Brown v. Supreme Court of Virginia

Judge, Before BRYAN, Circuit MERHIGE, LEWIS District Judges, in No. 700-71-R. England State Judge, v. Louisiana exercise. BRYAN, Circuit Before Examiners, MERHIGE, Board Medical District HOFFMAN 11 L.Ed.2d Judges, in No. 43-72-R. of this Apparently the action strictly three-judge in accord- court was HOFFMAN, District E. WALTER approved procedure ance with Judge, 43-72-R. No. Supreme of States. the United Court Lawyers in No. 700-71-R. v. CURIAM Ass’n New PER Trial American 467, Jersey Supreme Court, 93 409 U.S. of area involve an These eases 627, (1973). L.Ed.2d 651 S.Ct. 34 state-federal, namely, relations; sufficiently stated The facts are admin to and a establish of Supreme of opinions Court of the to bar for admission standards ister Virginia. say, these ac- Suffice court the federal into which —a field validity 1A:1, of Rule tions attack slow especially reluctant be should reading as follows: enter,' a there is one in which but investigate appropriate duty cases. Foreign Attorneys— “Rule 1A:1. Examiners, Bar v. Board of Schware Practice in this When Admitted 752, 232, 796 1 L.Ed.2d 77 S.Ct. “Any Without Examination. State Bar, Konigsberg (1957); State 353 v. prac- person has admitted who been 252, 722, 810 1 L.Ed.2d 77 S.Ct. U.S. court of last resort tice law before the 165, Douglas Noble, (1957); 261 U.S. territory of United state or (1923); 303, L.Ed. 590 Will States or of District of Columbia Character, 373 ner v. Committee on may application to file an be admitted 96, L.Ed.2d practice law in Commonwealth li- counsel without may practice here be admit- censed against actions, originally The filed practice ted to there without examina- Supreme Appeals Court Vir- tion. ginia (later Supreme renamed the Court Virginia) justices individual applicant “The shall: hearing. thereof, were consolidated for “(1) clerk of the File with the Su- Virginia granted State Bar was applica- preme Court at Richmond leave to intervene. The American Civil oath, tion, upon form a fur- requested to inter- Liberties leave Union by nished the clerk. plaintiff party a vene as 43-72- No. signed certificate, “(2) Furnish a R, request per- but the came too late presiding judge court of although participation mit active we jurisdiction last resort of have considered brief filed. due stating law, he is entitled Supreme time the Court of that he só has been licensed which, a filed motion for abstention aft- years. five least hearing, granted May 17, er on “(3) report Furnish of the Na- a Following petitions 1972. for reconsid- tional Bar Conference of Examiners plaintiff, eration filed each Su- concerning past his preme in unanimous record. opinions Carrico, written de- Justice applications. “(4) filing fifty Application Pay nied the fee a dol- Brown, 213 Va. 191 S.E.2d de- lars. Application

cided October “Thereafter, Court will Titus, 213 Va. 191 S.E.2d applicant: determine whether decided October “(a) proper person Is not, course, Abstention did in “(b) jurisdic

volve the progress abdication of federal made Has such postponement tion, of its of law that it would be unrea- of the require him ex- full time as a member to take an sonable Accordingly, Brown was advised bar.1 amination. application his had been refused be permanent “(c) resi- Has become comply failure to cause Commonwealth. dent of the (d). l:5(4)(d), 1A:1(4) now Rule “(d) full Intends bar. as member of the 43-72-R THE CASE —NO. TITUS of these mat- “In the determination Titus, a member may call ters the Court Maryland, one office maintains State appear personally be- Mary Rockville, Montgomery County, or its ex- fore member resides, land, he and a second where also secretary such in- ecutive and furnish He office in the District of Columbia. required. formation no intention of be concedes that “If all of the aforementioned matters coming Virginia. a resident Su favorably ap- determined the are for Virginia ap preme Court of his refused plicant, he shall notified that some plication by reason of his stated inten Virginia member of the who is bar 1A:1(4) comply not with tion to Rule qualified practice to before the Su- residency (c), requiring permanent as preme may motion make an oral applicant bar for admission open court for his admission without examination.2 practice law in this Commonwealth. judgment of Since a the Su “Upon applicant’s admission he preme expresses Court of a state “the thereupon open shall court take and whole,” power Rippey of the state as a required subscribe the oaths of at- Texas, 504, 509, v. torneys law, whereupon at he shall be- Florida, 48 L.Ed. Skiriotes Virgin- come an active member of the 85 L.Ed. ia State Bar.” rulings we must examine the determining purpose they of whether THE BROWN CASE —NO. 700-71-R arbitrary discriminatory, or Brown, a member hence violation the Fourteenth Appeals the United States Court accept Amendment. We start Columbia, permanent District is a premise prac ed that the admission to Virginia. However, resident of legal he is profession tice before employed aon full-time particular basis as a belongs Su courts of a pervisory Attorney Appellate in the state. As stated Mr. Justice Court Branch of the Konigsberg National Labor Re Bar, supra, Black v. State Board, lations Washington, recognize importance leaving D. C. While “We original application his indicated that he bars, States free to select their own but practice intended to full time as a mem important it equally State Virginia bar, of the subsequent ber arbitrary cor power not exercise this in an respondence clearly revealed that discriminatory he did or manner nor in such resign not employment and, intend to way impinge po on the freedom of admitted, practice he did not expression intend to litical or association.” (formerly 1:5.2) pro Rule 1A possible :3 2. We do not reach a additional ground vides that if an (d) 1A:1(4) who has been for denial under Rule admitted to requiring without examina Titus full as a .to longer prac tion no satisfies the