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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1172%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 977

## Text

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
DE Oe MI on cn cnsccccccccunscevecscssnccccsccscescescs ili
le siindaanaghenoctescecceaansassecccesserseseccens l
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).

itp shinee asta *
Shak ain het Asa A A, lh eet NK Be POM pire <OR

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1172%3A6. Public record. Not legal advice.