FRAZIER v. HEEBE
Argument of Cornish F. Hitchcock
Chief Justice Rehnquist: We will hear arguments first this morning in No. 86-475, David C. Frazier v. Frederick J.R. Heebe, et al.--
Mr. Hitchcock, you may proceed whenever you're ready.
Mr. Hitchcock: Thank you, Mr. Chief Justice, and may it please the Court:
This case presents important questions about the practice of law and the administration of justice in our Federal district courts.
At issue is a rule of the United States District Court for the Eastern District of Louisiana which requires members of that court's bar to live or have an office in the State of Louisiana.
In order to focus on the precise nature of the dispute, it's useful to identify what this rule requires.
Under the rule, members of the Eastern District bar must be located in the Eastern District, the Middle District or the Western District of Louisiana.
And in order to see how the rule operates vis-a-vis the petitioner, it may be useful to consult the map that we prepared in our opening brief as an appendix at page 6A.
Mr. Frazier's application was denied because he lives and practices in Pascagoula, Mississippi, which is approximately 110 miles from New Orleans.
By contrast, a lawyer located in Lake Charles, Louisiana, which is 200 miles from New Orleans, may be admitted to the Eastern District bar, and a lawyer located in Shreveport, Louisiana, 300 miles from New Orleans, may also be admitted to the Eastern District bar.
Indeed, lawyers from Lake Charles or Shreveport may serve as local counsel for lawyers such as Mr. Frazier in practicing in New Orleans, even though they're twice the distance from the courthouse.
In our brief, we have advanced several reasons why we believe this rule is invalid, but it boils down to essentially one complaint.
As the Court of Appeals recognized, this rule is both overinclusive as well as underinclusive.
And however it may be analyzed, we submit that it does not advance the goals of lawyer competence and availability for hearings that are attributed to it.
In our view, this Court's decision in Supreme Court of New Hampshire v. Piper provides the proper analytical framework for deciding the case.
And in mentioning Piper, I want to focus exactly on what we are arguing and are not arguing.
We recognize that Piper was decided under the privileges and immunities clause of Article IV, which is a direct limitation on state action and not on federal action; and we are not making a claim for relief under Article IV.
What we are saying is that this rule is a violation of the due process clause of the Fifth Amendment.
And in urging the Court to so hold, we are asking the Court to employ the analysis that was used in Piper in the context of analyzing this rule, just as the Court has incorporated equal protection analysis as a component of Fifth Amendment due process.
There are several reasons why we believe such analysis is appropriate here.
The rule in the Eastern District of Louisiana, with its exclusion of lawyers from out of the state--
Unknown Speaker: Excuse me, Mr. Hitchcock, before you go any further, that's a little difficult to do, because the privileges and immunities analysis prevents discrimination between citizens from different states, rights, on the basis of statehood.
But the Federal Government does that all the time, and the Constitution specifically says when it is that the government can't discriminate between the states, in certain types of taxation for example.
But the government very often provides particular benefits or takes particular action which just affects one state and not others.
So how can you possibly apply the state discrimination concept of the privileges and immunities clause to the due process clause?
Mr. Hitchcock: --The distinction in this case, as opposed to traditional cases where Congress passes a law, or national body engages in linedrawing of that nature, is, we have here a rule that was adopted by a local unit of the Federal Government that is exercising delegated authority, not--
Unknown Speaker: Why would you treat that differently from something enacted by Congress?
I mean, supposing the regional director of the EPA in San Francisco adopts a particular rule.
Now, it may have problems with parochialism, but nonetheless, we treat is an exercise of delegated authority from the United States.
Mr. Hitchcock: --It is an exercise of delegated authority.
But when the line is drawn, for example, if the EPA regional officer said that only people in California could practice before us or something of that nature, when the linedrawing by a local entity is on the basis of state lines, there are problems that have been raised... that are raised by that of the sort that are implicated by the privileges and immunities clause.
And to that extent... it's one thing if national body had adopted restrictions of this nature, saying... making that kind of decision and that kind of linedrawing.
But it's another thing for a local unit of government, in... local unit of the Federal Government, in consultation with local lawyers in this case, to try to be exercising that kind of discretion.
Unknown Speaker: Well, do you agree that if Conress had adopted this, you would have no claim?
Mr. Hitchcock: If Congress had passed this rule, we would not be arguing that it should be analyzed under privileges and immunities analysis.
There would be equal protection arguments that would be made, but the problem here that we think should trigger the type of privileges and immunities analysis is the fact that it's a local unit of the government, using delegated authority, and that it has an exclusionary effect that the court has recognized raised problems requiring heightened consideration if it were enacted in a state court system.
Unknown Speaker: I don't know what you mean by a local unit of government.
I mean, that has some meaning applied to a state where you have a state constitution th8at gives municipalities certain powers, whether the... whether the county or whether the state government desires it, willy-nilly.
But... but in the Federal context, I don't know of any Federal local units.
I know of certain representatives of the Federal Government that exist on a local level, but they're all governed entirely by the will of the entire Federal Government.
That have no local autonomy, none of these units, as far as I know, including this Court.
Mr. Hitchcock: Well, in this case, when I refer to the local unit, I'm referring to the United States district court, which has rulemaking authority.
But unlike delegated authority in the context of agencies, there are possibilities of dealing with any such rules through the agency process.
In this case, the court has some degree... the local district court has autonomy in this respect.
It shares its rulemaking authority with this Court, but it tends to operate on parallel tracks.
Unknown Speaker: But you're arguing at the same time that this Court... you're urging as one of your points in your brief that we should exercise our supervisory authority.
Doesn't this necessarily mean that this is not a local unit?
Mr. Hitchcock: Well, the rule is autonomous unless, of course, it comes before this Court.
The rule, or the exclusion of nonresidence is final unless of course it comes before a higher body such as this Court which would also have the authority to regulate.
But the point is, that when rules of this nature are adopted at a regional level or a local level, I mean the exclusion is against residents of other states.
