers to work in his

Philadelphia office, to which he walks every morning from

his house on the west side of Rittenhouse Square.

The 1996 amendment to the rule added the

requirement that a bona fide office is a place where clients

can be met. This new requirement impinges on the

constitutional rights of lawyers and clients to free interstate

travel. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct.

1322, 1329 (1969).

A corollary New Jersey rule (R. 1:21-6) requires that

bank records, files, retainer agreements, and accounting

records relating to New Jersey work, be kept in a New

Jersey office. However, Lyman & Ash’s accounting

records are handled by its office manager in Philadelphia,

and the accounting information is kept on Lyman & Ash’s

computer system in Philadelphia. Compliance with this

book-keeping rule requires creating a second set of records

and keeping them in a second office.

Moreover, R. 1:21-6 is absurd given that amicus’s

New Jersey accounts are with PNC Bank, N.A.,

headquartered in Pittsburgh, PA. Statements of these

aah at, oe ee

accounts supposedly come from New Jersey (as shown by

the return address on the envelope) but in reality, come

from Philadelphia, as can be seen from the post-marks.

While the precise requirements of a bona fide office

are unclear and are subject to interpretation and

enhancement by judicial or committee gloss, New Jersey

has made purported non-compliance with the rule an

ethical violation.

Effective January 2, 1989, R. 1:21-1(a) was amended

to add that "an attorney who practices law in New Jersey

and fails to maintain a bona fide office there shall be

deemed to be in violation of RPC 5.5(a)." Rule 5.5(a),

Rules of Professional Conduct, says:

"A lawyer shall not practice law in a jurisdiction

where doing so violates the regulation of the legal

profession in that jurisdiction."

With the 1989 amendment, a lawyer’s compliance

with the bona fide office rule is now not merely an

administrative issue, but an ethical issue. Ethics

committees, rather than administrative committees,

investigate allegations that a lawyer is not in compliance

with the rule. The amendment of R. 1:21-1(a) to make

violations a subject of disciplinary action was done to

provide an additional tool of harassment and intimidation,

and is further evidence of protectionism.

New Jersey has not hesitated to discipline

Pennsylvania and New York lawyers for purported non-

compliance with the rule. See, Matter of Schutzman, 145

N.J. 568, 679 A.2d 151 (1996); Matter of Young, 144

N.J. 165, 675 A.2d 1117 (1996); Matter of Beck, 143

7

N.J. 308, 670 A.2d 1053 (1996); In re Kasson, 141 N.J.

83, 660 A.2d 1187 (1995).

The rule is used by New Jersey counsel and courts to

discriminate against and harass Philadelphia lawyers as

part of litigation strategy, including ex parte

communications between local attorneys and judges.

For example, on March 1, 1996, amicus was

scheduled to appear in Camden County Superior Court

before Hon. Charles A. Little to argue discovery-related

motions in a pending action. Judge Little was the

managing judge of the action. Instead of hearing argument

on the motions, Judge Little made false accusations from

the bench and in front of a courtroom full of lawyers and

litigants, that amicus does not maintain a bona fide office

in New Jersey in accordance with R. 1:21-1(a). Judge

Little said amicus "cannot speak in this Court." Excerpts

of a reproduced transcript of the proceeding is attached as

Appendix A.

Judge Little’s accusations sprang from erroneous

information he received ex parte from opposing counsel,

who had supplied him with a secret "affidavit." Judge

Little directed counsel to provide this "affidavit" to himself

and also directed counsel not to serve it on amicus.

Argument

1. New Jersey’s bona fide office requirement

violates the Commerce Clause.

U.S. Constitution, Article [, § 8, clause 3, empowers

Congress to regulate commerce among the several states.

"In its negative aspect, the Commerce Clause prohibits

economic protectionism--that is, regulatory measures

designed to benefit in-state economic interests by

burdening out-of-state competitors [internal quotations and

citations omitted]." Fulton Corp. v. Faulkner, 516 U.S.

__, 116 S.Ct. 848, 853 (1996).

A purpose of the dormant Commerce Clause is "to

prevent a state from retreating into economic isolation. . .

as it would do if it were free to place burdens on the flow

of commerce across its borders that commerce within those

borders would not bear." Id.

