Sackman, Matter of

• Decision Date: 12 August 1982
• Citation: 448 A.2d 1014,90 N.J. 521
• Parties: In the Matter of Jay Mark SACKMAN.
• Court: New Jersey Supreme Court

Page 521

90 N.J. 521

448 A.2d 1014

In the Matter of Jay Mark SACKMAN.

Supreme Court of New Jersey.

Argued Oct. 5, 1981.

Decided Aug. 12, 1982.

James A. Janowitz, New York City, a member of the New York bar, for appellant Jay Mark Sackman (Clapp & Eisenberg, Newark, attorneys; James A. Janowitz and Donald S. Zakarin, New York City, members of the New York bar, of counsel; Stuart L. Pachman, Newark, on the briefs).

Edwin H. Stern, Trenton, for respondents Supreme Court of New Jersey and Arthur J. Simpson, Jr., Acting Administrative Director of the Courts (Colette A. Coolbaugh, Trenton, attorney; Edwin H. Stern and Charles J. Hollenbeck, Trenton, of counsel and on the brief).

Arthur Montano, Haddonfield, for intervenor New Jersey State Bar Ass'n (Montano, Summers, Mullen & Manuel, Cherry Hill, attorneys).

Leslie Ann Chen, Moorestown, submitted a letter brief on behalf of herself as an intervenor.

PER CURIAM.

This ethics case presents a challenge both to the constitutionality and the wisdom of part of R.1:21-1(a). The challenged portion requires out-of-state attorneys to maintain their principal office in New Jersey. Attorneys who live in New Jersey need only a "bona fide" office. We do not reach the constitutional question. Exercising our plenary power over the practice of law, we have decided that henceforth all licensed New Jersey attorneys shall be treated alike, whether they live here or not. The only requirement for both, in order to practice in New Jersey, shall be that they maintain a bona fide office here.

Petitioner, Jay Mark Sackman, is a resident of New York City and is licensed to practice law in New York and New Jersey. He is the sole proprietor of the law firm of Jay Mark Sackman, and maintains four offices for the practice of law: in New York City and Westbury, New York, and in Hackensack and Freehold, New Jersey. An appreciable portion of his practice is devoted to New Jersey clients, many of whom are participants in a prepaid legal services plan for which petitioner provides legal representation. The plan is available to employees for whom Local 1115 Joint Board is the collective bargaining representative. ¹ Eligible members include residents of New York and New Jersey who work in one of the two states. In addition to members of this plan, Sackman represents some other New Jersey clients.

Mr. Sackman staffs his New Jersey offices with two attorneys licensed to practice law in New Jersey who are domiciliaries of this State. They provide the majority of the services in the New Jersey offices. The work is reviewed by petitioner, who performs most of his administrative and supervisory work in his New York City office. He spends at least one day a week in his New Jersey offices and his Long Island office, ² and estimates that he devotes approximately 25 percent of his total time to clients who either live or work in New Jersey.

On November 28, 1978, Sackman received a letter from the New Jersey Board of Bar Examiners reminding him that as a non-domiciliary of New Jersey, he was not eligible to practice law in New Jersey and could be disbarred under R.1:21-1(a) if one of his New Jersey offices was not his principal office. This was followed by a more expansive letter of inquiry into Sackman's multi-state practice from the Division of Ethics and Professional Services. Petitioner filed an action against the New Jersey Supreme Court and the Administrative Director of the Courts in Superior Court, Chancery Division, Bergen County, on March 20, 1979, challenging the constitutionality of the rule. He alleged that the rule violates the Privileges and Immunities Clause, Art. IV, § 2; the Commerce Clause, Art. I, § 8, cl. 3; and the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution.

Under an agreement between the parties by which a record was established for review, the constitutional issues were placed directly before this Court. The petitioner executed an affidavit in which he set forth an account of the facts relevant to the controversy; the Attorney General did not contest them. This Court granted petition to review the validity of R.1:21-1(a) on June 10, 1981. 91 N.J. 236, 450 A.2d 559 (1981). On September 2, 1981, Leslie Ann Chen, temporarily licensed to practice law in New Jersey, was granted permission to intervene in the matter. ³ Under rules that have since been revised, Ms. Chen had sought full admission to the New Jersey bar despite her inability to comply with the domicile or principal office requirements of R.1:21-1(a).