The Court has said, admittedly in the context of state discrimination, discrimination by state entities of government, that there are special problems.
The Court has also said in the equal protection area... and we've cited several of the tax cases from recent terms of the Court... that there are similar problems when the court... when state governments pass legislation also that discriminate or have the effect of charging higher fees or imposing burdens on out-of-staters as well, under equal protection analysis, which would apply in the context of Federal action as well.
But I think there are reasons, even if the Court should not proceed under the privileges and immunities clause analysis, for using a heightened form of scrutiny here.
There is no reason why it is that Federal district courts should be able to adopt exclusionary rules of this sort when the Court said in Piper that they cannot be adopted in the context of a state court system; particularly when the reasons that are given for this type of exclusion are the same that the Court considered and rejected in the Piper case.
The Court's decision in Hurd v. Hodge, which we cited, suggested that it... they said in that case, bad public policy, it wasn't constitutionally grounded, for Federal courts to be able to, in that case, enforce certain contracts that state courts couldn't; and it's bad public policy here to allow Federal district courts to adopt rules that could not be adopted in the state court system.
State court judges, no less than Federal judges, are concerned with the competence of the lawyers who appear before them.
They're concerned with the availability of having lawyers who can appear before them in cases.
And there is no reason for saying that there are special problems in the Federal court system that are cured by having this type of restriction on lawyers.
Unknown Speaker: Are you sure that it would be unlawful for a state to adopt the kind of rule the Federal court has here?
This is not, as in Piper, a restriction against residents of other... or against citizens of other states practicing within the state; it's simply a requirement that there be an office within the state.
Now are you sure that a state couldn't adopt that rule?
Mr. Hitchcock: I believe so.
I believe that the Court's decision in Piper and the reasoning in Piper is broad enough to include that.
Justice White's concurring opinion in that case read the Court as reaching that far, because the same problems that you have with exclusions based on residence appear also with exclusions... or with an in-state office requirement.
The in-state office requirement acts as a surrogate for a residence requirement.
What it does is, it requires lawyers from out of the state who practice out of the state to open an additional office in Louisiana, which is not a burden imposed upon local lawyers.
I mean, for Louisiana lawyers, an in-state office requirement is largely not much of a restriction and not much of a burden at all.
The chances are, they probably have it.
But for the court to require that out of state lawyers must have that office in addition, it places burdens on citizens of other states, which as a practical matter, are not imposed on local courts.
That was the holding of the New York Court of Appeals in the Gordon case which we cited, where the same option was available for people applying to the state court bar.
You could either take the New York State bar exam, you had to be either a resident of the State of New York to be admitted to the bar, or you had to practice in the state before you were admitted.
And the court reasoned that the same type of problems that are posed by a residence requirement are posed by the requirement that you must have an office in the state, when that's not imposed... or it's not as burdensome as it is on--
Unknown Speaker: What do you suggest we substitute for it?
If the state wants to preserve the kind of interest that it says is protected by the office requirement.
Mr. Hitchcock: --You mean the district court?
Unknown Speaker: Yes, 200-mile rule?
What possible rule could there be?
Mr. Hitchcock: Let me break that down into two parts, Justice Scalia.
I think Piper reasoned that one's location or one's distance from the court is not a reason for disqualifying someone for being admitted to the bar.
I think the Court answered that question in Piper when it said that there maybe some times, as a practical matter, when a lawyer cannot appear, when the lawyer is, as the Court put it, at a great distance from the court.
In those cases, local counsel may be required.
We submit that a rule which did have that kind of circular or circumferential approach, would be more closely based on the court's goal.
If it were 100 miles, or 150 miles, or 200 miles, that's closer in terms of the goal attributed to it, which is assuring that lawyers are available.
The vice with this particular rule, as we see it, is that it says, lawyers 300 miles west of New Orleans may be admitted to the bar and may practice without local counsel, but not lawyers who are only 100 miles to the east.
We submit that it cannot be said that lawyers from 300 miles away are more likely to come over to New Orleans, but not lawyers that are only 100 miles to the east.
And however the line may be drawn, 150 miles, 200 miles, it's probably likely to be more closely tailored to the goal than the current rule, which focuses on state lines, and excludes people who may be perfectly capable of practicing law.
Unknown Speaker: Mr. Hitchcock, do you think this rule would be acceptable if it limited admission to lawyers who were admitted in... who had offices or resided in the Eastern District of Louisiana?
Mr. Hitchcock: No, Justice Stevens.
Part of the problem is that even it you were to limit it to the Eastern District of Louisiana, it's narrower, but in this case, it has some of the same problems.
The Court of Appeals recognized in footnote six of its opinion that there are some lawyers in the Eastern District of Louisiana who are further away from New Orleans than Mr. Frazier.
The geography of districts is such that in many instances you may have these anomalies.
Let me give you a local example.
Let us suppose, for example, that there were a rule of this sort in the Eastern District of Virginia, which covers approximately the eastern one-third of the state, and which has divisions that sit in Alexandria, in Richmond, and in Norfolk.
And in-district office rule would mean that lawyers from Norfolk, Virginia, could come up and practice in Alexandria without restriction, whereas lawyers in the District of Columbia, which is only ten miles away, as opposed to 180 miles away, could not.
Now, that's in a situation where you have multiple districts.
You have other states where there's only one district.
So an in-district rule, say in the district of Kansas, would let lawyers from Western Kansas come into Kansas City, Kansas, and practice in the district court there, but not lawyers across the street in Kansas City, Missouri.
Unknown Speaker: If you require perfect tailoring, you can find some flaw in any rule that lays down any principle like that.
But our equal protection clauses in this area have never required perfect tailoring.
Mr. Hitchcock: What we're saying is, whatever kind of tailoring or rule may be adopted, the current rule does not satisfy.
300 miles in one direction, you're in; 100 miles in the other direction, you're not in, is not even close, we submit, even whatever anomalies may occur around the edges with a more closely tailored rule.