full-time member bar. We have requirement, tice his license be re attorney, serious doubts as to whether an already maintaining voked. Brown also attacks Rule 1A :3. two law offices separate jurisdictions, saw no can meet the re- light quirement reason opening to consider Rule 1A:3 third office. Brown’s statement that he not did intend full For time. same point. reasoning, do not reach we recognize reciprocity. residency tion and refuse Many states adhere require resi- states also of these requirement Some as a condition taking purpose the ex- dency for" the examination. without motion argu- reject Titus, ap- must We amination. Maryland, state of the home residence, plaintiffs that the requires permanent ment parently stringent than in are more law, in- and an intention states. or teach other office maintain a tention to unique profession. By of its reason cases do note these what It well situation, Columbia the District of be said At the outset can not hold. had one time of contradiction fear without years practice in require did five pertain to the moral fitness do April 1, reports a state. Effective applicants. The character modified were District Court rules of Bar from National Conference providing if the for admission Rule 93 past prac- respect to the Examiners with applicant a law office maintains applicants were tice and record “contiguous or a District of Columbia question favorable. Maryland counties Mont- area” in the not at is- federal court is Georges, gomery in the Vir- or Prince not concerned with sue. We are Fairfax, Arlington ginia counties of pat- specialized practice highly such as However, City inor of Alexandria. do cases ent or antitrust law. Nor these appearance with- to enter an appearing prohibit either lim- of counsel Virginia District Columbia is participating- cases in in in ited those an to who maintain office Virginia company in a resi- courts with except, respect the to those District with attorney. 1A:4; also dent see § maintaining contiguous in the office Virginia 54-42, amend- Code of 1950 as may District, they area not in the eligible Brown, As to he to take ed. appearance note an without local counsel Virginia and, examination the bar having only if a an office with- member successful, a he would then come within in in the District of Columbia and not to different rule as to his entitlement contiguous permitted ap- area is to Virginia. practice in Brown has not law pear, pleadings practice file in the sought to the examination. leave take contiguous courts of such area without Virginia Supreme The Court in- of being required join record at- willingness certify Brown dicated its .having torney an office the con- within receipt contemporaneous with the tiguous specific period area. No he intends devote full statement prior practice any required. in Virginia, state is practice in of law fact, Florida, Georgia, Louisiana thereby eliminating any of “en- issue and the District Columbia fail forced idleness.” any residency requirement specify for Virginia law in The admission to on motion without governed by supplemented statute as Book, examination. See Desk Am.Jur. Supreme by the Rules (2d), Supplement, 1972 Cumulative Doc. seeking Virginia.3 any applicant toAs require examination, applica- No. Ten states 94. an examina- to take the bar Virginia duly “Any prac- person See. 54-42 of the Code of authorized and amended, attorney ticing as reads : or law as counsel following persons may practice any territory “The law state or United Columbia, States, this State: District of or persons attending may purpose “All who have heretofore ob- for the tained, may occasionally obtain, hereafter have asso- case he lawyer practicing license to so this under laws ciation with State, State, this and whose license has not the courts of this State charge- revoked, paid been and who have case fee shall be which prescribed by against license tax attor- able such nonresident ney.” statements, plain- among Apparently presented requires, other tion Virginia applicant be a resident tiffs to Court that the argument approximately application take is their the time his state at applicants tak- was- of the successful the examination 26% filed longer ing he in- are no and that examination of Bar Examiners Board they yet car- resident of this residents of are continue as a tends to Virginia taking examina- ried on the rolls State state to time of 54-60, practicing attorneys. Thus, applies. they Bar Code as tion § argue, plaintiffs Virginia 1950, their are denied as amended. rights Equal Protection integrat- Virginia State Bar is an Clause of the Fourteenth Amendment. attorneys practicing ed bar and all must There are several answers to con- provides be members thereof. It but, previously noted, tention as there is payment of for active and annual dues requiring no statute or rule the deletion (inactive) fol- associate members. attorneys long of their names as as that, successfully lows passes if an they continue to maintain their member- the bar thereafter ship Virginia State Bar. The state, to main- leaves but continues large percentage attorneys rather membership tain his active in the inte- passing the bar examination but now grated bar, he is still entitled giving out-of-state addresses is occa- Virginia. sioned their attendance at the four Virginia apply where, same rule does not prior schools foreign attorneys seeking graduation, they certify at the time of reciprocity. provision making application they In addition to the permitting partici then residents of and that pate in an occasional case in will continue association as residents to the time of taking grants attorney, with a 54-67 § examination. However, the final answer grant discretion to a certificate without plaintiffs’ dependent upon contention is any lawyer examination who has Supreme whether the Court of practiced before the court of last resort has the separately constitutional any state, territory, or the District of classify applicants taking the bar exami