The challenged rule was adopted by this Court pursuant to its power to promulgate rules for admission to the New Jersey bar. N.J.Const. (1947), Art. VI, § II, par. 3. The rule provides in part:

(a) Qualifications. No person shall practice law in this State unless he is an attorney, holding a plenary license to practice in this State, is in good standing, and is either domiciled and maintains a bona fide office for the practice of law in this State or, if not domiciled in this State, maintains in this State his principal office for the practice of law ...

For the purpose of this section, a bona fide office is a place where the attorney or a responsible person acting on his behalf can be reached in person and by telephone during normal business hours. A bona fide office is more than a maildrop, a summer home which is unattended during a substantial portion of the year, or an answering service unrelated to a place where business is conducted. [R.1:21-1(a) ].

It thus establishes a more stringent requirement for non-domiciliaries practicing in New Jersey than for domiciliaries. Petitioner, a non-domiciliary, does not satisfy the rule: his principal office is in New York.

The rule has been amended several times and has been the subject of much debate. It represents the continuing effort to determine where the public interest lies when non-domiciliaries seek to practice law. If such practice poses a risk to the public, nowhere is it greater than in New Jersey. Located between two large states that are major commercial and industrial centers with New York City and Philadelphia directly on our borders, New Jersey is a natural place to practice for many residents of New York and Pennsylvania. Similarly, many New Jersey domiciliaries practice in those states.

For many years, New Jersey had required all attorneys who practiced here to be domiciliaries of the State. See R.R. 1:12-1(a) (Revision of 1959). In 1960, this Court embarked on a general review of the rules of court by appointing the Supreme Court Coordinating Committee on the Revision of the Rules of Court that led to the Proposed Revision of the Rules Governing the Courts of the State of New Jersey III (November 1966). The Proposed Revision addressed the problem that R.R. 1:12-1(a) created for lawyers who maintained their practices in New Jersey but wished to live in a neighboring state. Id. at 74. The Committee proposed a rule that required either domicile or "regular attendance at an office in this State" as a means of permitting practicing New Jersey attorneys to live elsewhere while preventing occasional practice by those who practiced primarily in another state and thereby, according to the Committee, lacked "familiarity with [New Jersey] law and its developments." Id. The Committee suggested that the "regular attendance rule might be substituted altogether for the domicile requirement, as mere domicile would not prevent occasional practice by a domiciliary attorney who practiced regularly in another state." Id.

The "regular attendance" proposal provoked considerable criticism. Pressler, Rules Governing the Courts of the State of New Jersey 87 (1969) (hereafter Pressler, 1969 Court Rules ). It was perceived as ambiguous, open to an interpretation that would allow attorneys who regularly practiced in New York or Philadelphia to meet the requirement merely by, for example, attending a New Jersey office once a week. 90 N.J.L.J. 164 (1967). See also Pressler, 1969 Court Rules 87. An editorial in the New Jersey Law Journal suggested that the proposed rule could have an adverse impact on the economic interests of the New Jersey bar as well as implicating the "general public interest in securing qualified and committed counsel." 90 N.J.L.J. 164 (1967).

Subsequently, pursuant to a Committee recommendation, the Court revised the rule to require either domicile or maintenance of a principal office as a condition to practicing law in this State, R.1:21-1 (1969), thus "reject[ing the] implicit approval of a multi-state practice ...." Pressler, 1969 Court Rules at 87. The rule was again amended in 1978 to require a domiciliary to maintain a bona fide office in this State. Pressler, Current N.J. Court Rules, Comment R.1:21-1 (1982). The additional requirement was seen as a means of controlling the occasional practice of law by domiciliaries who primarily practiced in other jurisdictions or who practiced law only sporadically in New Jersey. Id.

"Bona fide office" was not initially defined, a failure that led to another amendment in September 1981, upon the recommendation of the Committee to Evaluate Bar Admission Requirements, chaired by former Justice Nathan L. Jacobs (Jacobs Committee). ⁴ The definition states:

For the purpose of this section, a bona fide office is a place where the attorney or a responsible person acting on his behalf can be reached in person and by telephone during normal business hours. A bona fide office is more than a maildrop, a summer home which is unattended during a substantial portion of the year, or an answering service unrelated to a place where business is conducted. [R.1:21-1(a) ].

The "domicile/bona fide office," "non-domicile/principal office" distinction was maintained. In its commentary accompanying the suggested revision, the Jacobs Committee recommended retention of the "principal office" requirement as a "reasonable...