# Amicus Curiae Brief — Morrison v. Board of Law Examiners of North Carolina (No. 06-499)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006

## Text

OCT 31 ss No. 06-499

enteniaian

§n the Supreme Court of the United States

STEVEN C. Morrison,
PETITIONER,

Vv.

Boarp Or Law EXAMINERS
Or NortH CAROLINA, &T AL.,
RESPONDENTS.

ON PETITION FOR A Writ OF CERTIORARI TO THE
UnireD STATES COURT OF APPEALS
FOR THE FourtH CIRCUIT

MOTION FOR LEAVE TO FILE Amicus CUuRIAE BRIEF
AND
BRIEF OF Amicus CURIAE
ASSOCIATION OF CORPORATE COUNSEL

IN SUPPORT OF PETITIONER

Susan J. Racant Mark I. Levy
Senior Vice President Counsel of Record
and General Counsel AMANDA L. McCoy

ASSOCIATION OF CORPORATE COUNSEL KILPATRICK STOCKTON LLP
1025 Connecticut Avenue, N.W. 607 14th Street, N.W.

Suite 200 Suite 900
Washington, D.C. 20036 Washington, D.C. 20005
(202) 293-4103 (202) 824-1437

Counsel for Amicus Curiae
Association of Corporate Counsel

204464 g

COUNSEL PRESS
(800) 274-3321 * (800) 359-6859

MOTION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF OF THE ASSOCIATION OF CORPORATE
COUNSEL IN SUPPORT OF PETITIONER

Pursuant to Supreme Court Rule 37.2(b), the Association
of Corporate Counsel (“ACC”) respectfully moves for leave
to file the attached brief as amicus curiae in support of
petitioner. Petitioner has consented to the filing of this brief;
respondents have not responded to our request for consent.

The ACC is a non-profit bar association of attorneys
practicing in the legal departments of public, private, and
not-for-profit corporations and other private-sector
organizations. ACC promotes the common interests of its
members, contributes to their continuing education, secks
to improve understanding of the role of in-house attorneys,
and encourages advancements in standards of corporate legal
practice. With more than 20,000 members employed by over
8,000 organizations in 55 countries, ACC represents attorneys
in both large and small companies, including 98 of the
Fortune 100 companies, and 74 of the Global 100 companies.

One of ACC’s principal missions is to serve as the voice
of the in-house bar. This occurs not only in connection with
matters that concern corporate legal practice and the ability
of its members to fulfill their functions as in-house counsel
to their companies, but also on broader issues relating to the
regulation of the legal profession generally, including how
outside counsel to ACC members’ clients perform their duties
and are regulated. Accordingly, ACC consistently promotes
standards that facilitate the effective and efficient practice
of law and opposes standards that interfere with that
objective, including state bar requirements that discriminate
against or burden the efficient, coordinated, and seamless
flow of corporate legal services across jurisdictional
boundaries.

ACC’s primary interest as amicus curiae in this case
arises from the profound implications of the Fourth Circuit’s
decision on the ability of ACC’s members to serve their
clients and on their corporate employers’ ability to receive
effective and economical legal representation from outside
and in-house counsel. Modern and sophisticated corporate
clients must operate in an increasingly national, and often
international, business climate in order to compete and
flourish. It is imperative for the legal profession to grow with
clients’ needs, unhindered by outdated and unconstitutional
practice barriers that artificially and unnecessarily preclude
otherwise qualified and competent corporate lawyers from
fully and readily serving the expanding geographical legal
needs of their clients. These artificial practice barriers protect
neither the public nor clients: rather, they merely create
obstacles that significantly impede corporate clients’ freedom
to hire expert counsel of their choice or to relocate in-house
legal staff with whom they have a longstanding and trusted
professional relationship. Because the North Carolina
reciprocity provisions at issue in this case unconstitutionally
impair these objectives, ACC submits this brief in support
of the petition for certiorari that seeks review of the Fourth
Circuit’s decision upholding those provisions.

Accordingly, the motion for leave to file the attached
amicus curiae brief should be granted.

Respectfully submitted.

Susan J. HACKETT Mark I. Levy

Senior Vice President Counsel of Record

and General Counsel AMANDA L. McCoy
ASSOCIATION OF KILPATRICK STOCKTON LLP
CorPorRATE COUNSEL 607 14th Street, N. W.
1025 Connecticut Ave.,N.W. Suite 900
Suite 200 Washington, D.C. 20005
Washington, D.C. 20036 (202) 824-1437
(202) 293-4103

Counsel for Amicus Curiae
Association of Corporate Counsel

October 31, 2006

i

- TABLE OF CONTENTS

Sade OF AU POS TIBG: 66s vn bice dive vea een

INTEREST OF THE AMICUS CURIAE .........

INTRODUCTION AND SUMMARY OF
| Bub marae ap rnee gs ee Ey Op ae area me

I.

