Goldfarb v. Supreme Court of Virginia

• Decision Date: 03 July 1985
• Docket Number: No. 84-1928,84-1928
• Citation: 766 F.2d 859
• Parties: Ronald L. GOLDFARB, Appellant, v. SUPREME COURT OF VIRGINIA; Allen L. Lucy, Clerk, Supreme Court of Virginia; and Robert N. Baldwin, Executive Secretary, Supreme Court of Virginia, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 859

766 F.2d 859

54 USLW 2046

Ronald L. GOLDFARB, Appellant, v. SUPREME COURT OF VIRGINIA; Allen L. Lucy, Clerk, Supreme Court of Virginia; and Robert N. Baldwin Executive Secretary, Supreme Court of Virginia, Appellees.

No. 84-1928.

United States Court of Appeals Fourth Circuit.

Argued March 6, 1985.

Decided July 3, 1985.

Cornish F. Hitchcock, Washington, D.C., (Alan B. Morrison, Washington, D.C., John Cary Sims, on brief), for appellant.

Gregory E. Lucyk, Asst. Atty. Gen., (Gerald L. Baliles, Atty. Gen., Richmond, Va., James T. Moore, III, Senior Asst. Atty. Gen., Richmond, Va., on brief), for appellees.

Before SPROUSE and WILKINSON, Circuit Judges, and KAUFMAN, Chief United States District Judge for the District of Maryland, sitting by designation.

WILKINSON, Circuit Judge:

The Supreme Court of Virginia will admit an out-of-state attorney to the Commonwealth bar without examination only if the applicant intends to practice full-time in Virginia. The plaintiff, alleging that this requirement violates the Commerce Clause and the Due Process Clause, filed suit for declaratory and injunctive relief. The district court held that the rule does not exceed the authority of the Commonwealth or abridge the rights of the plaintiff, and it dismissed the complaint for failure to state a claim upon which relief could be granted. We affirm.

I

Ronald L. Goldfarb has lived in Virginia and practiced law in the District of Columbia for almost twenty-five years. ¹ After several clients asked that he represent them in Virginia, Goldfarb applied in January 1983 for admission without examination to the Virginia bar. The Supreme Court of Virginia, pursuant to Va.Code Sec. 54-67 and its Rule 1A:1(4)(d), permits admission without examination only if an applicant who has been licensed five years in another state "intends to practice full- time as a member of the Virginia bar." ² Because Goldfarb intended to divide his practice between an office in Virginia and an office in Washington, he did not satisfy the Supreme Court requirement and his application was denied in November 1983.

The Supreme Court decision left open to Goldfarb two paths by which he could practice in both Virginia and Washington, D.C. First, he could take the Virginia bar examination: if he passed, he would then be free to open a part-time office in the Commonwealth. Second, he could appear pro hac vice when asked to represent clients in Virginia, a procedure that he had previously followed but that he found unattractive due to the cost of paying affiliated local counsel.

Goldfarb instead pursued the path of admission without examination. He filed suit in the district court for the Eastern District of Virginia against the Supreme Court, its clerk, and its executive secretary. His complaint asserted that he would be admitted to the Virginia bar but for the restriction of Rule 1A:1(4)(d), a restriction that placed an unreasonable burden on interstate commerce and deprived Goldfarb of due process of law. He asked that the court declare the rule to be unconstitutional and that it enjoin the Supreme Court from enforcing the rule and denying Goldfarb admission to the bar. The defendant moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted the motion, and Goldfarb appealed.

II

Goldfarb first suggests that Rule 1A:1(4)(d) violates the Due Process Clause of the Constitution. He notes that "a state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law." Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). The full-time commitment required for admission without examination, according to Goldfarb's analysis, shares no rational connection with his ability to practice law.