The Commerce Clause forbids discrimination, whether

forthright or ingenious. It is the court’s "duty to

determine whether the statute under attack, whatever its

name may be, will in its practical operation work

discrimination against interstate commerce." West Lynn

Creamery, Inc. v. Healy, 512 U.S. 186, 114 S.Ct. 2205,

2212 (1994)(internal quotations and citations omitted).

Faulkner held unconstitutional, North Carolina’s

"intangibles tax," assessed on a fraction of the value of

corporate stock owned by North Carolina residents

inversely proportional to the corporation’s exposure to the

state’s income tax. ~

West Lynn struck down a Massachusetts statute

protecting in-state milk producers, designed to preserve

local industry ensuring continuous and adequate supply of

fresh milk. Also, Lewis v. BT Inv. Man. Inc., 447 U.S.

27, 42, 100 S.Ct. 2009, 2018-2019 (1980) (under dormant

Commerce Clause, struck down Florida statute favoring in-

state over out-of-state entities in investor services market);

generally, Tribe, American Constitutional Law, § 6-12,

"State Regulation which discourages Multi-State Business

Structures" (2d Ed. 1988).

Faulkner, 116 S.Ct. at 855 n.3, cited Halliburton Oil

Well Co. v. Reily, 373 U.S. 64, 72, 83 S.Ct. 1201, 1205

(1963), holding that "a state may not impose a tax which

discriminates in favor of the local merchant s~ as to

encourage an out-of-state operator to become « resident in

order to compete on equal terms [internal quotations and

citation omitted]."

Camps Newfound/Owatonna v. Town of Harrison,

ME, 519 U.S. , 117 S.Ct. 1590, 1598-1601 (1997),

held an otherwise generally applicable state property tax

violates the Commerce Clause if its exemption for property

owned by charitable institutions excludes organizations

operated principally for the benefit of out-of-state

residents.

The dormant Commerce Clause analysis in Tolchin

confused discrimination against interstate commerce with

residency status, which is the analysis under Privileges &

Immunities. The court said that petitioner’s "argument

fails to implicate the Commerce Clause because such

attorneys may be New Jersey residents as well as

nonresidents" (111 F.3d at 1108):

"Any incidental discrimination caused by the bona fide

10

office requirement is not based on residency status but

on the size and type of an attorney’s practice."

Lyman & Ash is an out-of-state economic interest

because the firm’s lawyers practice in Philadelphia.

The bona fide office requirement discriminates against

interstate commerce by increasing the cost out-of-state

lawyers incur doing business in New Jersey; the rule

particularly discriminates against small firms, like Lyman

& Ash, because of the increased cost of practicing required

by a second office and accompanying services, equipment,

supplies, personnel. Requiring a second office does not

advance any public policy or interest, but is a boon-doggle

to New Jersey real estate interests.

The bona fide office requirement is parochial.

Political boundaries are irrelevant to the ways in which

commerce flows and people move.’

U.S. metropolitan areas have been designated by the

U.S. Office of Management and Budget ("OMB") as

metropolitan statistical areas ("MSA"), consolidated

MSA’s (CMSA"), and primary MSA’s ("PMSA").

Statistical Abstract of the U.S., 1995, U.S. Department of

Commerce, Bureau of Census, September 1995, pages

960-961, 967; Federal Register, Vol. 55, No. 62, Friday,

March 30, 1990, Part VI, OMB, "Revised Standards for

Defining Metropolitan Areas in the 1990's; Notice. :

"For example, recent statistics show that three percent of the

U.S. population moves to another state each year; nearly

eighteen percent move its residence annually. Sullivan, Moving

Day Involves More than Furniture, 45 MANAGE, April 1994,

p. 14.

11

The general concept of a metropolitan area is that of a

core area containing a large population nucleus, together

with adjacent communities having a high degree of

economic and social integration with that core.

OMB has designated five counties in Pennsylvania--

Bucks, Chester, Delaware, Montgomery and Philadelphia--

and four in New Jersey--Burlington, Camden, Gloucester

and Salem--as the "Philadelphia, PA-NJ" PMSA.

These designations show the high degree of economic

and social integration of Philadelphia and southern New

Jersey. Such integration is amply shown by various

regional organizations that operate in New Jersey and

Pennsylvania, and compacts between the two states.

Examples include:

** New Jersey’s Solid Waste Management Act

charges its Environmental Protection Department to

cooperate with counterparts in New York and Pennsylvania

in developing regional regulations for handling medical

waste. N.J.S.A. 13:1E-48.19.