Unknown Speaker: Doesn't the same rule have to apply to Texas, Alaska, and Rhode Island?
Mr. Hitchcock: Yes... let me answer the question.
Unknown Speaker: That's going to be a little tough?
Mr. Hitchcock: I think what Piper recognized... I mean, you're right, Justice Marshall, but, again, I would break it down into two parts.
I think Piper said that one cannot be excluded from a bar Just because one is in Texas or Alaska or another state.
Piper also said that if lawyers are at a great distance, and if the court should determine that people more than 300 miles away are a great distance, then one could require Texas lawyers or Alaska lawyers to retain local counsel.
We're not challenging that.
What we're saying is that the linedrawing that has occurred here has created problems that... and does not advance the Court's goals in ensuring that lawyers are able to come down to New Orleans.
Unknown Speaker: I've been to some states that require you to belong to the bar of the county that you filed a case in--
Mr. Hitchcock: I'm sorry?
Unknown Speaker: --or to hire a lawyer who is a member of the bar of that county.
Mr. Hitchcock: To practice in Federal court?
Unknown Speaker: No, sir, in state... I said state courts.
Aren't there states that have that rule?
Mr. Hitchcock: I believe there are states where you are admitted by a particular county.
Unknown Speaker: And if you want to practice in the other country, you have to hire a local lawyer?
Mr. Hitchcock: --Well, I'm not sure to what extent that would survive the Court's decision in Piper.
I think that particular situation I think is addressed in the Court's decision in United Building Construction Trades Union v. the City of Camden, where certain jobs were reserved only for residents of Camden but not for people in other parts of New Jersey.
I think there might be problems in that nature, after the Camden decision and after the Piper decision, with that kind of county-based rule.
Unknown Speaker: xxx Louisiana?
Mr. Hitchcock: In Louisiana?
Unknown Speaker: Don't you have to belong to the parish to file a case in the parish?
Mr. Hitchcock: I'm not aware of it.
The rule here required membership in the state bar.
I am not sure that there are restrictions in terms that if you are admitted... or if you are admitted in Orleans parish, that means you cannot practice over in Baton Rouge.
I don't know the current requirement, but in this case, I don't think it's critical, because the rule says, you must have an office or reside somewhere in the State of Louisiana.
It's not specific by parish; it's not specific by district.
And that has caused the problems that we have attributed... that we have cited.
Unknown Speaker: Mr. Hitchcock, there is some coincidence, is there not, between this rule of the district court, and the extent of the subpoena power of that court?
Mr. Hitchcock: No, actually, the subpoena power extends further.
Under 45(e) the subpoena power would extend, to appear at... for depositions or trial extends 100 miles into Mississippi.
It was an argument that was stated in respondent's brief.
And so it's not perfectly contiguous with the state boundaries.
But I would point out again, the subpoena power raises issues that are somewhat different.
I mean, in that situation people who are disadvantaged are in-state residents.
People from Shreveport who are subpoenaed to appear at trial in New Orleans have to travel further that someone from Mississippi.
Unknown Speaker: I understand.
But it's 100 miles or within the state?
Mr. Hitchcock: Or within the state, correct.
Unknown Speaker: Now, that's not a perfectly, equitable match, as you're asking us to adopt for this rule.
Mr. Hitchcock: It's a--
Unknown Speaker: Congress didn't think it necessary, you know, to draw concentric circles around each district court and say, the subpoena power is only within that area.
It does... it does produce some inequities.
But given that we have a state system, Congress says, the subpoena power runs anywhere within the state.
Mr. Hitchcock: --I would turn that around, because I think the point actually helps us here.
What Congress said by adopting a rule of that nature, is that we are designing a rule for the convenience of witnesses, and we will make a judgment that it is convenient for witnesses to come in from anywhere in the state; that if they're 300 miles they won't be inconvenienced; and well also extend that so that lawyers... or that witnesses from the other part of the state may be brought in, too.
Unknown Speaker: What the district court is saying, we're making a judgment that it's convenient, and therefore possible, for lawyers to come here for quick hearings from anywhere within the state, just as Congress says it's convenient for any witness.
I don't know why that doesn't parallel what Congress has done.
Mr. Hitchcock: Well, what it parallels is the fact, again, Congress did let in people from out of state.
This rule does not.
And therein lies a distinction.
Even if it's not perfectly symmetrical, there are people who are allowed in from Mississippi, or from other places, if that falls within the boundary.
The problem with this case is that it is drawn strictly on state lines, and even under the availability, the argument that says, let's have lawyers who are available, that still lets in people from 300 miles away.
It says, they're convenient enough, they can come down here; but not lawyers, people who are being brought in involuntarily, but not lawyers from Southern Mississippi who voluntarily want to practice.
We say, we are willing, We want to build a regular practice in the Eastern District of Louisiana with all the burdens and responsibilities that entails, and we're willing to submit to that.
But they are excluded.
And the reasons about having lawyers available just cannot apply, we submit, in that context.
Unknown Speaker: Well, would you settle for the same rule that applies to subpoenas?
That is, you have to have an office within Louisiana or within 100 miles of the court?
Mr. Hitchcock: Well, my client lives 110 miles away, so that poses certain problems here.
Unknown Speaker: You can't do that.
Mr. Hitchcock: But I think--
Unknown Speaker: 110 miles, would that make you happy?
Mr. Hitchcock: --I could argue that would be perfectly constitutional.
The problem is that, again, Rule 45 deals with different concerns, it deals with the convenience of witnesses who are coming in, not lawyers who are seeking to appear and build a regular practice, and who want to submit to whatever requirements, who insist that they are willing to come on over to New Orleans, to show up, and to do whatever is required.
It's, we submit, apples and oranges.
I want to deal with one of the other distinctions that was raised by the respondents, and that's the fact that this rule is a continuing requirement, rather than the rule in Piper which was just limited to, lawyers had to reside at the day that they were admitted.