THE MODERN PRACTICE OF LAW HAS
BECOME INHERENTLY INTERSTATE
IN ORDER TO SERVE CLIENTS’ NEEDS,
AND NORTH CAROLINA’S RECIPRO-
CITY PROVISIONS FAIL TO REFLECT
THIS DEVELOPMENT OF THE LEGAL
PROFEGHION. 55 ss

THE NORTH CAROLINA RECIPROCITY
PROVISIONS ARE IRRATIONAL
AND BURDENSOME AND _ ARE
UNNECESSARY TO THE STATE’S
LEGITIMATE INTEREST IN ENSURING
ATTORNEY COMPETENCE AND
pik er Tr eee eye ee ore

A. States’ Bar Admission Systems. ......

B. The Design And Effect Of The North
Carolina Reciprocity Provisions. .....

10

ii

Contents

Page
lil. THE NORTH CAROLINA RECIPROCITY
PROVISIONS VIOLATE THE EQUAL
PROTECTION AND DUE PROCESS
CLAUSES AND THE COMMERCE
CAGE Saas A haa acich aac Waeorew ee yes 14
A. Due Process And Equal Protection. ... 14
BCS CRG. on oc ei oe er eae 17

XPT RANE dois b 0 5 Coe NSN SER Mew enews 20

ili

TABLE OF AUTHORITIES

Page
Cases .
Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984)
JERE REG Decne Shakin cheeses de aeieok ee 18
Barnard v. Thorstenn, 489 U.S. 546 (1989) ....... 8, 17
C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S.

| aE a Ras oe a SENT Osher” 18
City of Cleburne v. Cleburne Living Center, 473 U.S.

SE CRE Ns Cis BSS SERRE IG CARRE 15
Frazier v. Heebe, 482 U.S. 641 (1987) ........ 5, 8, 15
Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S.

Sb | eee eet a ee tee eee tea Sana 17
Keenan v. Board of Law Examiners of North

Carolina, 317 F. Supp. 1350 (E.D.N.C. 1970)

CR NN OOUNED oa cis vcs cece rere wees 1-2
Leclerc v. Webb, No. 06-11 petition for cert. pending

(filed June 22, 2006), order inviting Solicitor

General to file a brief (Oct. 2, 2006) .......... 8
Leis v. Flynt, 439 U.S. 438 (1979) ............. 4,3

Maine v. Taylor, 477 U.S. 131 (1986) ........... 18

iv

Cited Authorities
Page
Maw v. Calogero, No. 05-1645, petition for cert.
pending (filed June 23, 2006), order inviting
Solicitor General to file a brief (Oct. 2, 2006) .. 8
New Energy Co. v. Limbach, 486 U.S. 269 (1988)
bak eae basen conti Smetana a oR Ceeean 18
Schware v. Board of Bar Examiners of New Mexico,
S9E Ue AER TTED rR Serre eee reaeaereein 1,14
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
ME CRN ik hoa FOG TRE 15
Supreme Court of New Hampshire v. Piper, 470 U.S.
RIRCIUE bp eane cnc deeaesinaseeawns 7, 8, 15, 17
Supreme Court of Virginia v. Friedman, 487 U.S. 59
CONOR SSSA ORR EER 8, 10, 15, 16, 17
United States v. Gonzalez-Lopez, 126 S. Ct. 2557
COI oO PRUs and heehee sows eeecen 5,8
Zobel v. Williams, 457 U.S. 55 (1982) ........... 15

Rule

Re Ce BI cw Oke ha ek ee kee 1

Cited Authorities

Other Authorities
Richard L. Abel, AMericAn Lawyers (1989) ...... 3, 6

AMERICAN Bar Association, Report of the Committee
on Multijurisdictional Practice (Aug. 2002) ....
Sets tet ON Ee On EEE COE 4,5, 7, 8, 12, 14, 16

Jonathan B. Chase, Does Professional Licensing
Conditioned Upon Mutual Reciprocity Violate the
Commerce Clause?, 10 Vr. L. Rev. 223 (1985) ... 17

Gerald J. Clark, The Two Faces of Multijurisdictional
Practice, 29 N. Ky. L. Rev. 251 (2002) ........ A

National Conference of Bar Examiners and American
Bar Association Section of Legal Education and
Admission to the Bar, CoMpREHENSIVE GUIDE TO
Bar ADMISSION REQUIREMENTS (2006) .......... 10

National Conference of Bar Examiners, THE Bar
EXAMINERS’ HANDBOOK (3d ed. 1991) .......... 2,3

Carol A. Needham, Splitting Bar Admission into
Federal and State Components: National
Admission for Advice on Federal Law, 45 U. Kan.
Ra PERO NED. cons vvecetwvcsseves 5, 7, 13, 16

North Carolina Board of Law Examiners
website, http://www.ncble.org (follow “comity”
ED Wind's do twhiv-s SAN t to eweeveguae yess 11

vi

Cited Authorities
Page

Andrew M. Perlman, A Bar Against Competition:
The Unconstitutionality of Admission Rules for
Out-of-State Lawyers, 18 Geo. J. Lear Etuics 135
CE even Gans beens 30a 6, 7, 8, 11, 13, 15, 18

Deborah L. Rhode, IN Tue INTERESTS OF JUSTICE:
REFORMING THE LEGAL Proression (2000) . .5, 7,8, il, 16

Ronald D. Rotunda, Mopern ConstTiITuTIONAL Law
5 3-S.at 1S CGOE, DOGG ov evicteeekenwecess 17

Chesterfield Smith, Time for a National Practice of
Law Act, 64 A.B.A.J. 557 (1978) ...........5. 7

Charles W. Wolfram, Sneaking Around in the Legal
Profession: Interjurisdictional Unauthorized
Practice by Transactional Lawyers, 36 S. Tex. L.

Re GES CIRSS? bo ween Hi aes 4,5, 7, 12,15

1

INTEREST OF THE AMICUS CURIAE

The Association of Corporate Counsel (“ACC”) is a non-
profit bar association for attorneys practicing as in-house counsel
in the legal departments of domestic and international public,
private, and not-for-profit corporations and other private-sector
organizations. The interest of ACC as amicus curiae is set forth
in the accompanying motion for leave to file this brief.'