years. Supreme Columbia for three foreign attorneys nation and those who requires years Court Rule but the five comity seek reciprocity. pertinent conflict is not to these cases. agree We with the Court of Practicing being duly law without au Virginia that there is a rational basis thorized or licensed constitutes a misde making separate for classifications. meanor under 54-44 § Code of Equal “The Protection Clause does not authority 1950. The to define may mean that a State not draw lines delegated of law is to the that treat one class of individuals or en Virginia pursuant tities different from the others. The 54-48, although universally recog it § is test is whether the difference in treat highest nized that the court of the state ment is an invidious discrimination.” may prescribe relating rules to admis Lehnhausen v. Lake Shore Auto Parts sions to the bar even in the absence a Co., 356, 1001, 410 U.S. 93 S.Ct. L. 35 statute. The admission or exclusion of (1973). Ed.2d Quantitatively 351 and attorney is not the exercise of a mere qualitatively there is a solid basis for power. ministerial It is the exercise of the distinction drawn. We are not here judicial power and the admission of an concerned with the wisdom of the Rule attorney may, propriety, with en Equal under attack and the Protection trusted parte the courts. Garland, Ex speculative Clause does not countenance 333, 4 378-379, Wall. 18 L.Ed. 366 probing purposes into the of the Rule as (1866). long plainly as it is not arbitrary or dis-

555 dismissing of a sub- for want (1958), Royster, 410 criminatory. v. McGinnis appeal from question the federal stantial 1055, 282 L.Ed.2d 35 263, 93 S.Ct. U.S. Aside 143, A.2d 139 Pa. 392 ourselves concern need we Nor (1973). case, reciprocity Titus in the the lack purpose secondary primary or with Virgin- permit a Maryland not would as Powell Justice Mr. As Rule.4 for admitted to be resident ia supra: McGinnis, said Maryland generally authorize do not our decisions “Yet circumstances, we feel like courts among legit- pick choose and courts experience that practical dictates determine legislative aims imate attorneys, in Vir- admitted subordi- primary which and is required by reciprocity, ginia should be legislative Rather, solutions nate. and, in therein a residence to maintain respected the ‘distinctions must be addition, full devote their practical ex- some basis have drawn profession the end Katzen- v. Carolina perience,’ South public may serve better 803, 331, 301, bach, 86 justice. proper administration (1966), ifor some 820, 769 L.Ed.2d respect that, feel with We also advanced, legitimate interest is “moonlight,” Brown, while his efforts 471, Dandridge Williams, 397 U.S. continuing employment full-time L.Ed.2d 90 S.Ct. Relations the National Labor pur- long the state So Board, deny him be sufficient should statutory le- is upholding class pose by reciprocity. to admission nonillusory, gitimate its lack disqualifying. primacy is fully realize that there are We do not call “When classifications attorneys who were licensed with some scrutiny, judicial is the strict who now maintain judi- approach proper consistent with addresses, who, in all out-of-state regard judgments for the cial maintaining per probability, are not Legislative Branch. search prac manent residence legislative purpose often elusive ticing full time as a member the Vir Thompson, enough, Palmer v. ginia bar. The effective date of L.Ed.2d 438 requiring full-time residence and without a May of De 1961. As Legislation primacy be ascertained. appears that 96 cember frequently multipurposed: re- by reciproci had been members licensed purpose moval of even a ‘subordinate’ ty prior'to May 1, 1961, and 41 attor altogether shift the consensus of neys were licensed without examination legislative judgment supporting the Complaint since that is date. made statute.” nothing the fact that has done to been attorneys. revoke the licenses of the 41 By analogy we conclude that There evidence in is the record toas two Rule 1A:1 draws a distinction which has (one of in revocations which resulted practical experience. a solid in basis attorney successfully thereafter by parties Virginia, is conceded all passing examination) the bar where the prohibit any foreign attorney could from attorneys Virginia appar resided in practicing Virginia anytime, in at ently continuing failed to meet' the full- require any attorney pass could practice requirement. But dif being per state bar examination before enforcing practice, Ginsburg, mitted to ficulties Rule Kovrak v. do not the. support right 3 L.Ed.2d 46 foreign any attor- argue jjurpose 4. devoting, Plaintiffs of the their full time to the monopoly legal Rule is to create on a Virginia attorneys business resident 556

ney practice.5 The In admitted to Keenan v. Board of be Law Examin- Virginia may N.C., D.C., in F.Supp. lax ers of have been State of Bar 317 State no three-judge in 1350 its enforcement efforts but this a court de- Rule unconstitutional. clared renders the unconstitutional a rule sense integrated bar calls Board of pro- unless the Law Until and Examiners which that, being certified, vided ap- to the attention Su- before the matter plicant preme there is noth- must have been a bona fide citi- ing complaint zen and resident be done unless of North that can Carolina for Moreover, prior no accurate at least twelve we have months filed.6 the date attorneys Virginia history fall of the bar who of the 41 examination. has guided category only statute; such require- and rule or are within that being by ment that, applicant seeking the rolls of the Vir- that the the fact on carry Bar, they ginia take the out-of- State examination be a resident of mailing applies at the time state address.7 he at the time he takes the examination. not unmindful of residen- We are There plaintiffs were three involved by cy requirements have fallen first, gradu- Keenan. The Keenan, had wayside.8 should first note that We ated University from Duke School, Law