The problem is that that was only one of the defects, we submit that occurred in that particular case.
And I don't, as I read the Court's opinion, making the rule in Piper more restrictive would not have addressed the questions there.
The problem remains, even with a continuing requirement, that it is as overinclusive as it is underinclusive.
It allows in lawyers from far away in New Orleans, even if they don't practice law as litigators.
Even if they engage in a real estate practice, and don't ever appear in Federal court.
While it excludes experienced litigators, such as the petitioner, who are also closer to the court.
So the continuing requirement does not save it.
We have argued the reasons why we believe that heightened scrutiny ought to be applied under the Court's decision in Piper.
But even if the Court should decide not to adopt the reasoning in Piper here, we submit that the case can still be resolved under the Court's traditional equal protection analysis that's an element of the due process clause of the Fifth Amendment.
Heightened scrutiny, we think, would be appropriate under the standards that are used for that analysis, the fundamental right or suspect class, or even the Intermediate level of scrutiny.
In Piper, the Court declared that the right to practice law, or the opportunity to pursue one's career, was fundamental for purposes of Article IV, and I think the reasoning would apply here as well.
But even if it didn't, the distinctions that are drawn about in-state residents are allowed to practice, but not out-of-state practices, if not suspect class, at least raise what the Court referred to as recurring constitutional difficulties, in cases such as Plyler and Cleburne Living Center.
There are a number of cases where out of state residents are being excluded, even though there may be many valid reasons for allowing in-state residents, and even though the exclusion may not rationally or in other ways advance the goals that are attributed to it.
Unknown Speaker: Mr. Hitchcock, do you think it would be all right If the Eastern District of Louisiana simply cut out the geography rule, but maintained its rule that every member of the bar there had to be admitted to the Louisiana bar?
Mr. Hitchcock: That is not an issue here.
Unknown Speaker: No, but I asked you what your opinion was about it.
Mr. Hitchcock: Well, the Tenth Circuit after Piper raised the question as to whether that might be valid or not.
I would say... under the privileges and immunities clause... I would say, however, that Louisiana might be one state, the only state or the best state, in which that kind of restriction could be upheld.
To answer the question, I would have to look at what the arguments were advanced in favor of requiring that sort of a requirement--
Unknown Speaker: Well, what about one of them being that, well, a lot of the cases are going to involve elements of Louisiana law, diversity cases and that sort of thing.
And we don't give a special bar exam.
We want some evidence that you know the Louisiana law.
Mr. Hitchcock: --It would depend on the evidence that was put in.
As a practical matter, in Federal district courts, something like 70 to 75 percent of cases are Federal cases--
Unknown Speaker: But can you say that for the Eastern District of Louisiana?
Mr. Hitchcock: --I'm not aware... I've seen the number generally in several... broken down by circuits.
I'm not aware specifically in Louisiana.
But I think that--
Unknown Speaker: Well, supposing that the general rule, general percentage were 75 percent, but in Louisiana it were only 40 percent.
Do you think the Eastern District can pass a rule that governs it, even though it might not work in other districts?
Mr. Hitchcock: --That would be a more substantial reason.
But I would note, Mr. Chief Justice, the petitioner in this case is already a member of the Louisiana State bar, so the issue Is not implicated here.
Unknown Speaker: xxx he can... he can try cases in the state court in New Orleans?
Mr. Hitchcock: Absolutely, Justice White.
And that is one of the problems here.
Mr. Frazier can try cases on his own in the state courts in New Orleans.
But if he files a case, and let's suppose the defendant tries to remove it to Federal district court, he can't represent his client any more on his own because he cannot be admitted to the Eastern District bar under this rule.
He has to find a local counsel, or affiliate with another lawyer--
Unknown Speaker: Mr. Hitchcock, doesn't, the court of appeals have a study underway about rules in this respect?
Mr. Hitchcock: --The Court of Appeals... the judicial council of the Fifth Circuit is reviewing the rules of the district courts for consistency.
Unknown Speaker: With respect... and as part of their focus, on these rules permitting... restricting practice?
Mr. Hitchcock: This may be one of them, yes.
Unknown Speaker: May be?
Do you know?
Mr. Hitchcock: I don't know for certain.
The Court of Appeals said at the end of its opinion that it was unwilling to get into the issue because the matter is under review.
We're not aware--
Unknown Speaker: Well, so it is, so this very matter must be under review?
Mr. Hitchcock: --It may be under review, perhaps counsel for respondents could answer it.
But I would note Rule 83 was amended... was adopted by the Court nearly two years ago, and the rule has not been changed yet, and we're not aware of when any change would be imminent, and we're not aware of whether the change in the rule would affect petitioner or allow him to be admitted to the court.
Unknown Speaker: Do you know how prevalent these kinds of restrictions are across the country?
Mr. Hitchcock: Yes, the Court of Appeals noted that this type of rule is present in about 24 Federal districts across the country.
Unknown Speaker: And in the others, what's the rule?
Mr. Hitchcock: In a number of others, this rule puts the two together, where one must have an office or residence in the state.
A number of the other districts, there are some such as Southern Mississippi which don't have these kinds of restrictions, interestingly enough.
But in other districts, what they may have is two rules.
Number one, one can be admitted to the bar if one meets the educational and practice requirements, without any restriction.
Unknown Speaker: Of the state?
Of the state?
Mr. Hitchcock: Of the state bar... a member of the state bar, or the bar of any other state.
But they then add a restriction that says if any lawyer who enters an appearance in the case must be affiliated with local counsel.
So in effect there are two rules, but it has the same practical effect as this particular rule.
And if the Court should agree with us, we would hope that they would focus on that as--
Unknown Speaker: Well, how many districts have a rule that if you're a member of the state bar, you may practice in the Federal district court, even if you're a nonresident?
Mr. Hitchcock: --I'm not aware of exactly how many allow--
Unknown Speaker: Are there some?