INTRODUCTION AND SUMMARY OF ARGUMENT

It is well established, and not contested in this case, that
states have the constitutional authority to regulate the legal
profession and the practice of law. This includes the admission
of attorneys to the state bar. See Schware v. Board of Bar
Examiners of New Mexico, 353 U.S. 232 (1957). Furthermore,
this Court has recognized that a lawyer admitted in one state
does not have a constitutional right automatically to be allowed
to practice in another state. See Leis v. Flynt, 439 U.S. 438, 443
(1979).

At the same time, it is equally well settled that a state
“cannot exclude a person from the practice of law . . . for reasons
that contravene the Due Process or Equal Protection Clause of
the Fourteenth Amendment.” Schware, 353 U.S. at 238-39.
Furthermore, although a state can set appropriate standards of
legal competence and good character for admission to its bar,
“any qualification must have a rational connection with the
applicant’s fitness or capacity to practice law.” Jd. at 239. As
Judge Craven previously explained for a three-judge district
court with specific reference to the North Carolina bar, “[iJjn
licensing attorneys there is but one constitutionally permissible
state objective; the assurance that the applicant is capable and
fit to practice law.” Keenan v. Board of Law Examiners of North

1. Pursuant to Supreme Court Rule 37.6, amicus curiae states that
this brief was not authored, in whole or in part, by counsel for a party,
and no monetary contribution to the preparation or submission of this
brief was made by any person or entity other than the amicus curiae, its
members, or counsel.

2

Carolina, 317 F. Supp. 1350, 1359 (E.D.N.C. 1970) (three-judge
court). See Pet. 2 (North Carolina bar statutes and rules). Thus,
the National Conference of Bar Examiners recognizes that
“{s]tate standards of qualification ... must have a rational
connection with the applicant’s fitness or capacity to practice
law.” National Conference of Bar Examiners, THe Bar
EXAMINERS’ HANDBOOK 20:103 (3d ed. 1991).

The reciprocity provisions adapted by the bar of North
Carolina (and those of approximately 22 other states, see page
10, infra) squarely raise the issue of the constitutional limits on
state requirements imposed for bar admission without
examination. The North Carolina reciprocity requirements are
arbitrary and irrational and serve as protectionist barriers that
impede the ability of out-of-state lawyers to gain admittance in
North Carolina.

In recent years, the practice of law unquestionably has
become interstate (and international) in nature. This largely
reflects the needs of clients in a national (and global) economy.
State regulation of the legal profession, however, was born in
another era, when businesses were largely local and lawyers
were primarily engaged in practice before the courts of a single
state. Because the practice of law has changed and the regulation
of lawyers has not, the state licensing system has failed to keep
up with this development. The reciprocity provisions imposed
by North Carolina and 22 other states lead to arbitrary and
irrational results for lawyers required to comply with the burdens
of multistate practice regulation. This impedes the interstate
practice of law and interstate movement of lawyers, but fails to
serve the states’ legitimate objective of ensuring the competence
and fitness of the attorneys admitted to their bars.

The focus of state bar regulation increasingly has shifted
from the legitimate ends of protecting the public toward the
illegitimate ends of protecting local practitioners from
competition from their peers who are qualified to practice but
licensed in other states. It is not unusual, unfortunately, for state

3

bars to adopt various means to protect the interests of their
locally admitted members. For example, they widely erected
residency requirements, but this Court repeatedly invalidated
those measures. North Carolina’s reciprocity provisions
represent the next generation of restrictive bar requirements,
and petitioner’s challenge to reciprocity requirements is the latest
battle in this continuing war to free lawyers, their clients, and
the Nation’s economy from the parochial restraints of state bar
organizations.

The question of the constitutionality of these reciprocity
provisions warrants this Court’s review. Such requirements are
common among the states and present an issue of recurring
importance. As the practice of law has become more national
(and international) in nature and the mobility of lawyers has
increased, state restraints on multi-jurisdictional practice have
imposed ever-greater burdens on clients’ choice of counsel, the
expert practice of substantive law which is not limited by the
boundaries of states and nations, and the inter-connected nature
of our world economy. This has had particularly adverse effects
on corporate lawyers and the corporate clients they represent.
See Richard L. Abel, American Lawyers 124 (1989) (“easing
of interstate mobility will be particularly important to house
counsel’). The circumstances of this case fully illustrate these
problems. Accordingly, the petition for a writ of certiorari should
be granted. See National Conference of Bar Examiners at
20:103-04, 20:107 (recognizing that “much of the states’
discretion in dealing with bar admissions has been eliminated
by the cloaking of bar applicants with constitutional protections”
and that reciprocity requirements “are ripe for challenge’’).

4

lL. THE MODERN PRACTICE OF LAW HAS BECOME
INHERENTLY INTERSTATE IN ORDER TO
SERVE CLIENTS’ NEEDS, AND NORTH
CAROLINA’S RECIPROCITY PROVISIONS FAIL
TO REFLECT THIS DEVELOPMENT OF THE:
LEGAL PROFESSION.

Our legal system, like the national (and international)
economy, has undergone rapid and profound change in recent
years. In particular, the practice of law has been largely
transformed in the last few decades.

As Justice Stevens noted in his dissent in Leis, “the nature
of law practice has undergone a metamorphosis.” 439 U.S. at
449 (Stevens, J., dissenting). “Interstate law practice and multi-
state law firms are now commonplace,” and “‘[mJulti-state or
interstate practice by attorneys in this country is an expanding
phenomenon.”” /d. at 449 n.8 (citation omitted).

National bar organizations and academic commentators
similarly have observed this fundamental change in the practice
of law. A report of the American Bar Association Commission
on Multijurisdictional Practice, noting “the changing nature of
law practice,” explains the “general consensus” that “cross-
border legal practice” is “on the increase” and that “this trend is
not only inevitable, but necessary.” AMERICAN Bar ASSOCIATION,
Report of the Committee on Multijurisdictional Practice (Aug.
2002) at 3, 10. See also, e.g., Charles W. Wolfram, Sneaking
Around in the Legal Profession: Interjurisdictional
Unauthorized Practice by Transactional Lawyers, 36 S. Tex.
L. Rev. 665, 668 (1995).