** On May 12, 1994, Pennsylvania and New Jersey

formally unified their Delaware River port agencies,

creating the Port of Philadelphia and Camden, in order to

secure employment in the region, develop regional master

plans, and help the region build an integrated ship-rail-

highway transportation network. Delaware River Port

Authority, N.J.S.A. 32:3-2, et seq.

** New Jersey and Pennsylvania created the Delaware

Valley Urban Area Compact, N.J.S.A. 32:27-2, comprised

of four New Jersey counties and five Pennsylvania

counties, and the Delaware Valley Regional Planning

12

Commission, N.J.S.A. 32:27-8, for the purpose of

organizing and conducting "a continuing, comprehensive,

co-ordinated regional planning program for the area,

including but not limited to transportation planning."

N.J.S.A. 32:27-3.

** New Jersey and Pennsylvania agreed to

"concurrent jurisdiction within and upon the water of the

Delaware River" in 1783, six years before the U.S.

Constitution was ratified. N.J.S.A. 52:28-25.

** In addition to compacts with New York,

Pennsylvania and Delaware, New Jersey has entered into

several multi-state compacts, including Atlantic States

Marine Fisheries (32:21-1); Vehicle Equipment Safety

(32:26-1); Air Pollution Control (32:29-2); and, Pest

Control (32:30-1). Generally see, Title 32 of New Jersey

Statutes Annotated for interstate compacts.

** New Jersey created a "Central-Atlantic Region,"

under its banking and savings and loan statutes, including

Pennsylvania, Delaware and District of Columbia (New

York is not included), to provide for reciprocity in

operation and acquisition of certain lending institutions.

N.J.S.A. 17:12B-278. Interstate banks, including PNC

Bank, N.A., have multi-state operations, including in NJ

and PA.

** Bell Atlantic is the regional local telephone

company, providing service in Pennsylvania, New Jersey,

New York, New England, Delaware and Maryland.

** According to an analysis published in The

Philadelphia Inquirer, on May 26, 1996, about 32% of

New Jersey shore property south of Barnegat Light to

13

Cape May Point, is owned by Pennsylvanians.

Office requirements benefits the economic interests of

resident lawyers by increasing the costs of out-of-state

competitors, who are thereby discouraged from practicing

in New Jersey. In-state lawyers protect themselves from

increased competition. The New Jersey public is thus apt

to pay more for legal services and to have its choice of

lawyers limited.

2. New Jersey’s bona fide office requirement

violates the Privileges & Immunities

Clause.

While the bona fide office requirement is expressly

neutral, as between residents and nonresidents, its effect

overwhelmingly burdens nonresidents. As Sackman held

(448 A.2d at 1020):

"'. . . we assume that practically the overwhelming

majority of attorneys have their principal office in the

state where they live."

New Jersey residents overwhelmingly would have

their offices in New Jersey with or without the rule.

Amicus and other nonresidents would not have New Jersey

offices but for the rule. Overwhelmingly, lawyers need an

office to practice law. But they do not need two. New

Jersey residents would overwhelmingly have offices in

New Jersey from which they could practice law in New

Jersey, New York, Pennsylvania or the 47 other states.

Philadelphia lawyers would overwhelmingly carry on their

New Jersey practices from their Philadelphia offices.

14

Article IV, § 2, of the U.S. Constitution, says

"Citizens of each State shall be entitled to all Privileges

and Immunities of Citizens in the several States." The

Clause was intended to fuse into one nation a collection of

independent, sovereign states. Toomer v. Witsell, 334

U.S. 385, 68 S.Ct. 1156 (1948).

The Clause "establishes a norm of comity without

specifying the particular subjects as to which citizens of

one State coming within the jurisdiction of another are

guaranteed equality of treatment." Austin v. New

Hampshire, 420 U.S. 656, 660, 95 S.Ct. 1191 (1975).

New Jersey’s bona fide office requirement is a odds

with precedent of this Court:

Hampshire v. Piper, 470 U.S. 274, 105 S.Ct. 272.

(1985); Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607

(1987); Supreme Court of Virginia v. Friedman, 487 U.S.

59, 108 S.Ct. 2260 (1988); Barnard v. Thorstenn, 489

U.S. 546, 109 S.Ct. 1294 (1989).