Mr. Hitchcock: --Who allow you to practice in the district court if you're a member of the state bar?
Unknown Speaker: Yes.
Mr. Hitchcock: Yes, the Southern District of Mississippi, for example.
Unknown Speaker: Is that all, do you know?
Mr. Hitchcock: I don't know.
I didn't, when I was surveying the rules I didn't focus on membership in state bar, and whether that was--
Unknown Speaker: Well, if all the district courts the country except the Southern District of Mississippi have either this rule that this court has here, or its equivalent, that's pretty telling about what local district courts think is good for their... a good rule for running their business.
Mr. Hitchcock: --With respect to the admission to the state bar?
I meant the Mr. Frazier is admitted to the Louisiana State bar.
Unknown Speaker: Well, I know.
But I take it that other courts that will either have this rule or impose a requirement that he associate with local counsel.
Mr. Hitchcock: Other... well, other courts--
Unknown Speaker: All but the Southern District of Mississippi?
Mr. Hitchcock: --I don't want to limit it to the Southern Mississippi.
I have to confess, because Mr. Frazier is a member of the state bar in Louisiana, I didn't focus on how that requirement is applied.
There are other districts, I believe in Texas as well, that require one to be either a member of the Texas bar or the bar of any other court.
I could submit a summary of those requirements it it would be helpful to the Court.
Unknown Speaker: Oh, that's all right.
Mr. Hitchcock: But the point is, whatever educational or bar admission requirements one may impose, this type of rule deals with other questions.
Whatever educational qualifications one may require or practice requirements that is not related to the question of whether one lives or practices in the state and therefore, one is competent practitioner or likely to be available.
Mr. Frazier has met whatever educational qualifications and practice and bar admission qualifications that--
Unknown Speaker: May I ask you Mr. Hitchcock, I know that your client now is not a resident or have an office in Louisiana.
When he was admitted to the Louisiana bar, was he required to be either a resident or have an office?
Mr. Hitchcock: --No, when he was admitted--
Unknown Speaker: The Louisiana State bar just doesn't have any requirement of this kind at all?
Mr. Hitchcock: --No, Louisiana did not have a residency requirement, and that was the case before Piper as well as after Piper.
Unknown Speaker: Is it integrated?
Mr. Hitchcock: I'm not certain.
If the Court has no further questions at this point, we'd like to reserve the balance of the time.
Argument of Curtis R. Boisfontaine
Chief Justice Rehnquist: Thank you, Mr. Hitchcock.
We will hear now from you, Mr. Boisfontaine.
Mr. Boisfontaine: Mr. Chief Justice, and may it please the Court:
May I quickly answer your question, Justice Marshall?
The Louisiana bar is an Integrated bar; has been for some 35 years, integrated in both meanings of the word.
You must belong to the bar association in order to practice.
You must belong... you must be admitted to practice to belong to the bar association.
And it has no color lines whatsoever.
Before going into detail specifically, there's one... there's one point that I think needs repeating if not clarification.
The Eastern District of Louisiana admits any licensed lawyer of the 50 states to practice before it.
The issue here is not whether or not a lawyer may practice in the Eastern District.
The issue is, under what method may he practice in the Eastern District?
Take the unlicensed... the lawyer that is not licensed in Louisiana.
Take the lawyer in Nome, Alaska.
He may come to the Eastern District, seek and obtain admission pro hac vice, and obtain local counsel to assist him.
Under one of the subparts of Rule 21, the... the necessity for local counsel may be waived, and the evidence in the record says that that is done from time to time upon showing of need.
Now the lawyer who is licensed--
Unknown Speaker: Expand upon showing of need.
What does that mean?
Mr. Boisfontaine: --The rule itself, sir, provides... Rule 21.6, I believe... that if it does a hardship to the client, or if substantial compliance with the rules is assured, the waiver of local counsel Is given.
And our evidence in the record, which is unrebutted, is to the effect that it is often waived.
The pro hac vice is one method of practicing in that court.
Two other methods exist.
If you're a Louisiana lawyer and you live in the state, you may practice under general admission.
Unknown Speaker: Even though you don't have a residency in the state?
Mr. Boisfontaine: Yes, sir.
Even if you... if you have an office in the state and you live in Mr. Frazier's city, you may still practice generally in that court.
If you live in New Orleans and have your office in Pascagoula, Mississippi, you may practice generally in that court.
So that there are options on general admission, and if you don't, fit the options, then you have liberally granted pro hac vice admission.
We have no evidence of record where a lawyer has applied and has been turned down admission to practice before this court.
Unknown Speaker: But may I ask this question?
As I understand the holding in Leis v. Flynet a local court does not have to allow pro hac vice admissions if it doesn't want to; it's totally up to the discretion of the local judges.
Supposing they change their rule on pro hac vice and just say, we decided we want to have the same requirement on pro hac vice.
You've got to be... either have an office or be a resident.
Would that change the constitutional or the supervisory power issues in anyway?
Mr. Boisfontaine: I think there are some district courts that allow just such a restriction.
Unknown Speaker: So you really... although you say it really isn't as severe as your opponent makes out, you don't really rely on the fact that there are these alternative methods?
Your legal position is--
Mr. Boisfontaine: I think our position is--
Unknown Speaker: --the judges could just flatly exclude this man it they wanted to?
Mr. Boisfontaine: --I believe Congress has told this Court that it can make necessary rules, and the evidence by the way of record, says these rules are necessary, to make sure that the speedy and efficient administration of justice in that court is carried out, in the eyes of those rulemakers from that court who have the obligation, both judicially and congressionally, to make such rules as are deemed appropriate and necessary.
Unknown Speaker: Mr. Boisfontaine?
Mr. Boisfontaine: Yes, sir.
Unknown Speaker: You say that leave to practice pro hac vice is liberally granted.
But would it be liberally granted to the same person who came back time and again?
Mr. Boisfontaine: Yes, sir.
