v. Friedman

Decision Date20 June 1988
Docket NumberNo. 87-399,87-399
Citation487 U.S. 59,101 L.Ed.2d 56,108 S.Ct. 2260
Parties. Beach, its Clerk, Appellants, v. Myrna E. FRIEDMAN
CourtU.S. Supreme Court
Syllabus

Under Virginia Supreme Court Rule 1A:1, qualified lawyers admitted to practice in another State may be admitted to the Virginia Bar "on motion," that is, without taking Virginia's bar examination. The Rule requires, inter alia, that the applicant be a permanent resident of Virginia. Appellee attorney, a Maryland resident who practices and maintains her offices at her corporate employer's place of business in Virginia, applied for admission to the Virginia Bar on motion. The Virginia Supreme Court denied the application for failure to satisfy the residency requirement, concluding that, contrary to appellee's contention, the decision in Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205, which held that a residency requirement imposed on lawyers who had passed the State's bar examination violated the Privileges and Immunities Clause of Article IV, § 2, of the Federal Constitution, was not applicable in the context of "discretionary" admissions on motion. Appellee then filed suit against the Virginia Supreme Court and its Clerk in Federal District Court, alleging that Rule 1A:1's residency requirement violated the Privileges and Immunities Clause. The court entered summary judgment for appellee, and the Court of Appeals affirmed.

Held: Virginia's residency requirement for admission to the State's bar without examination violates the Privileges and Immunities Clause. Pp. 64-70.

(a) A nonresident's interest in practicing law on terms of substantial equality with those enjoyed by residents is a privilege protected by the Clause. This Court's precedents do not support appellants' contention that so long as an applicant has the alternative of gaining admission to a State's bar, without regard to residence, by passing the bar examination, the State has not discriminated against nonresidents "on a matter of fundamental concern." The Clause is implicated whenever a State does not permit qualified nonresidents to practice law within its borders on terms of substantial equality with its own residents. Cf. Piper, supra. Appellants' theory that the State could constitutionally require that all bar applicants pass an examination is irrelevant to the question whether the Clause is applicable in the circumstances of this case. The State has burdened the right to practice law, a privilege protected by the Clause, by discriminating among otherwise equally qualified applicants solely on the basis of citizenship or residency. Pp. 65-67.

(b) The State has failed to show that its discrimination against non-residents bears a close relation to the achievement of substantial state objectives. Rule 1A:1's residency requirement cannot be justified as assuring, in tandem with the Rule's requirement that the applicant practice full time as a member of the Virginia Bar, that attorneys admitted on motion will have the same commitment to service and familiarity with Virginia law that is possessed by applicants securing admission upon examination. Lawyers who are admitted in other States and seek admission in Virginia are not less likely to respect the bar and further its interests solely because they are nonresidents. To the extent that the State is justifiably concerned with ensuring that its attorneys keep abreast of legal developments, it can protect such interest through other equally or more effective means that do not themselves infringe constitutional protections. Nor can the residency requirement be justified as a necessary aid to the enforcement of Rule 1A:1's full-time practice requirement. Virginia already requires that attorneys admitted on motion maintain an office in Virginia. This requirement facilitates compliance with the full-time practice requirement in nearly the identical manner that the residency restriction does, rendering the latter restriction largely redundant. Pp. 67-70.

822 F.2d 423, (CA4 1987), affirmed.

KENNEDY, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. REHNQUIST, C.J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 70.

Gregory E. Lucyk, Richmond, Va., for appellants.

Cornish F. Hitchcock, Washington, D.C., for appellee.

Justice KENNEDY delivered the opinion of the Court.

Qualified lawyers admitted to practice in other States may be admitted to the Virginia Bar "on motion," that is, without taking the bar examination which Virginia otherwise requires. The State conditions such admission on a showing, among other matters, that the applicant is a permanent resident of Virginia. The question for decision is whether this residency requirement violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2, cl. 1. We hold that it does.