The only basis for the office requirement sustained by

the Court of Appeals was availability to courts, clients and

counsel, relying on In re Kasson, 141 N.J. 83, 660 A.2d

1187 (1995). However, this Court has rejected availability

as a reason for discrimination.

"There is no more merit to [New Hampshire’s]

assertion that a nonresident member of the bar at times

would be unavailable for court proceedings." Piper,

105 S.Ct. at 1279-1280.

"We further conclude that any need the court may

have to ensure the availability of attorneys does not

justify the in-state office requirement. As observed

LD

with regard to state residency requirements, there is

no link between residency within a State and proximity

to a courthouse." Frazier, 107 S.Ct. at 2613.

Barnard rejected this ground, relying mainly on Piper,

but in more compelling circumstances, because the Virgin

Islands is so far from the U.S. mainland. If Barnard

rejects discriminatory residency requirements based on

"geographical isolation" and inadequate levels of

competence of nonresidents in local law based on "lack of

access to local statutes, regulations and court opinions," a

fortiori for Philadelphia lawyers practicing in New Jersey

out of their Philadelphia offices.

Reliance on Kasson was misplaced, in that the

requirement of a Pennsylvania lawyer to have two offices

created the availability problem in the first place. Had the

New Jersey judge looking for atty. Kasson called his

Pennsylvania office, he would have found Kasson there.

Neither New Jersey nor the Court of Appeals has said

what "availability" means.

Paradoxically, Ms. Jacob complains about an

"invasion" of Philadelphia and New York lawyers to New

Jersey, while the Court of Appeals held the office

requirement is necessary to ensure the availability in New

Jersey of these very same invading lawyers!

Had the lower courts permitted those challenging the

rule to develop an evidentiary record, the record would

have shown numerous examples of harassment and

discrimination, including:

** opposing counsel use the bona fide office "card" as

o-getion tactic;

16

** lawyers are "grilled" in open court by judges about

their New Jersey office;

** lawyers are asked by judges how much time they

spend in their New Jersey offices;

** attorneys fees awarded in a class action were held

in escrow by a New Jersey judge pending determination by

the Superior Court of the "bona fideness" of a lawyer’s

New Jersey office®;

** sole practitioners have been harassed by

investigators and have closed their New Jersey offices;

** lawyers are quizzed by a judge about their New

Jersey telephone numbers; and,

** Superior Court judges announce in open court that

they will refer lawyers whom they think may not be in

compliance with the bona fide office requirement to ethics

committees for investigation, in flagrant violation of

lawyers’ rights to confidentiality under New Jersey law, R.

1:20-9, and New Jersey’s scheme for investigating

allegations of ethical misconduct. R. 1:20 et seq.

Such judicial conduct is intended to discourage

nonresident lawyers from practicing in southern New

Jersey, thereby increasing business for resident lawyers.

®See, New Jersey Lawyer, February 19, 1996, "What's

a Bona Fide Office Worth? Try $170,000," p. 10. Judge Barry

Weinberg’s conduct, without jurisdiction, was particularly

outrageous in light of the quality of work performed by the

Philadelphia firm_for_the benefit of New Jersey residents...» -§ ___ ___J

Strawn v. Canuso, 140 N.J. 43, 657 A.2d 420 (1995).

17

The effect is to diminish the competition faced by out-of-

state lawyers, to the benefit of resident lawyers, but to the

detriment of the New Jersey public, bench and bar, and the

overall administration of justice in New Jersey.

There are 11 law schools in New York City, 4 in the

Philadelphia area (not counting Rutgers-Camden), and only

two in New Jersey (Rutgers, with two branches, and Seton

Hall).

New Jersey apparently is afraid of this vast pool of

lawyers and legal learning on its northern and southern

borders. But such legal resources, derived through cross-

pollinization of ideas, practices and experiences of lawyers

from many jurisdictions, are a benefit to the New Jersey

public, bench and bar. Competition elevates the level of

practice and thereby improves the quality of justice.

Piper recognized that out-of-state lawyers, unafraid to

champion unpopular causes, are beneficial to a state and

good for the "maintenance or well-being of the Union."

470 U.S. at 284. Indeed, the term "Philadelphia lawyer"

was coined as a result of just such a cause, when, in 1735,

Alexander Hamilton, a leader of the Philadelphia bar,

defended John Peter Zenger in New York, in colonial

America’s most famous freedom of speech case.?