That has been... that is a part of the record, specifically so because we assumed that the Fifth Circuit might be wondering that very fact.
There is no restriction on the repetitiveness of pro hac vice admission.
In fact, if a person practices there often enough, he will likely get waivers of the local counsel requirement upon simple request, once he demonstrates his own abilities to know the rule, to perform under the rules, to make himself present at all times needed.
Unknown Speaker: May I ask how, in a case... say this man wanted to file a complaint on behalf of a client.
What procedure does he follow to get permission to do so?
Mr. Boisfontaine: He files in writing, through the mail, a motion to become enrolled pro hac vice.
Unknown Speaker: But it doesn't have a number... not with reference to any particular case, he just says that--
Mr. Boisfontaine: Oh, you have to say for what purpose, yes.
Unknown Speaker: --But it's just a letter saying--
Mr. Boisfontaine: It's a motion form--
Unknown Speaker: --Because he can't file a complaint with his name on it until he first has the pro hac vice permission, I guess.
Mr. Boisfontaine: --I don't really know whether the cart and the horse, who comes first.
There is a procedure to handle it--
Unknown Speaker: Well, he also has... he also has to be associated with local counsel.
Mr. Boisfontaine: --But local counsel will often file the suit, and then file the motion asking permission far attorney X or Attorney Frazier--
Unknown Speaker: Well, isn't that how it's done all the time?
Mr. Boisfontaine: --That's often how it's done.
That's the way I've seen it done in the few cases we've got with local counsel.
Unknown Speaker: Does the evidence indicate that the problem with... it's harder to comply with the rules of the Federal court than it is of the state courts?
Because I guess he doesn't have to do this in the state courts, he just files his complaint.
Mr. Boisfontaine: No.
As a matter of fact, the Eastern District discovery rules are quite... are quite intense.
They require a lot of face-to-face confrontational meetings.
A lot of the pretrial activity is done personally and is prohibited by telephone or the mail.
Some of the early scheduling conferences under the rules require the trial attorneys, or one of them, to be present with a magistrate, to go through the whole system.
As you approach trial the routines and regimens of pretrial settlement require the attendance, under all circumstances, of the trial attorneys.
There is a need for the personal touch, if you please if you satisfy the Eastern District rules.
Unknown Speaker: But doesn't that... don't you suppose the lawyers know that in the area?
Mr. Boisfontaine: The lawyers in the area know it.
Unknown Speaker: If he is going to file a suit, he must presumably realize that he has that responsibility, assuming he's a professionally qualified person?
Mr. Boisfontaine: Well, again, I'm not trying to answer you in the abstract, because our record contains evidence from accepted experts on the judicial administration in the Eastern District, and that evidence says that attorneys from away give the court more trouble than those who are logically, normally and frequently practicing there.
Now, the minority opinion of the Fifth Circuit sort of scoffed at that evidence.
Unknown Speaker: Just like those from Shreveport?
Mr. Boisfontaine: Those from Shreveport that practice in the Eastern District usually come the night before and have dinner and are there the next morning.
Unknown Speaker: Well, I suppose the ones... people from Mississippi could do the same thing.
Mr. Boisfontaine: Mr. Frazler's local attorney did the same thing, I suppose.
He was admitted pro hac vice to try this very case for Mr. Frazier.
There's also this ominous comparison to Piper that we perceive in the applicant's brief.
Piper is very different from Frazier, if I may use those names to designate those cases.
First of all, we're talking about state law and Federal law.
And that alone is a big distinction between the Piper Article IV problems and the Frazier case.
In Piper we also have this option of not only living in the state but maintaining an office in the state; under either of which gives you automatic, general admission to the Eastern District of Louisiana.
And more importantly, the continuing requirement of that eligibility puts the real teeth in the rule in Frazier, and at the same time demonstrates the absurdity of the rule in Piper.
Mrs. Piper could have run over to New Hampshire, gotten an apartment or done whatever it was it would take to establish residency, gotten admitted to the court, and run right back 400 yards to her nice house and home.
And it would have made no difference under the Piper rule, because once certified, once admitted, that was it; you could go to Nome, Alaska.
In the rule under scrutiny here, the continuing need for office or residence is clearly proscribed.
And it you have neither, then you must fall back to the other means of practicing before the court, on the pro hac vice side.
The subpoena power of the state, of the court, is contiguous with the subpoena power granted in the state proceedings.
Unknown Speaker: You know, you're talking about the absurdity in the other case.
I take it there are cities in Mississippi that are closer that Pascagoula.
Isn't Biloxi closer for example?
Mr. Boisfontaine: Biloxi is closer, yes, sir.
Unknown Speaker: I mean, there are some right across the river, aren't there?
Mr. Boisfontaine: Gulfport is even closer.
Unknown Speaker: Gulfport was the one I was trying to think of.
Mr. Boisfontaine: Yes, sir, there are cities, there are cities in states that are shorter in distance than the location of Mr. Frazier's residence.
Unknown Speaker: But I don't know why you say it was so absurd in the Piper case.
I don't know why the lawyer in Gulfport would be any different than the lawyer in Piper.
Mr. Boisfontaine: Well, my comment about the absurdity had to do with the fact that Piper did not have continuing residency or continuing office maintenance as a requirement.
That was my comment about the absurdity in Piper, only that you could run over there, get admitted, and then for all time, not worry about it again; whereas the Frazier rule requires that you maintain either an officer or a residence.
Unknown Speaker: In a town like Texarkana, you'd have to have offices on both sides of the street?
Mr. Boisfontaine: That might solve a lot of problems.
But it's Arkansas and Texas, and they'd still have to come to Louisiana pro hac vice.
Unknown Speaker: No, I'm talking about if this was a Texas law, I like the Louisiana law, and you lived on one side of Main Street In Texarkana, you'd have to have an office of the other side of the same street?
Mr. Boisfontaine: If that same rule... yes, sir, Justice Marshall, that would certainly be true.