This now-familiar development in the legal profession has
been attributed to a number of factors. For example, clients large
and small, from every industry, increasingly are involved in
disputes or transactions that cross state lines and thus need multi-
state legal services. Especially as law practice has become more
specialized, corporate clients depend on lawyers who have
expertise in a particular substantive area of law as it is applied

5

across jurisdictional lines; clients look to hire lawyers who can
meet their needs wherever legal representation is required. While
local counsel will always play a vital role, there is an increasingly
great need for national and even international counsel. This, in
turn, has been facilitated by a growing degree of uniformity in
state law in a host of areas and the enhanced scope and
applicability of federal law. Finally, the greater mobility of
lawyers and the existence and prominence of large multi-state
and even international law firms also play an important role in
this development. See, e.g. Frazier v. Heebe, 482 U.S. 641, 648
n.7 (1987); Leis, 439 U.S. at 449 & nn.6, 8 (Stevens, J.,
dissenting); ABA Report at 3, 10-12; Wolfram at 668-69; Gerald
J. Clark, The Two Faces of Multijurisdictional Practice, 29 N.
Ky. L. Rev. 251, 263-64 (2002).

- In assessing this development, it is critical to keep in mind
the needs of the client and lawyers’ paramount obligation to
serve their clients. See Leis, 439 U.S. at 445 n.2 (Stevens, J.,
dissenting). Noting “our tradition of respect for client choice,”
the ABA Report explains that there is a “need for lawyers to
cross state borders to afford clients competent representation”
and that “[t]he existing system of lawyer regulation has costs
for clients.” ABA Report at 5, 10, 12. See also Deborah L.
Rhode, IN Tue INTERESTS OF JUSTICE: REFORMING THE LEGAL
PROFESSION 154 (2000); Carol A. Needham, Splitting Bar
Admission into Federal and State Components: National
Admission for Advice on Federal Law, 45 U. Kan. L. Rev 453,
476 (1997); see generally United States v. Gonzalez-Lopez, 126
S. Ct. 2557 (2006) (discussing right to counsel of client’s own
choosing).

Unjustified restrictions on the multijurisdictional practice
of law severely burden corporate clients in a variety of ways.
See, e.g., ABA Report at 10-12; Wolfram at 668-69. For example,
in litigation or transactions that involve more than one state, as
complex and even many routine legal issues do today, these
restrictions require companies to have legal representation in
multiple (sometimes all 50) states. In turn, this restricts their

6

ability to retain outside counsel of their choice who is expert in
the area of law and who is familiar to the client but not licensed
in every one of the states in question. It also impairs their ability
to achieve coordinated and effective compliance with the law
across the company as a whole. And it necessarily increases the
cost of legal services to the client.

| Similarly, such restrictions require companies to have in-

house lawyers admitted in every jurisdiction where they operate
or legal disputes arise. Thus, instead of one corporate attorney
who is expert in the particular area of law, they need to have a
multiplicity of lawyers, thereby interfering with efficient staffing
and internal flexibility and again driving up legal costs.

Finally, these restrictions also undermine companies’ ability
to retain or hire lawyers by discouraging outside or in-house
counsel from relocating to take new positions because of the
significant deterrent posed by arbitrary admission rules and the
prospect that an experienced lawyer would again have to take
the bar exam (perhaps in multiple jurisdictions). This case
graphically illustrates these concerns for corporations and for
the legal profession.

Unfortunately, state bars have not, in general, kept up with
the fundamental changes in the legal profession. Historically,
“few restrictions on interstate law practice existed. .. . ‘[U)ntil
the 1930s, lawyers admitted in one state encountered few
impediments in practicing in another.’” Andrew M. Perlman, A
Bar Against Competition: The Unconstitutionality of Admission
Rules for Out-of-State Lawyers, 18 Geo. J. LeGat Etnics 135,
145 (2004), quoting Abel at 124.

With the Depression, however, “[s]tarting in the 1930s, state
bars increasingly ‘sought to protect their markets from out-of-
state lawyers.” Jd. at 148, quoting Abel at 124. “One prominent
legal ethicist, Professor Charles Wolfram, has captured the
essence of what many commentators have found:

‘(T]he states [today] are by and large quite restrictive
about admitting out of state lawyers. . . . The reasons

7

given for the restrictions are probably largely pious
eyewash. The real motivation, one strongly suspects,
has to do with cutting down on the economic threat
posed for in-state lawyers .. . by competition with
out-of-state lawyers.’

Id. at 147, quoting Wolfram at 679. Thus, as this Court has
noted, according to a former president of the American Bar
Association, “‘[mJany of the states that have erected fences
against out-of-state lawyers have done so primarily to protect
their own lawyers from professional competition.”” Supreme
Court of New Hampshire v. Piper, 470 U.S. 274, 285 n.18
(1985), quoting Chesterfield Smith, Time for a National Practice
of Law Act, 64 A.B.A.J. 557 (1978). See also, e.g., Perlman at
138, 147-50, 170, 178; Clark at 254, 265; Needham at 467,
475-76.