*See, Encyclopedia of the American Constitution, Vol. IV,

~ -*Zenger’s Case* (1988).

18

The U.S. District Court for the District of New Jersey

is familiar with the anomaly created by the office rule.

The district court had an in-state office requirement until

1987, when the rule was invalidated by Frazier. Since

then, amicus can practice in New Jersey federal court from

Philadelphia, but in order to practice in New Jersey state

court, must have a bona fide office in New Jersey.

Conclusion

Amicus curiae Michael S. Fettner asks this Court to

grant certiorari and to reverse the May 2, 1997, judgment

of the Court of Appeals.

Dated: October 22, 1997.

Car $7

Cletus P. Lyman

Counsel of Record

Dated: October 6, 1997.

Vg 7m

Michael S. Fettner

Amicus Curiae

19

sill | Bibra i

Appendix A

Excerpts from transcript of "discovery hearing" held

March 1, 1996, in Winokur et al. v. Princeton Insurance

Company, et al., No. L-1733-95, Superior Court of New

Jersey, Camden County, Law Division.

“THE COURT:

"MR. McGUIRE:

"MR. FETTNER:

"MS. FARRELL:

“THE COURT:

"MR. FETTNER:

"THE COURT:

"MR. FETTNER:

"THE COURT:

"MR. FETTNER:

Winokur versus Princeton.

* *

Thomas F. McGuire, for the

plaintiffs.

Michael S. Fettner, also for

plaintiifs.

Megan Farrell, from Parker, McCay

& Criscuolo, on behalf of defendant,

Princeton Insurance Company.

* * &

Before we start, Mr. Fettner, I ask

you, Sir, do you have a New Jersey

office?

Yes.

Where?

411 Cooper Street.

Your phone number at that office?

342-9719.

"THE COURT:

"MS. FARRELL:

"MR. FETTNER:

"THE COURT:

"MR. FETTNER:

"THE COURT:

"MR. FETTNER:

Is that the elevator number?

I believe so, Your Honor.

Is that the elevator number?

Telephone number that you give

answers to the elevator at Cooper

Hospital.

342-9719?

9719 -- 342-9719, at the office that

you give, 411 Cooper Street is a

receptionist. Your name does not

appear on the front door or on the

inside door. Receptionist states:

"You do not have an office there.

That it was a mail drop." And, I

ask, Sir, is that true or is that false?

We have an office there, Your

Honor, that’s in conformity with the

bona fide office requirement under

the rule. We have -- our name is on

the -- when you walk inside the

vestibule of it -- of the building,

there’s a plaque that has a listing of

the firms and our name is on there.

To my knowledge, Your Honor, I

don’t understand why 342-9719

doesn’t ring up a line at 411

Cooper Street.

"THE COURT:

I don’t either, but there is a

question, and I am directed, if it’s

not already been done, that the

matter be referred to the Ethics

Committee as to the bonafideness of

Mr. Fettner’s in the State of New

Jersey, and under Rule 1:21-1, in

my rule book that is in my

chambers, that that rule has not been

complied with, therefore, because of

that, any response to motions today

will be Mr. McGuire since he is

New Jersey Counsel. He does have

a bona fide office. Has practiced

here for many years. I refer you to

Rule 1:21-1...

* * &

It has been brought to my attention

that yesterday, the day before

yesterday, an attempt was made to

deliver pleadings to the Cooper

Avenue -- Cooper Street address.

You were not there. The individual

dropping the mail was told that you

do not have an office there and that

it was a mail drop for you.

As a Judge of the Superior Court of

New Jersey, I have an obligation,

unless someone else will do so, to

report this matter to the Ethics

Committee, and you cannot speak in

this Court until the matter is

resolved."

ate of Service

Undersigned amicus curiae hereby certifies that two

copies of the foregoing brief were served upon counsel for

petitioner and respondents, via first-class mail, on October

6, 1997.

Served upon:

Robert J. Tolchin, Esquire

Jaroslawicz and Jaros

150 William Street, 19th Fir.

New York, NY 10038

Jeffrey J. Miller, Esquire

Office of Attorney General

Division_of Law

CN 112

Hughes Justice Complex

Trenton, NJ 08625

William J. McGuire, Esquire

Tompkins McGuire & Wachenfeld

100 Mulberry Street

Gateway 4

Newark, NJ 07102

Wi & ll

Michael S. Fettner