I submit you could live on one side and practice on the other, though, and solve those problems.
No rule is safe from better rule writing.
There is hardly anything that you can look at a second time and not find a better way of addressing, or a better way of expressing it, or perhaps a somewhat softer impact.
But we're not here trying to write a rule.
I think we are here trying to review and to see if this rule is constitutional.
Is this rule appropriate?
Now to look at that issue, as I see it you look first to the reason for the rule.
Is it reasonable?
Does it accomplish the purposes for which it's intended?
And we say to you that it does.
You then look and see if it is harshly discriminatory.
No one is going... everyone is not going to be treated exactly alike.
But some disparity in treatment Is permitted under the regimens and under rules.
And we look at this rule and we ask ourselves, is this rule appropriate for the purposes for which it is performed?
Does it unduly mistreat Mr. Frazier and other people similarly situated?
And under the evidence of record, and under the reasons expressed for the rule, we say to you that the rule is the only appropriate way to maintain control over the attorneys that are practicing in the Eastern District of Louisiana.
And the only way to do it in such a way as to minimally impose some disparity in how you practice there.
It must be remembered that Mr. Frazier can get general admission anytime he wants if he opens an office or if he lives in Louisiana.
The rule is there.
How it affects a person depends on the person's motives and on the person's conduct.
The rule is very objective.
It says, any Louisiana lawyer who either lives or practices in Louisiana is generally admitted.
That lets lawyers come to Louisiana, leave Louisiana, open offices, close offices.
It is their conduct that affects the ultimate effect of the rule on them.
We submit that the only way this could better be handled, perhaps, is not to have a rule at all.
And I don't believe that that would be the proper carrying out of the Congressional and Judicial mandates on the Eastern District court in the exercise of their rights and obligations.
Unknown Speaker: Mr. Boisfontaine, may I ask you as kind of a practical matter, what do they do?
Do a lot of them Just have sort of like a corporation trust company, they have some office where they can go in and have the receptionist take phone calls for them?
That will do it, I suppose, put the name on the door?
Mr. Boisfontaine: I suppose.
I think that maintaining an office would carry with It the obligation to maintain a lawful office, not just a sham--
Unknown Speaker: Well, but it wouldn't be a sham in the sense of--
Mr. Boisfontaine: --I know of no dropoffs.
Unknown Speaker: --say one of the larger firms knew about this problem and said, we'll be glad to put your name on the door and take your phone calls and be sure your mail is forwarded?
Mr. Boisfontaine: I suppose if our firm would have put Mr. Frazier of counsel, and give him telephone and address privileges, we would probably satisfy the rule.
But then we would-be holding ourselves out as vouching for Mr. Frazier, and our firm would in effect be surrounding Mr. Frazier with our reputation and with our obligations to that court.
To answer you more directly, yes.
That would satisfy it.
Unknown Speaker: Well, I'm not sure your firm would... say he had a client in the shipping business or something.
And they said, well, you can use... we'll let our switchboard take your calls, and you can use this as an office for taking mail and so forth.
And his client Just... and he just listed that office and phone number.
Would that satisfy the rule?
I don't know it wouldn't.
Mr. Boisfontaine: If the court knew it, I don't believe it would.
Unknown Speaker: Oh, it wouldn't?
Mr. Boisfontaine: I don't believe it would.
Unknown Speaker: There is a definition of the kind of office he has to maintain?
Mr. Boisfontaine: I would not... the rule of course does not say, whether it be a fancy office or a small office or--
Unknown Speaker: Well, isn't the only purpose of the rule to be sure he gets notice and gets his mail?
Mr. Boisfontaine: --The purpose of the rule is to make sure he gets notice, to make sure he gets his mall.
Unknown Speaker: Well, why wouldn't it satisfy to have a client say you can--
Mr. Boisfontaine: I'm not saying that it wouldn't.
I'm saying that I suspect that the court would require more than a drop, if you please.
I don't know that it would.
Unknown Speaker: --Why?
What purpose does it serve, other than the drop purpose?
Mr. Boisfontaine: Well, I think basically the purpose of having the rule, and having the office or the residence is, as you point out, to make sure that notices are timely received.
And I suppose a drop would satisfy that.
Unknown Speaker: I wonder if a mailbox might do it.
If you kept a mailbox at general delivery.
Mr. Boisfontaine: I don't think a mailbox is an office.
Unknown Speaker: I see.
But I would think as long as he had a client who was willing to put his name on the door, and a phone number that he could list in your lawyers' directory, I don't know why that wouldn't comply.
Are you sure, Mr. Boisfontaine, the only purpose is to give him... to make sure that notice is received?
Certified mail would do that.
Mr. Boisfontaine: It's not just a question of assuring the court that mail is received.
Unknown Speaker: I didn't think so.
I thought the purpose was to make--
Mr. Boisfontaine: I think I stepped in that answer.
There's more to it than that, sir.
Unknown Speaker: --What is it?
Mr. Boisfontaine: It's to assure the court that the attorneys are available.
It's not just a question of getting there.
It's a question of--
Unknown Speaker: Well, suppose you have one of these multistate law firms, you have them I'm sure in New Orleans as we do in other parts of the country, and you've got a New York partner up there, and he's going to try the case and so forth.
Does he have an office there?
He's never in New Orleans except for the purpose of this one case.
Does he have to get pro hac vice admission?
He's a member of the bar.
This fellow moves to New York.
Mr. Boisfontaine: --I don't believe we have multi-district firm.
And I don't know the answer to your question.
Unknown Speaker: But you're saying... you're suggesting that the rule requires a certain number of days a week in the office or something like that?
Mr. Boisfontaine: --No, sir, the rule doesn't deal with firms, it deals with lawyers.
It deals with a person.
Now if this person were living and practicing in New York City, he obviously wouldn't qualify for general admission--
Unknown Speaker: Even if he became a partner of your firm?