State bar regulation continues to amount to guild-like
protectionism for local lawyers and fails to reflect the profound
changes that have occurred in the legal profession and the multi-
state practice of law. As the ABA Report succinctly summarizes:
“Although client needs and legal practices have evolved, lawyer
regulation has not yet responded effectively to that evolution.”
ABA Report at 3. Instead of “catch[ing] up with the changing
realities of the practice of law,” the perpetuation of restraints
on multi-jurisdictional practice embodies “semi-official
professional mythology about the largely bygone world in which
the bar’s leadership appears to believe it continues to practice
. . . [and in particular] the myth of the single-state practitioner.”
Wolfram at 670. These restraints on “interstate practice are both
real and substantial, and they reflect poor state policy. . . . [Such
limits] either must ignore the present realities and desirability
of interstate dealings by clients or be rooted in concern for the
competitive advantage of local lawyers that ill serves a vibrant
national economy.” /d. at 713. See also Rhode at 154 (“[s}uch
reciprocity rules are difficult to justify from any consumer
protection perspective”); Clark at 264-65. As a result, although

“(ljawyers recognize that the geographic scope of a lawyer’s

8

practice must be adequate to enable the lawyer to serve the needs
of clients in a national and global economy,” state bar rules
“impede lawyers’ ability to meet their clients’ multi-state and
interstate legal needs efficiently and effectively.” ABA Report
at 3.

State bar protection has taken different forms over time.
For example, residency requirements once were widely used to
exclude out-of-state lawyers. In a series of decisions, this Court
invalidated such restrictions. See Barnard v. Thorstenn, 489 U.S.
546 (1989); Supreme Court of Virginia v. Friedman, 487 U.S.
59 (1988); Piper, supra; see also Frazier v. Heebe, supra
(residency requirement for federal district-court bar was
irrational and unnecessary to serve the purpose of attorney
competence). In addition, in some instances out-of-state lawyers
have been excluded by application of pro hac vice rules. See,
e.g., Gonzalez-Lopez, supra. See also Maw v. Calogero, petition
for cert. pending, No. 05-1645 (filed June 23, 2006), and Leclerc
v. Webb, petition for cert. pending, No. 06-11 (filed June 22,
2006), orders inviting Solicitor General to file briefs (Oct. 2,
2006).

The reciprocity provisions adopted by respondents (and the
bars of 22 other states) are the latest manifestation of this same
problem. Such requirements are arbitrary, irrational, unrelated
to the protection of the public, and onerous to out-of-state
lawyers and their clients. There can be no doubt about the
significance of this issue to our legal system and to our economy
in general. In Piper, this Court explained both that “the practice
of law is important to the national economy” and that “the legal
profession has a noncommercial role and duty” that underscore
the broad public consequences of bar limitations.

Furthermore, such restraints are not self-correcting. “The
history of bar reform suggests that necessary changes often occur
only after significant litigation.” Perlman at 178. This is hardly
surprising; “[o]nce admitted to the bar, lawyers have little
incentive to eliminate arbitrary or overbroad restrictions if the

9

effect would be to increase the number of potential competitors.” ;
Rhode at 154.

In the past, this Court has been vigilant to grant review to
foreclose unconstitutional efforts by state bars to exclude out-
of-state lawyers. It should be no less vigilant here.

ll. THE NORTH CAROLINA RECIPROCITY
PROVISIONS ARE IRRATIONAL AND BURDEN-
SOME AND ARE UNNECESSARY TO THE
STATE’S LEGITIMATE INTEREST IN ENSURING
ATTORNEY COMPETENCE AND FITNESS.

The North Carolina reciprocity provisions consist of two
parts. The first is the basic reciprocity requirement that North
Carolina will admit to its bar without a required bar examination
a lawyer licensed in another state if, but only if, that other state
does the same for a North Carolina lawyer seeking admittance
to its bar (the “place-of-admission requirement’). The second
is the additional requirement that the lawyer must actively have
practiced in the reciprocity state for at least four of the last six
years preceding the application to be admitted to the North
Carolina bar without examination (the “place-of-practice
requirement’).

ACC submits that both provisions are at issue here under
the Fourth Circuit’s decision. The court of appeals, while
purporting to treat them as separate issues, in fact conflated
them. Thus, while the court disclaimed deciding the
constitutionality of the basic place-of-admission reciprocity
requirement (Pet. App. 3 n.1), its stated rationale for expressly
upholding the place-of-practice requirement was entirely and
exactly that reciprocity itself is valid. See id. at 6-8. Accordingly,
the decision below effectively passed upon both components
of the North Carolina reciprocity provisions. In these
circumstances, the antecedent place-of-admission requirement
as well as the place-of-practice requirement that was explicitly
sustained are properly before this Court.

10

A. States’ Bar Admission Systems.

In 2005, of the 50 states and the District of Columbia,
approximately 19 jurisdictions required that an attorney who
seeks full-time or permanent admission to that state’s bar,
regardless of the applicant’s prior practice or admission in
another jurisdiction, take and pass that state’s bar examination.
See generally National Conference of Bar Examiners and
American Bar Association Section of Legal Education and
Admission to the Bar, ComprEHENSIVE GuIDE TO BAR ADMISSION
REQUIREMENTS 25-29 (2006) (not inclusive of recent 2006
changes to bar admission requirements).

The remaining jurisdictions provided for admission without
examination (also known as “admission on motion,” see
Freidman, 487 U.S. at 61) to certain applicants who have
previously been admitted to the bar of another state. Of these
approximately 32 jurisdictions, some 13 states allowed attorneys
who have previously been admitted to the bar of any other U.S.
jurisdiction, and who have been practicing for a prescribed
number of years, to apply for admission on motion without
having to re-take a bar examination.

The remaining jurisdictions limited admission on motion
to those candidates from jurisdictions that permit reciprocity of
admission without examination for their lawyers. Of the
approximately 23 reciprocity jurisdictions, some 14 states,
including North Carolina, required that the applicant have
engaged in the active practice of law for a specified number of
years in the state of reciprocity. Under the laws of the other
nine reciprocity states, the location of the applicant’s practice
need not have been in a reciprocity state.