require for- not that a Rule 1A:1 does had been admitted to in Texas eign seeking prac- admission Louisiana, and had become a resi- undergo any tice ing period. wait- dent of North 10, 1970, Carolina on June “permanent” residence His prior to the given bar examination to be contemporaneous may August 1970. No issue was raised as granting with the his certificate to the bona and, of his residence fides practice law. The authorities relied along with the other two plaintiffs, relate, main, by Titus present indicated a intention to remain a waiting Moreover, period requirements. permanent resident of North Carolina emphasized, per- as the cases heretofore and to second, law therein. The tain to the to take the' bar exami- graduated Burnham, from nation, the Universi- not and attorney. ty Pennsylvania School, Law li- regulate respective prac- tween and 5. the Rule result fact privileges inequality” tice “incidental does not individual ‘active’ members of the bar, e., attorneys i. make it those offensive the Fourteenth who reside Phelps state, Amendment. have an v. Board of Educa- office and ‘in- members, e., tion, active’ 300 81 U.S. those so 57 i. resid- ing having L.Ed. an office therein. Such regulations are sufficient achieve pro- 6. The Board of Bar Examiners objective keeping attorneys desired any by revoking hibited § 54-72 subject authority all times license issued been after admitting court.” qualification any init court. Shapiro permitting Thompson, addition to 1A :3 revo- (one- (1969) S.Ct. year cation of without exam- L.Ed.2d license issued ination, empowered §§ courts condition 54-73, 54-74, eligibility to revoke license welfare as af benefits practice law, hearing, fected after for conviction constitutional to move ' felony, corrupt unpro- state); malpractice, Carrington of a state to Rash, conduct, being duly 89, 775, fessional 380 U.S. li- 85 S.Ct. 13 L.Ed. (1965) (residence qualifications 2d censed. 675 barring personnel armed service who are pointed 7. As was Potts v. Honorable per domiciled and intend to make their Hawaii, Justices state); manent home Harman v. Fors D.C., F.Supp. 1392, (1971- 332 1398 senius, 528, 1177, 380 U.S. 85 14 judge court) : three “Not all successful (1965) (requirement L.Ed.2d 50 in fed practice applicants bar after admis- filing eral election of certificate resi too, many (and sion. Then states United prior election). dence six to months distinguish Courts) States District be- They York, quiries practice which make. and state law New to censed language Judge Nevertheless, rely upon residing Craven’s therein. was applicable present to to the intention Keenan10 indicated Burnham As Vir- permanent take the bar examination. resident to become uphold- ginia Supreme said' in practice therein. Carolina and North graduate ing residency requirement Mitchell,9 on third, was a The School, admission, University think that Vir- resided date Law “We Stanford regulat- subject ginia’s California, interest in the had been admitted and legiti- legal ing profession didHe is both practice in and Iowa. California application compelling resi- take and that our mate and not file a formal although he, dency like rule direct and bears a substantial examination present object others, inten- be attained —to had indicated relation grant- in- Burnham Keenan and were secure the citizens of tion. stable, and, pursu- formed, responsible injunction preliminary bar.”11 ed a passed thereto, successfully took and ant Titus, least, seeks is to attain What at residency re- the bar examination. per- ruling which will a multi-state bar affect- quirement of months then twelve located, any attorney, mit wherever their license. ed the issuance of states, practice fifty the attor- morally plain- capacity ney comfort for the fit has the find little is We reading “capacity” prac- of Keenan. tiffs from a careful writing Judge opinion law, according Craven, in to both Titus and tice Yeager, Keenan, Brown, usually to Rinaldi v. found in their refers can be 1497, passage L.Ed.2d 86 S.Ct. a bar examination U.S. successful (1966), where is stated: in a or of Co- state the District perhaps coupled lumbia, inten- with an require does not “The Constitution open tion to where office state things in fact which are different * * * practice. seek admission We though they treated as * agree * * cannot that the several states leg- Hence, were the same. bearing so should be limited in mind may impose special islation burdens comity essentially reciprocity or is upon defined classes in order discretionary a state function in deter- permissible achieve ends. But given mining pro- who should Equal require Protection Clause does fession. defining leg- subject that, in a class islation, the distinctions 1969, Court, Shapi- drawn have to the ‘some relevance Thompson, 618, ro v. 394 89 S.Ct. purpose classification (1969), 22 L.Ed.2d 600 declared ” made.’ one-year require- invalid the welfare present jurisdictions The crux of in ments of case lies several insofar “waiting period” aspect the contention advanced Titus both prerequisite capability and Brown which is as a to welfare benefits was Shapiro fitness to law are the sole in- is' concerned. What do did not comply seeking 9. Mitchell Burnham failed to with other re- were not quirements comity reciprocity, of the Board and denied al- though permit relief. North Carolina does same under certain conditions. Judge licensing 10. “In Craven attor- said: Keenan, neys constitutionally supra, F.Supp. there is one Even at permissible objective: express opin- states, n. the assur- “We upon validity capable ion ance that constitutional requiring residency fit to law.” He then rules cites Examiners, language Bar examination or of admission or Schware v. validity pre-admission term 1 L.Ed. the residency short applicable designed to insure 2d 796 also personal right and contact the bar interviews take the examination. applicant.” significant to note that Keenan and residency. Supreme requirement of ease reached destroy