This due process challenge to the Virginia rule has been authoritatively rejected in Brown v. Supreme Court of Virginia, 359 F.Supp. 549 (E.D.Va.), aff'd mem. 414 U.S. 1034, 94 S.Ct. 533, 38 L.Ed.2d 327 (1973), a case essentially identical to the present action. Brown raised the same due process claims that Goldfarb now urges, along with additional equal protection arguments, when the Supreme Court of Virginia denied his application for admission without examination because he intended to divide his time between Virginia and Washington, D.C. Application of Brown, 213 Va. 282, 191 S.E.2d 812 (1972). A three-judge federal panel upheld the rule against Brown's constitutional challenge, finding that the requirement rationally served the interest of Virginia in insuring the competence of attorneys practicing in the Commonwealth. Brown v. Supreme Court of Virginia, 359 F.Supp. at 561-562. The summary affirmance of this decision by the United States Supreme Court necessarily agreed that a rational basis lay beneath Rule 1A:1(4)(d), and we may not re-open that foreclosed question. See Hicks v. Miranda, 422 U.S. 332, 344-45 and n. 14, 95 S.Ct. 2281, 2289, and n. 14, 45 L.Ed.2d 223 (1975).

We recognize that Goldfarb's experience and familiarity with state law may be such that the full-time practice requirement is unnecessary to guarantee that he would ably serve the clients and courts that would depend on him in Virginia. But surely he suffers no more from the presumptions of Rule 1A:1(4)(d) than did his counterpart in Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5 (1961). The petitioner in that case lived in Kansas and practiced in Kansas City, Missouri. A Kansas rule required him, as a part-time practitioner, to affiliate with local counsel for his Kansas appearances even though he had passed the Kansas bar examination, had published an article on Kansas procedure, and had served as city attorney for his Kansas town and as a member of the Kansas Board of Tax Appeals. See Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (1960). The Supreme Court dismissed his due process challenge to the Kansas rule for want of a substantial federal question, holding that the full-time practice requirement--both on its face and as applied--was "not beyond the allowable range of state action under the Fourteenth Amendment." Martin v. Walton, 368 U.S. at 25-26, 82 S.Ct. at 1-2. The same deference to state regulation is appropriate here. Our role is not to conduct an individual inquiry into Goldfarb's qualifications; Virginia offers a special hearing on that question through its bar examination. Our role is instead to determine whether Virginia has adopted a rational approach to the serious problem of attorney incompetence. We can only conclude that it has.

III

The existence of a relationship between Rule 1A:1(4)(d) and a legitimate state goal resolves Goldfarb's Due Process Clause challenge. When a permissible purpose for the regulation has been established, we must still address its effect on interstate commerce. In that review, the rule "will be upheld unless the burden on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1969). We hold that Rule 1A:1(4)(d) does not constitute such an undue burden upon interstate commerce.

The "putative local benefit" of Rule 1A:1(4)(d), as noted earlier, is that the full-time practice requirement promotes familiarity with Virginia law among attorneys who have not passed the state bar examination. Brown v. Supreme Court of Virginia, 359 F.Supp. at 561-562. This is surely a legitimate state purpose. The Supreme Court has recognized "the traditional authority of state courts to control who may be admitted to practice before them," Leis v. Flynt, 439 U.S. 438, 444 n. 5, 99 S.Ct. 698, 701 n. 5, 58 L.Ed.2d 717 (1979) and "their broad power to establish standards for licensing practitioners and regulating the practice of professions," Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975). At a time when proposals for specialty certification and continuing legal education have emerged to address public concern about lawyer competency, we decline to derogate the importance of Virginia's attempt to ensure that those who practice in its borders have some knowledge of its law.

In promoting this interest, Virginia could have required that all lawyers, including Goldfarb, take and pass the bar examination. Goldfarb concedes that this maximum burden lies within the state's power to impose. Virginia, however, has elected to provide the full-time practice option in lieu of an examination for those lawyers who have practiced elsewhere for five years. The state can hardly be penalized for offering a choice between a requirement it can concededly exact and one that many attorneys may find less onerous.

Goldfarb alleges that a less comprehensive bar examination, an in-state office, or a brief course in state law are means which would adequately serve the state's purpose while imposing a lesser burden on the flow of interstate commerce. "Less drastic means" analysis may play an important part in Commerce Clause jurisprudence, if the court finds that the means chosen by the state impose a substantial and unacceptable burden. See Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 297, 95 L.Ed. 329 (1951) ("[the challenged regulation] discriminates against interstate commerce. This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available"). This does not imply, however, that every regulation imposed pursuant to the state's police power must automatically undergo strict scrutiny of means if plaintiff is able to point to some effect, however indirect, upon interstate commerce. Here the...