B. The Design And Effect Of The North Carolina
Reciprocity Provisions.

An understanding of the design and effect of the place-of-
admission and place-of-practice requirements is crucial for the
legal arguments that follow in Section II, infra.

1]

1. Place-of-admission requirement. North Carolina affords
reciprocity to lawyers admitted in any other state if, and only if,
that state offers reciprocal advantages to North Carolina lawyers
requesting admission without examination to its bar. If another
state declines, for whatever reason, to enter into a reciprocal
arrangement, North Carolina will not permit the other state’s
lawyers to be admitted on this basis; in thus excluding them,
North Carolina does not make any determination of the other
state’s bar admission standards or the competence of its lawyers
to practice in North Carolina. See Rhode at 154 (“{i]f
experienced out-of-state attorneys are competent to practice, it
shouldn’t matter how their local bars treat competitors”).

Conversely, North Carolina automatically allows
reciprocity to another state simply upon the other state’s grant
of reciprocity to North Carolina. Again, North Carolina makes
no attempt to determine the stringency of the other state’s bar
examination, or the competence of its lawyers, or the similarity
of the laws of that state to those of North Carolina, or any other
factor that would rationally support North Carolina’s acceptance
of the other state’s bar exam and admission as an indication of
the competence and character of the lawyer seeking admittance
to the North Carolina bar. See Perlman at 150. In fact,
respondents’ website expressly disclaims even knowing at any
given time which other states have reciprocity arrangements
with North Carolina, directing the viewer to check with the bar
authorities in the other states. See http://www.ncble.org (follow
“comity” hyperlink).

Respondents have candidly acknowledged that the sole
purpose of this reciprocity requirement is to entice other states
to confer reciprocal benefits on North Carolina lawyers. See
Pet. App. 39. Thus, the North Carolina reciprocity requirement
was designed and adopted in order to benefit lawyers licensed
in North Carolina, not to protect the public by ensuring the
competence and fitness of lawyers seeking admission to the
North Carolina bar without examination.

12

In view of the deficiencies and arbitrariness of state-by-
state reciprocity arrangements such as North Carolina’s, the ABA
Commission on Multijurisdictional Practice recommends that
admission without examination be extended to any lawyer who,
inter alia, has been admitted to practice law in any other state,
territory, or the District of Columbia for a specified period of
time. See ABA Report at 47. As the Report elaborates, the
recommended provision

recognize[s] the reality that lawyers who have been
admitted to another state’s bar and have practiced
actively for a significant period of time without
disciplinary sanction are qualified to establish a law
practice in the new state and that, for experienced
lawyers, the bar examination [which would be
necessary absent reciprocal admission] . . . serves
as an unnecessary obstacle to establishing a practice
in the new state.

Id. at 48.?

2. Place-of-practice requirement. In addition to the basic
place-of-admission reciprocity requirement, North Carolina also
imposes a place-of-practice requirement that the applicant for
admission without examination must have actively practiced
for at least four of the last six years in the reciprocity state. In
particular, it is not sufficient that an applicant have been licensed
by and actively practicing law in a state for that period preceding
his application; rather, he is required to have been engaged in
the active practice of law in the specific state that is the basis
for his requested admission without examination on the ground
of reciprocity. By itself, this provision serves to exclude licensed
and competent out-of-state lawyers from admission in North
Carolina. See Wolfram at 682 (“[mJost onerous for lawyers who
frequently move from state to state is a requirement found in
many on-motion states establishing a minimum number of years

2. Respondent was admitted, by examination, in California,
Indiana, and Ohio.

13

during which the out-of-state applicant must have practiced law
in a single jurisdiction”); Needham at 503.

In its evident design and effect, the North Carolina place-
of-practice requirement is highly arbitrary and irrational and
does nothing to ensure competence and fitness to practice law.
For example, there is no comparable requirement for a lawyer
who long-ago passed the North Carolina bar exam to retain his
eligibility to practice in North Carolina. Such a lawyer might
not have practiced law at all for an extended period, or not done
so in the six years preceding his application, or practiced for
brief periods in various jurisdictions outside North Carolina, or
moved away from North Carolina for many years (even to a
non-reciprocity state such as California) and then returned to
the state; yet, provided only that he satisfied the formal
requirements to maintain his bar membership each year, he could
resume practice at any point without any inquiry by respondents.
See Perlman at 158.

Likewise, as petitioner’s case demonstrates, this place-of-
practice requirement can illogically divest applicants of
eligibility for reciprocity admission that they previously
established. Mr. Morrison passed the bar exams of, and practiced
in, both Indiana and Ohio, which are reciprocity states with
North Carolina. If he had applied for admission without
examination at that time, he would have qualified. However,
because he continued to practice law for approximately 15 years
in California (where he also passed the bar exam, but which is
not a reciprocity state) and for three years in North Carolina
itself, he lost that eligibility. By contrast, a junior lawyer who
was admitted and practiced in Indiana or Ohio for four years
and then sought reciprocity admission in North Carolina would
be accepted. See Perlman at 150. Indeed, if Mr. Morrison himself
had moved back to Indiana or Ohio and practiced there for four
years, he instantly would have regained his eligibility for
reciprocity admission in North Carolina. In that circumstance,
while his competence to practice law in the state would not
have changed, the arbitrary factor of the location of his most

14

recent practice would determine his admission without
examination to the North Carolina bar.

Finally, the North Carolina place-of-practice requirement
is starkly protectionist. It does not ensure competence and fitness
but simply restricts the out-of-state lawyers who can be admitted
without examination in North Carolina and thus compete with
in-state attorneys. See Pet. App. 7-8.