the sel. When writing majority, for of a Court it was dismissed want Mr. Justice for the In 638, question. uphold- 21, federal note 394 U.S. substantial Brennan inserted stating: ing 54, majority stated Rules 41 and was that neither the rule nor the statute validity imply no view the “We range “beyond the ac- allowable of state require- waiting-period or residence tion Amendment” under the Fourteenth eligibility determining ments given by and that Supreme reasons the Kansas * * * prac- to obtain a license Court the rules cannot * * * profession and so tice a disregarded.12 significantly, More requirements may pro- forth. Such per opinion curiam states: compelling mote state interests on may “Nor does the fact that Rules other, hand, or, may one on the not be in result ‘incidental ine- individual penalties upon the exercise of the con- quality’ make them offensive right of travel.” stitutional interstate Fourteenth Amendment.” approach The the issues closest Walton, supra, While Martin v. Walton, presented here inis Martin v. never been reversed even criticized 1, 7 82 S.Ct. L.Ed.2d U.S. Supreme Court, United States it was subsequent decided to Schware subject acceptance Sams v. upon which Titus and both Brown stren- Valley Hospital Ohio General Associa uously rely. dissenting opinion The (4 Cir., tion, 1969). 413 F.2d 826 Cir Douglas, Mr. Justice Mr. Jus- Judge Bryan, cuit a member of the gives concurred, tice Black the facts present court, writing opinion and, accept dissent, were to we majority, said, quoting after directly apply plaintiffs would Maryland, from McGowan v. 420, 425-426, good herein who are both moral char- 81 S.Ct. 6 L.Ed.2d proficient acter and are 393: more detailed facts be obtained “Illustrative of this doctrine are the Supreme an examination of the Kansas holdings that if there ais rational ba- reported nom, sub Martin v. Da- therefor, separate sis treatment of vis, 187 Kan. 357 P.2d 782 professionals calling even of the same pertained The rule there under attack permissible. instance, finding For regu- attorney, that an ground standings for the difference practicing larly Kansas, outside of bar, at the the Court refused to strike permitted Kansas down, upon Equal Protection association with an who had Clause, Kansas’ denial of a resident been admitted to the bar of Kansas. attorney’s right prac- licensed pointed Court of Kansas tice, associate, with a Kansas in her attorneys two classes of had because, although having courts an of- involving been created—one members of Kansas, practiced fice in regularly he regularly Kansas en- who were Walton, Missouri. Martin v. gaged in the in another 7 L.Ed.2d 5 required state and who were to associate (1961).” including local other counsel—the mem- perhaps unnecessary While regularly bers the Kansas bar not en- in the fi- gaged ease, nal determination of the elsewhere who Sanders v. required Russell, (5 Cir., 1968), were not 401 F.2d 241 to associate local eoun- af- eign attorney right appear pro 12. As ob- served, and, may constitutionally Jiao vice if a without local counsel token, deny deny attorney, the same attor- of and li- resident ney Kansas, generally appear censed its agrees merely unless become a courts resident without local counsel regularly practices elsewhere, admission. because he may deny follows a state a for- right require opinion the matter of a does consider upheld firmatively comity and, part, in states: foreign local coun- attorney associate down were struck court anywhere What sel. has never been rule “It the ef- requirements to two additional person that, simply a has been because by pro appearance vice hac a fect that practice of in the courts admitted Indiana, only one attorney permitted in was automatically an must ad- period during any twelve-month case of New York. the courts mitted to (cid:127)» * * provided a rule which and a further Many rules of do have states pro foreign not make could applicants in comity of admission for appearance federal court in the states, vice hac standing good from other Mississippi admit- he had been unless obligatory. If are not rules such state for bar of another ted admitted were Wasserman stated, Judge Dyer years. As least five of Arkansas and the State courts of right not involve comity the case did practice there, do he could resident courts, or in the state law recognized as are such acts .right general to a federal District in the United States rules right attorneys court, or district District for Southern Court pro as- hac vice without to be admitted appellate Admission to California. locally counsel. admitted sociation with system which federal courts Implicit opinion fact that is the covering several limits have territorial underlying purpose the district different the nation involve states or ap- unduly limit the court rule was to principles.” rights attorneys pearance of civil why principles, should these Tested assuredly factor which states —a require a court to state a federal court apply to either Titus Brown. does not practice application to approve law recognizes the interest of Sanders valid present- generally here under the facts regulating qual- the district court do invitation to decline the so. ed? We counsel, their ifications and conduct availability right” “claim of to admis- Plaintiffs’ papers, for court service of Virginia disciplinary sion to the bar consid-- amenability was and their proceedings. Laws, ered, by analogy, Brooks v. points It out that nonresi- U.S.App.D.C. 367, F.2d 18 lawyers dent remain in the who said, significant “There is no inherent any period where for time and arises who do their not confine within qualification the rules has pro after vice of their hac admis- limits subject been established.” appropriate sion are action for unauthorized of law. points Titus instances of Application Wasserman, inequality.” In the 240 “incidental individual It is (9 1956), Wasserman, Cir., attorneys quite F.2d 213 true that there are re good standing siding Maryland, member