I

Myrna E. Friedman was admitted to the Illinois Bar by examination in 1977 and to the District of Columbia Bar by reciprocity in 1980. From 1977 to 1981, she was employed by the Department of the Navy in Arlington, Virginia, as a civilian attorney, and from 1982 until 1986, she was an attorney in private practice in Washington, D.C. In January 1986, she became associate general counsel for ERC International, Inc., a Delaware corporation. Friedman practices and maintains her offices at the company's principal place of business in Vienna, Virginia. Her duties at ERC International include drafting contracts and advising her employer and its subsidiaries on matters of Virginia law.

From 1977 to early 1986, Friedman lived in Virginia. In February 1986, however, she married and moved to her husband's home in Cheverly, Maryland. In June 1986, Friedman applied for admission to the Virginia Bar on motion.

The applicable rule, promulgated by the Supreme Court of Virginia pursuant to statute, is Rule 1A:1. The Rule permits admission on motion of attorneys who are licensed to practice in another jurisdiction, provided the other jurisdiction admits Virginia attorneys without examination. The applicant must have been licensed for at least five years and the Virginia Supreme Court must determine that the applicant:

"(a) Is a proper person to practice law.

"(b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination.

"(c) Has become a permanent resident of the Commonwealth.

"(d) Intends to practice full time as a member of the Virginia bar."

In a letter accompanying her application, Friedman alerted the Clerk of the Virginia Supreme Court to her change of residence, but argued that her application should nevertheless be granted. Friedman gave assurance that she would be engaged full-time in the practice of law in Virginia, that she would be available for service of process and court appearances, and that she would keep informed of local rules. She also asserted that "there appears to be no reason to discriminate against my petition as a nonresident for admission to the Bar on motion," that her circumstances fit within the purview of this Court's decision in Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985), and that accordingly she was entitled to admission under the Privileges and Immunities Clause of the Constitution, Art. IV, § 2, cl. 1. See App. 34-35.

The Clerk wrote Friedman that her request had been denied. He explained that because Friedman was no longer a permanent resident of the Commonwealth of Virginia, she was not eligible for admission to the Virginia Bar pursuant to Rule 1A:1. He added that the court had concluded that our decision in Piper, which invalidated a residency requirement imposed on lawyers who had passed a State's bar examination, was "not applicable" to the "discretionary requirement in Rule 1A:1 of residence as a condition of admission by reciprocity." App. 51-52.

Friedman then commenced this action, against the Supreme Court of Virginia and its Clerk, in the United States District Court for the Eastern District of Virginia. She alleged that the residency requirement of Rule 1A:1 violated the Privileges and Immunities Clause. The District Court entered summary judgment in Friedman's favor, holding that the requirement of residency for admission without examination violates the Clause.*

The Court of Appeals for the Fourth Circuit unanimously affirmed. 822 F.2d 423 (1987). The court first rejected appellants' threshold contention that the Privileges and Immunities Clause was not implicated by the residency requirement of Rule 1A:1 because the Rule did not absolutely prohibit the practice of law in Virginia by nonresidents. Id., at 427-428. Turning to the justifications offered for the Rule, the court rejected, as foreclosed by Piper, the theory that the different treatment accorded to nonresidents could be justified by the State's interest in enhancing the quality of legal practitioners. The court was also unpersuaded by appellant's contention that the residency requirement promoted compliance with the Rule's full-time practice requirement, an argument the court characterized as an unsupported assertion that "residents are more likely to honor their commitments to practice full-time in Virginia than are nonresidents." Id., at 429. Thus, the court concluded that there was no substantial reason for the Rule's discrimination against nonresidents, and that the discrimination did not bear a substantial relation to the objectives proffered by appellants.

The Supreme Court of Virginia and its Clerk filed a timely notice of appeal. We noted probable jurisdiction, 484 U.S. 923, 108 S.Ct. 283, 98 L.Ed.2d 244 (1987), and we now affirm.

II

Article IV, § 2, cl. 1, of the Constitution provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several...

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