The ABA Commission on Multijurisdictional Practice
avoids these inherent defects in the place-of-practice requirement
imposed by North Carolina. It recommends that admission
without examination be granted if the applicant practiced for
the prescribed period in any state, territory, or the District of
Columbia. ABA Report at 47.° The Commission explains that
lawyers who have practiced for such “a significant period of
time” in “another state’s bar” are “qualified to establish a law
practice in the new state.” /d. at 48.

Il. THE NORTH CAROLINA RECIPROCITY
PROVISIONS VIOLATE THE EQUAL PROTEC-
TION AND DUE PROCESS CLAUSES AND THE
COMMERCE CLAUSE.

Against this background, it is clear that the North Carolina
place-of-admission and place-of-practicé requirements violate
the Equal Protection and Due Process Clauses and the
Commerce Clause.

A. Due Process And Equal Protection.

Equal protection and due process are violated if the
provision in question is arbitrary and irrational in relation to
the legitimate governmental objective it is drawn to achieve.
See Schware, 353 U.S. at 238-39 (to “exclude a person from
the practice of law,” “any [bar] qualification must have a rational
connection with the applicant’s fitness or capacity to practice
law” in order to satisfy equal protection and due process);

3. The Commission recommended a period of practice of five of
the preceding seven years.

15

see also, e.g., City of Cleburne v. Cleburne Living Center, 473
U.S. 432, 440, 448 (1985); Zobel v. Williams, 457 U.S. 55,
60, 61, 65 (1982); cf Frazier v. Heebe, 482 U.S. at 646, 649
(invalidating, under supervisory power, a district-court bar
requirement as “unnecessary and irrational”); see also State
Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)
(due process). Here, as a matter of law, the only legitimate state
interest is to ensure the competence and fitness of reciprocity
applicants to practice law. See pages 1-2, supra. Neither the
place-of-admission requirement nor the place-of-practice
requirement satisfies this constitutional standard.

1. Place-of-admission requirement. As explained above
(see pages 11-12, supra), the basic place-of-admission
reciprocity requirement does nothing to ensure competence and
fitness to practice law. Rather, North Carolina automatically
allows reciprocity for any other state that grants reciprocity to
it. Thus, this requirement does not serve to test the competence
of lawyers seeking admission on motion; North Carolina has
effectively ceded control over its own bar to the other states
with which it has reciprocity relationships. Respondents rejected
petitioner’s application for reciprocity simply because
California, where he passed the bar exam and practiced for
approximately 15 years, is not a reciprocity state with North
Carolina — and it did so without any determination (or even
inquiry) as to whether California’s bar admission standards
established the professional qualifications of California-
admitted lawyers to practice in North Carolina. See Perlman at
147 (referring to “(t]he senselessness of rigid rules on interstate
law practice”); Wolfram at 679 (“[t]he reasons given for the
restrictions [on admitting out-of-state lawyers] are probably
largely pious eyewash’’).

While, of course, “this Court is not well positioned to dictate
specific legislative choices to the State, it is sufficient to note
that .. . [other] alternatives exist.” Friedman, 487 U.S. at 69;
see also Piper, 470 U.S. at 285 n.19. Most obviously, North
Carolina could — as 13 other states do and the ABA

16.

Commission on Multijurisdictional Practice recommends — not
limit its admission without examination to only some other (self-
selected) states but extend it to attorneys admitted and in good
standing in any other jurisdiction. Especially with respect to
experienced practitioners like Mr. Morrison, that approach
would be no less effective in ensuring the competence and fitness
of the lawyers admitted and would avoid the arbitrariness and
irrationality of North Carolina’s current requirement.

Nor is it an answer that applicants could avoid the
unconstitutional reciprocity requirement merely by taking the
North Carolina bar exam. First, this Court already has rejected
the identical argument, holding that such an alternative is “quite
irrelevant” because it does not cure the arbitrariness and
irrationality of the requirements and distinctions of the North
Carolina system. See Friedman, 487 U.S. at 66-67. Second,
obligating an experienced lawyer to take another bar exam is
no “mere” matter. “A bar examination, as we know judicially
and from our own experience, is not a casual or lighthearted
exercise.” Jd. at 68. Furthermore, the bar exam, which is
designed for new attorneys, is not a meaningful or accurate way
to test the competence of an experienced lawyer to practice law
and constitutes a needless barrier to admission in another state.
See ABA Report at 48 (“for experienced lawyers, the bar
examination therefore serves as an unnecessary obstacle to
establishing a practice in the new state”); Needham at 456;
Rhode at 150-52. Finally, it is cold comfort to require an
experienced lawyer who has a national practice, or who works
in or has moved among several states, to incur the significant
expense and commit the substantial time to take bar exams in
each and every one of the jurisdictions necessary to serve his
needs and those of his clients. See ABA Report at 8, 48.

2. Place-of-practice requirement. Likewise, North
Carolina’s place-of-practice requirement bears no rational
relationship to the legitimate state objective of attorney
competence and fitness. Rather, as previously demonstrated (see
pages 12-14, supra), it is completely arbitrary and irrational

17

and utterly fails to ensure that competent out-of-state attorneys
are admitted and incompetent ones rejected.