bar the District Co lumbia, probably Eastern District Arkansas and West Kentucky, Tennessee, Appeals the United States Court of and North Caroli Circuit, applied na, successfully passed the Ninth the chief who judge received their license United States District although and, Southern District of Cali- to taining main Virgin permission fornia for residence in office or generally time, A rule enter court. ia at this associating provided latter court court without local counsel. required good Maryland be member true that likewise standing attorneys State Bar District are more of California. of Columbia conveniently Wasserman did not meet in North test. located to courts dicta, attorneys While much of the discussion is ern than located right upon impede to' travel. it But this evades the or Norfolk. Roanoke appears to be some conflict question. must have some rules While States (ra- law, regulate practice of even the “traditional test” as whether every “compelling relationship) or state tional concede Titus and Brown agree Virginia appropriate, re- we with practitioner could interest” is in be Virginia Supreme pass be- Court of that both quired to the bar examination Virginia any practicing court. cases. exist these fore agree with Titus do not where We applied reciprocity by As Maryland that he cannot sit his states general requirement in most it is a give any client advice office reside, applicant must at states that the touching Virginia every in- Not law. admission, application the time of involving a transaction tied to stance seeks admission. in the state in which he Virginia practice constitutes the 8(d). respect A.L.R.2d 51 With § interpret We do not the words therein. Titus, the courts of he would have “practice in such a limited law” sense. bar; Virginia maintain a nonresident authority imposed certainly a doubtful VanZant, Lipman v. F. Both 329 Mosness, any court. Matter of 39 1970) Suffling Supp. (N.D.Ga., 391 509, Am.Rep. 55; 51 A.L.R.2d 20 Wis. Bondurant, (D.N.M., F.Supp. v. 339 257 1219.13 1972) judge court cases—the res —three requirements the time ad idence at interesting that, It is to note course, upheld. is, mission were It Brown, respect to Titus and both true that a discussion of these cases gen seek admission points purpose to the fact Virginia reciproci erally reason residency requirement permit was to ty. statute, 54-67, Code § investigation applicant. an Virginia 1950, amended, vests recognized Supreme Virginia Court of Virginia discre argument, pointed Titus’ but out that grant a exam tion to certificate without Titus has said that he does not intend 1A:1, promulgating ination. Virginia and, reside in at time merely therefore, he falls within the rule in what, requirements were neces set forth sary Lipman intervenor, residing where an of its dis to command the exercise but, state, out of the was denied relief Assuming arguendo cretion. footnote, in a later the court observed residency practice of law and full-time that the intervenor had become a resi unconstitutional, are and, Mississippi dent of if otherwise we not back to the exercise discretion qualified, would be entitled take mandatory permissive which is and not next bar examination. unless, course, the discretion exer so arbitrary, We see no cised unreasonable or dis up- material distinction in holding request residency requirements criminatory? applied to a As at taking registration pro time of for a as a a bar certificate residency requirements engineer, Virginia fessional has had oc for the admis- permissiveness attorney by sion of an reciprocity. casion to consider It is that, exercising granted Spindel our reciprocity view under v. the discre- tionary Jamison, admitting function of S.E.2d 205 199 Va. attorney im bar of There is no vested reciprocity, Hemmings, posed In Mercer v. (Fla.) time of admission held is not in So.2d violation Equal public Clause, Protection that out-of-state certified ac- nor does unnecessary quasi-state to consider that an is a the rea- soning Virgin Islands and one be an officer of Bar Ass’n officer cannot (cid:127) Dench, F.Supp. (D.V.I., 1953), two state courts at same different appeal Cir., (3 dismissed 215 F.2d 810 time. 1954), pointed where the district court indigent person. Un- as counsel for to have no vested had countants reasoning Brown, accountancy a resi- like even der board of Florida employed ain full- merely dent because certificates issue position of Colum- in the District held certifi- applying same persons respond hardly required bia, could granted proper authorities cates appointment. the call such jurisdictions. other might legal right the a court have While Blumstein, 405 U.S. Dunn inWhile Titus, upon Brown it is either or to call 31 L.Ed.2d unlikely highly a would be that such call rejected Supreme as Court the residing attorney forthcoming to as an residence durational a unconstitutional Montgomery County, Maryland, or an in prerequi- year a one attorney m. to from a. who works 9:00 emphasized the court vote, to the site p. jurisdiction and is in another 5:00 m. residence bona between difference fide requirements readily available. not requirements durational residence and Virgin- attorney resident of be a that an clearly a requirements, stated that practice in the Common- full time ia and light impose the to standards state had treatment to the tend rationalize wealth voting rights residence in of bona fide attorneys equal practicing on an all think that has acted cases. We basis. rationally compelling a state and with residence, standing alone, True, is insisting any foreign that at- interest emergencies. guarantee availability in seeking torney, generally, law necessarily that the Nor does it follow with his with as contrasted association entirely justified in is rule basis, case-by-case on local counsel high protection. The terms client express per- must intention to reside attorney can of an best standards ethical manently in and devote full his begins after be maintained practice of time to