Mr. Boisfontaine: --Even if he were a partner of the firm, he is still Mr. Smith, and Mr. Smith lives and practices in New York City.
As I would interpret it.
Unknown Speaker: Let's assume a lawyer leases an office and has a secretary there, but he lives in Mississippi.
And he may be able to get his mail, but he's still away, and he's not instantly available.
You can... he's bound to get notice.
His office will make sure that he gets notice.
But he's still a long distance away.
Mr. Boisfontaine: Justice White, I suppose it's in the interest of trying to be as liberal as possible that this alternative option is granted.
If the Court really wanted to be restrictive, and wanted to have Its law--
Unknown Speaker: Well, what difference... what difference where he's got his office make if all he has in his office is somebody to notify him that he's got some mail or a phone call?
Mr. Boisfontaine: --In my view, people do not frivolously undertake overhead of offices.
If a person is going to maintain an office in the State of Louisiana, there is going to have to be a reason for it superior to an ability to generally practice in the Eastern District of Louisiana.
Because that can be done with no overhead.
That can be clone by simple motion for a pro hac vice admission.
So the fact that the rule allows the general practice, once you have an office, presupposes good common sense on the part of the attorney.
Unknown Speaker: It demonstrates a serious commitment to practice in that district, I take it, doesn't it?
Mr. Boisfontaine: I would think that's true.
And I think also the fact that you live there is more--
Unknown Speaker: A serious commitment to continuing practice In that district, as opposed to someone who just practices now and then and comes in pro hac vice?
Mr. Boisfontaine: --I wish I had said it that way, Sir.
Unknown Speaker: Counsel, what do you... I notice if you ever go up to Wilmington, Delaware, and lawyers... you see all these plaques on there, and that's all it is.
Mr. Boisfontaine: Corporate headquarters, I suppose.
Unknown Speaker: Would that be sufficient?
Mr. Boisfontaine: Again, we're talking about whether it's a legitimate office of that particular person for that--
Unknown Speaker: 0 xxx.
Mr. Boisfontaine: --If it's an office yes, sir, I suppose it would have to be if it's a legitimate office, if it demonstrates his intent to practice in the state.
This could be a lot tougher, you know.
This could say, if you're not... if you're not in Olney's Parish, you're not going to be generally admitted to this court.
And a lot of districts have very restrictive admission rules.
I think the Eastern District has compromised the liberality with the necessity of the administration of Justice in expanding it to the entire state or so say we.
Now, let me touch one more time on this 100-mile range for Mr. Frazier, and in his case, I suppose we would make it a 111-mile range.
That argument, to me, is an argument that would be made to the rulemaking authority at the time they're making a rule.
It is an attempt to write the rule differently, to write the rule perhaps more restrictively in some respects, and less restrictively in others.
Unknown Speaker: xxx if there is one--
Mr. Boisfontaine: There is a Judicial conference in effect in the Fifth Circuit.
I don't know the precisity of the review of the admission rules.
know that they are awaiting hearing from this Court, since they are very much aware of this writ.
But the rule writing and the rule review is underway.
I was not at the Fifth Circuit Judicial conference two weeks ago, but I understand that there was a great deal of discussion about admission rules and many other rules of the various district courts within the Fifth Circuit.
Unknown Speaker: --Was the Fifth Circuit--
Mr. Boisfontaine: I can't give you a time or date by which any work would be completed.
Unknown Speaker: --Were they thinking about requiring particular kind of a rule through the circuit?
Mr. Boisfontaine: I understand they're considering, as I understand it, they're considering some uniformity, not requiring... not requiring total uniformity--
Unknown Speaker: Right.
Mr. Boisfontaine: --but they're looking at the extremes of rules treating the same subject, with a view toward trying to bring the extremes more toward a center... a center line.
I think that's the extent of the uniformity that they seek to achieve.
If there are other questions?
Otherwise, we submit.
Rebuttal of Cornish F. Hitchcock
Chief Justice Rehnquist: Thank you, Mr. Boisfontaine.
Mr. Hitchcock, you have one minute remaining.
Mr. Hitchcock: Thank you, Mr. Chief Justice.
I wanted to follow up on the question of the office requirement, Justice Stevens' inquiry.
It was addressed in the record.
At page 151, Mrs. White, the clerk, said that a mailbox is not sufficient.
At page 255, Judge Wicker testified that the office requirement requires only that there be someone to answer the telephone and communicate with the lawyer.
And I would add again that that could be in New Orleans, or it could be in Lake Charles, or it could be in Shreveport, or it could be anywhere else.
Mr. Frazier can affiliate with an office... somebody who has an office In Lake Charles, and he would satisfy the office requirement.
But there's no reason to believe--
Unknown Speaker: Do you understand that to mean he would satisfy it if one of his client's were willing to put his name on the door and forward mail and phone calls to him?
Mr. Hitchcock: --The statement was, and I will quote from the record, quote: This means where there is an address with a telephone number to me.
Question: Somebody such as a secretary?
Answer: Someone who would be able to communicate with that Individual If we attempted to reach them.
That is the only answer.
Unknown Speaker: So your answer is, yes, that would be adequate?
Mr. Hitchcock: Yes.
That is permitted.
Unknown Speaker: So maybe he needs to get a New Orleans client.
Mr. Hitchcock: Excuse me?
Unknown Speaker: Maybe he needs to get a New Orleans client?
You think it says that?
I don't think it says that.
Mr. Hitchcock: It says someone... you know, secretary with the office.
And again, it doesn't say where, it doesn't say somebody who is committed to regularly practicing in the Eastern District.
It could be somebody--
Unknown Speaker: That may well mean that you just can't hire an office and have a vacant office with nobody there to answer the phone.
That's how I would have interpreted that.
Mr. Hitchcock: --But it doesn't imply that there Is someone there who could go over to the courthouse for emergency hearings or something of that nature.
Chief Justice Rehnquist: Thank you, Mr. Hitchcock.
The case is submitted.