Once again, possible alternatives are readily imaginable.
For instance, in line with the practice in approximately nine
states and the recommendation of the ABA Commission on
Multijurisdictional Practice, Norin Carolina might simply
require that experienced out-of-state lawyers have practiced for
a specified period in any jurisdiction(s) in which they are
admitted (rather than, as North Carolina now does, in a particular
jurisdiction). Better yet, North Carolina could dispense with
any such place-of-practice requirement altogether and accept
that an experienced lawyer who has been practicing anywhere
else for years without any problems or complaints is competent
to be admitted to its bar. Of course, the Court need not pass
upon the constitutionality of such alternatives to grant and
ultimately resolve this case. For this purpose, it is sufficient to
note that the place-of-practice requirement adopted by
respondents is arbitrary and irrational and therefore cannot stand.

B. Commerce Clause.

The petition demonstrates that the North Carolina place-
of-admission and place-of-practice provisions violate the
Commerce Clause under the decisions of this Court, such as
Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366 (1976),
that strike down state reciprocity statutes. See also Ronald D.
Rotunda, MODERN ConstTITUTIONAL Law § 3-3 at 121 (6th ed.
2000) (questioning bar reciprocity arrangements after Great
Atlantic); Jonathan B. Chase, Does Professional Licensing
Conditioned Upon Mutual Reciprocity Violate the Commerce
Clause?, 10 Vr. L. Rev. 223 (1985).4

4. This Court has noted that the Commerce Clause was derived
from the same provision of the Articles of Confederation, and serves
the like purpose of “creat[ing] a national economic union,” as the
Privileges and Immunities Clause at issue in Piper, Friedman, and
Barnard, and that the two clauses have a ‘““mutually reinforcing
relationship." Piper, 470 U.S. at 278-80 & n.8.

18

In addition, these provisions also violate the cardinal
Commerce Clause principle that states cannot adopt protectionist
measures that advantage in-state interests at the expense of those
out-of-state. See, e.g., C&A Carbone, Inc. v. Town of Clarkstown,
511 U.S. 383 (1994); New Energy Co. v. Limbach, 486 U.S..-
269 (1988); Maine v. Taylor, 477 U.S. 131 (1986).

Under this Court’s Commerce Clause precedents, different
standards of review apply depending upon the type of state
measure at issue. Given that the North Carolina place-of-
admission and place-of-practice requirements expressly
discriminate between in-state and out-of-state attorneys, there
is a substantial argument that heightened scrutiny should obtain
here. See, e.g., Bacchus Imports, Ltd. v. Dias, 468 U.S. 263,
270 (1984) (“where simple economic protectionism is effected
by state legislation, a stricter rule of invalidity has been erected”).
But in any event, the North Carolina provisions fail to pass
constitutional muster even under the less stringent standard
because they do not serve the legitimate state purpose of attorney
competence and arbitrarily, irrationally, and unnecessarily
burden out-of-state lawyers.

1. Place-of-admission requirement. At first glance,
reciprocity in general, by allowing lawyers more easily to enter
other states’ bars, appears to enhance rather than obstruct
interstate law practice and movement by attorneys. However,
that rationale does not justify the place-of-admission
requirement imposed by North Carolina. See Perlman at 149
(“Protectionism is also apparent in the twenty-one jurisdictions
that limit admission on motion to lawyers ‘from jurisdictions
also offering admission on motion.’. . . The primary explanation
... is to promote the economic interests of the in-state bar’’)
(citation omitted).

First, the North Carolina place-of-admission requirement
is avowedly designed to benefit in-state lawyers. By respondents’
own admission, the root purpose is to induce other states to
admit without examination North Carolina lawyers to their bars

19

precisely in order to benefit those in-state lawyers. That,
however, is irrelevant to the legitimate state interest of ensuring
that out-of-state lawyers reciprocally admitted to the North

_ Carolina bar are competent and fit to practice law in the State.

Once it is seen that the place-of-admission requirement does
not serve that interest, all that remains is the naked protectionist
purpose to provide a benefit for North Carolina lawyers engaged
in interstate law practice.

In addition, that rationale in no way supports respondents’
approach to allow admission without examination to lawyers
in only some states rather than all — and indeed in only those
states that elect to grant reciprocal admissions to North Carolina
lawyers. Once again, that is entirely unrelated to attorney
competence and fitness and reveals that North Carolina simply
is seeking an economic benefit for its lawyers.

Finally, these vices in the North Carolina place-of-
admission requirement easily could be cured, e.g., by allowing
experienced attorneys admitted in any other jurisdiction to move
for admission without examination in North Carolina. See pages
15-16, supra.

2. Place-of-practice requirement. North Carolina’s place-
of-practice requirement is facially protectionist. By admitting
only those out-of-state lawyers who meet the arbitrary
prerequisite that they have actively practiced for four of the last
six years in the particular reciprocity state, and thus by excluding
other attorneys like petitioner who have demonstrated
competence and fitness in the legal profession by their many
years of practice in other jurisdictions, North Carolina serves
to protect their own in-state bar members against competition
from out-of-state lawyers. Furthermore, alternatives exist that
would allow North Carolina to ensure the competence and
fitness of the out-of-state attorneys it admits without
examination and, at the same time, would not disadvantage those
attorneys in order to benefit North Carolina lawyers. See page
17, supra.

20
CONCLUSION

For the foregoing reasons and those stated in the petition,
the petition for a writ of certiorari should be granted.

Respectfully submitted.

Susan J. HACKETT Mark I. Levy

Senior Vice President Counsel of Record

and General Counsel AMANDA L. McCoy
ASSOCIATION OF KILPATRICK STOCKTON LLP
CorPORATE COUNSEL 607 14th Street, N. W.
1025 Connecticut Ave., N.W. Suite 900
Suite 200 Washington, D.C. 20005
Washington, D.C. 20036 (202) 824-1437
(202) 293-4103

Counsel for Amicus Curiae
Association of Corporate Counsel

October 31, 2006

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1583%3A4. Public record. Not legal advice.