the law therein. In- a stake of the bar have all members deed, know of no we other means frequently Lawyers community. are the goal responsible the of a achieve community resident and a leaders in particular state. continuing attorney have interest will argument follow difficult society and the of 'local success impedes right 1A:1 community life reason of quality of Any travel. generally family resides the fact that his right Virginia. of travel Moreover, the residence in the area. right ap- The Rule touches his attorney’s interest reinforces pear generally in court and assuredly applica- reputation. While Virginia. Brown, there are to either Titus or ble attorneys who admitted sug- In addition to the illustrations subject to dubious are rather sometimes gested by Virgin- attorney may acts, and a resident ia, ethical recognized it is now fact that some community with informal confronted attorneys, especially in the criminal may be effective even sanctions which degree field, have attained a marked though are not taken. formal sanctions publicity fame reason of in certain acknowledged that an attor- it is While litiga- cases. Because their extensive separate ney lo- and work tion, reside increasingly it has become difficult state, majority cales within vast hearing to schedule matters and trial integral attorneys part of and, are an having counsel, without local community they maintain wherein would result in state and federal courts office. exercising presumably arbitrary action forcing legal matters to trial. Control Familiarity over nuances with local impossible. docket would be next requirements of resi- assured foreign attorney assuredly would dence and full-time not be appointment amenable to a attorneys, court Titus in- Some Brown and grasp eluded, care within its borders. have sufficient wisdom cal available right vary noted, practices But, local customs and as heretofore county city payments Shapiro v. in each to some extent welfare Virginia. attorneys, perhaps Thompson, swpra,, to medi Other seeking by reciprocity Doe, from a constitutes a cal treatment under purported where the admission marked distinction to the cope notably low, plaintiffs. are we are unable claims of these And while legal general agree conception “liberty” and a knowl- such edge nuances ex of the state which should not be limited freedoms plicitly Rights, There are named in Bill of we cogent seek admission. vesting reasons for a wide discretion as Rule 1A:1 cannot conclude that comity. admission under rules of is an arbi Acknowledging many trary purposeless or restraint lib practicing attorneys erty who should be em- to travel. Nor does ployed differing endeavor, persons other some field of treatment between taking it nevertheless follows that the has a bar state examination and .those very seeking regulating generally substantial interest in under comity the principles reciprocity law within of its confines. of or adopted merely Rules Equal cannot be to ac- constitute a violation Pro capable Clause, commodate the most ethical tection as that clause never attorneys. require equal construed been treat persons despite differing ment of all cir Plaintiffs direct our atten cumstances. recently tion to the decided abortion For herein or- stated, reasons an reading cases.14 A careful of these dismissing der will be entered these ac- opinions us to leads conclusion against tions with costs assessed inapposite. wholly. are It is true plaintiffs. “compelling that the state interest” test applied determining was there that an MERHIGE, Judge (dissent- District abortion, committed within the trimester ing cases). in each of said period following pregnancy, solely was my Because view the of facts of these patient matter for the licensed her applicable cases and the law thereto physician. essence, Roe declared that causes me to reach a conclusion differ- right15 a “fundamental” was vested in expressed by my ent than that col- expectant mother, requiring thus leagues, respectfully I must dissent. application “compelling interest” My view of the case is that the issue test. residency As requirement to the presented is not whether the prospective of the sidering Doe, mother in in con complains rule of which Titus or the re- majority of travel the quirement that an for admis- opinion significantly points that, open sion an office for the full-time while performance invalid toas of law, of of which Brown com- abortion, kind, “a of this plains, legitimate is related to in- state course, could be deemed to have some Admittedly Virgin- terest. State relationship availability post- to the ia has the to establish standards procedure care medical for the aborted governing attorneys patient.” What did practice law, provided doing in so it does approve not potential a limitation to person exclude a from the general residents of a state of medi any occupation or of law from other in a 14. Wade, 113, Roe v. opinion 93 S.Ct. In our is no “funda- 705, Bolton, 35 right” foreign L.Ed.2d 147 and Doe v. mental of a 410 U.S. 93 every merely 35 L.Ed.2d state be- (both January 23, 1973). capable good decided on he is cause and of moral character. se- contravene Code Section 54-74 identical—to for reasons that manner in- equal protection cure to the citizens of formed, process or the due stable, responsible bar. the 14th amendment clause therefore, follows, the,purposes for v. Board See Schware Constitution. 238-239, being identical, Examiners, the rule and statute U.S. Law imposed (1957). L.Ed.2d 796 77 S.Ct. seeking attorneys be admitted concurring difficulty My with rule, compared the re- when majority opinion the issue' that I view Virgin- quirements imposed by virtue treatment the different to be whether relating to admis- ia Code Section 54-74 reciprocity applicants, such as accorded sion are so different herein, plaintiffs vis-a-vis the named assigned purposes and unrelated tak- are admitted virtue those who invidiously discriminatory. as to be ing ra- examination bears the bar equal protection requires legitimate clause related to a basis tional more of a state law than nondiscrimina- interest. tory application within a class estab- Virginia has Supreme Court of Yeager, See Rinaldi v. lishes. object rule stated 16 L.Ed.2d 577 question to the citizens to secure imposed There is also a re-' informed, sta- the State quirement rationality of some in the na- Applica- ble, responsible bar. See singled ture class out. A classifi- Titus, tion 191 S.E.2d 213 Va. always must dif- cation rest some 798, the a state declares at 802. Where ference which bears a reasonable and law, purpose left room is of a rule or no just respect relation to the act any purpose it other conceive proposed the which classification is and Walton, Martin v. 368 U.S. serve. See 25, arbitrarily can never made be and with- (1961). 1, 28, 7 L.Ed.2d 5 82 S.Ct. McLaughlin out such basis. See v. Flor- majority opinion to me that the seems ida, at 379 U.S. 85 S.Ct. separate the set dismisses classifications 13 L.Ed.2d 222 by up by virtue of treat- its seeking inquiry prac- equal pro- the ment of those Judicial distinguished by reciprocity tice tection clause does the as not end with by showing equal application among seeking the from those taking by of the members class affected virtue of the statement, are 1A:1. Courts bound to reach and with the bland “There is a question sep- making determine the separate the rational for clas- whether basis sifications, [quan- arate classifications are . reasonable that] . . [and light cogni- purpose. titatively qualitatively fully of the I a am and there is requires zant the rule of law that the solid for drawn.” basis the distinction sep- widest discretion be afforded discussion that thereafter follows here, separate arate classifications established as no further mention makes giving every but even simply benefit of con- classifications but seeks to show might circumstance ceivable which suf- that of Rule 1A:1 separate legitimate fice to characterize the classifi- related to a state interest. cations as reasonable rather than arbi- argument repeat I I no have with this trary invidious, bearing and in mind the My difficulty conclusion. arises from purposes licensing procedures as my that there is view nowhere contained pronounced by majority opinion in basis Court and the different treatment treating differently, the classifications classes, I find no rational basis for any. nor can I conceive of It seems to beyond question purposes separate me the treat- classifications and that re- by seeks to ment afforded members achieve both application spective question of the rule in classes. is, full accord with admit- I am those is made. class, In the one that Judge expressed require- Craven by examination, there no views is

ted they Examiners v. Board Law of the State Keenan be residents ment that D.C., F.Supp. 1350 Carolina, Virginia- law. North order citing (1970), v. Bar Examin- only requirement Schware as ers, regard prospective 77 S.Ct. licensee is that a only le- that the L.Ed.2d 796 the time this state at be “resident of constitutionally permissible gitimate and application examination to take the licensing objection of attor- and intends to was filed with board capable neys “the is whether is a resident of this state continue as ” . . This taking fit to law . the time the examination ” which n he assigned by purpose applies identical As to . . . e., Virginia authorities, to secure reciprocity applicant, i. he be a resi- must informed, stable, responsible bar. dent and for there remain, intend to so provision him remove nothing either I find rolls should not do so. There is no relating Virginia’s opinions provision relating to whatsoever a suc- majority or in the the instant matter opening cessful bar examinee an office opinion justify separate classifi- for the full-time In- say quantitatively simply To cations. - deed, twenty-five percent over qualitatively basis there is a solid Virginia Bar, members the vast is to reach a for the distinction drawn majority of whom were ex- admitted assigning the reasons conclusion without amination, fail to reside within Arbitrary never therefor. selection can the state but have office within the justified calling it classification. state. There is no even McLaughlin Florida, supra, See office, maintain an nor is 283. There is restriction as to what ma- nothing magic phrase about the “invidi- ” jority “moonlighting.” refers to as Yet discrimination; encompass- ous what percent, upon the mere twenty-five applied es is a case classifica- payment of a de minimis license fee grounds wholly on ir- tion which rests year, each have the objective. relevant the state’s See others, admittedly while Maryland, McGowan v. qualified, one of whom at least lives 425-426, 6 L.Ed.2d 393 commuting Virginia, within distance of objective, To reach the same and the other a resident of applicants pass who take and ex- precluded exercising differently amination are treated than profession. of their qualified reciprocity applicants, chosen this discriminatory. I am in majority’s full accord with the statement that the I unnecessary, Constitution does not deem view require things majority’s holding ap- which are different that the test to be fact to plied be treated in law as if is one were of a rational basis distin- think, guished I however, same. compelling interest, in- from a sight stant majority case the prolong dissent, except loses note principle equal protection being that the case, clause that as I view require does defining treating sepa- rational classes basis rate classes the differently, obviously distinctions that are such treatment drawn must p'ass have some relevance to could not the strict distinction compelling which the classification state interest.

Case Details

Case Name: Brown v. Supreme Court of Virginia

Court Name: District Court, E.D. Virginia

Date Published: Jun 5, 1973

Citation: 359 F. Supp. 549

Docket Number: Civ. A. 700-71-R, 43-72-R

Court Abbreviation: E.D. Va.