SUPREME COURT OF VIRGINIA v. FRIEDMAN

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ORAL ARGUMENT OF GREGORY E. LUCYK, ESQ. ON BEHALF OF APPELLANTS

Chief Justice Rehnquist: We will hear argument first this morning on Number 87-399, The Supreme Court of Virginia v. Myrna E. Friedman.

Mr. Lucyk, you may proceed whenever you are ready.

Mr. Lucyk: Mr. Chief Justice, and may it please the Court:

This is a very important case with a very ironic twist.

It's ironic because this case involves an attack under interstate privileges and immunities grounds against the Virginia Supreme Court rule which is intended to promote the interstate mobility of experienced attorneys by providing them with a limited form of bar admission without examination.

Presently Virginia is among the minority of states with what you might call liberal bar admission policies.

Twenty-eight states, in fact, limit interstate mobility of lawyers.

They provide no form of bar admission without examination.

This is a vulcanization of the legal profession, and this is a vulcanization which has accelerated in recent years and, in fact, eight states have dropped reciprocity admission since 1985 alone.

This case is very important because it brings the Court to a crossroads.

If this attack on reciprocity admission is sustained, the decision could hasten the trend of the states toward exclusionary bar admission policies and, in fact, thwart the principles of interstate harmony underlying the privileges and immunities clause.

Unidentified Justice: Would that be bad?

Mr. Lucyk: Your Honor, the decision would, in fact, defeat the purposes of the Constitutional provision.

It would be bad.

On the other hand, the decision upholding Virginia's rule could reverse the current trend and encourage the states to restore interstate mobility afforded by reciprocity admission.

It is helpful first to focus on what is and what is not before the Court.

This is not a rerun of Supreme Court of New Hampshire v. Piper.

Virginia does not restrict admission to the bar only to Virginia residents and, in fact, the record in this case establishes that 13 percent of Virginia's 14,000 bar members are nonresidents admitted by examination.

Nor is this a challenge of the right of the states to require an applicant to prove knowledge and competence in local law and to demonstrate a commitment to providing service in the jurisdiction before they may be admitted to the bar.

Finally, the Court need not address the right of the states, as twenty-eight states do, to require all applicants to take a bar examination or stand for an examination to demonstrate this commitment and competence in local law.

What is here is a very narrow issue and it is the right of Virginia to provide an exception to the general admission requirement of examination.

Unidentified Justice: Mr. Lucyk, now what do you say is the main purpose that Virginia has in making the residence requirement?

There is, as I understand it, already in Virginia a requirement of full-time practice in Virginia to be admitted on motion.

Mr. Lucyk: That is correct, Justice O'Connor.

Unidentified Justice: So what is there above and beyond that that is Virginia's interest in the residence requirement?

Mr. Lucyk: Virginia's interest in requiring residence is to ensure that this is, in fact, a restricted license to practice law.

Admission by examination is a form of general admission.

It entails no long-term restrictions, whereas Virginia intends by its reciprocity program to encourage lawyers, experienced lawyers, to come into the state and provide their full-time availability to the service of Virginia clients.

Unidentified Justice: The fact that they agree to work full-time in Virginia is not enough to meet that?

Mr. Lucyk: Justice, the full-time practice requirement serves to provide 9 to 5 availability, but it does not promote availability of that attorney to Virginia residents and Virginia clients beyond those normal office hours.

That is the function of residence.

Unidentified Justice: Is there any state bar requirement that a lawyer give a certain amount of pro bono service or have an office open beyond 5 o'clock, or something like that?

Mr. Lucyk: No, Justice O'Connor.

The Virginia Supreme Court presumes that applicants admitted by examination have demonstrated that commitment to the practice of law in the state, that they will provide without any requirement that commitment to providing pro bono services and making their services available.

We do not believe we can presume that same commitment from someone who is merely paying the annual dues and making an annual promise.

Unidentified Justice: And practicing full-time?

Mr. Lucyk: And practicing full-time in the state.

That is correct.

We are asking our practitioners admitted by reciprocity to provide, to demonstrate, a greater commitment, and that is to be available during office hours, during the evenings, during the weekends, to provide pro bono services and to make services available to Virginia clients.

That is the purpose that is provided by residence which full-time practice alone--

Unidentified Justice: What does full-time practice in Virginia mean?

Just your availability that you have just described?

May he have a case in the federal court in the District of Columbia?

Mr. Lucyk: --Yes, Justice.

It is not a prohibition.

It does not completely prohibit.

Unidentified Justice: Well he is not practicing full-time in Virginia if he spends a week trying a case in San Francisco.

Mr. Lucyk: No, Your Honor, but that doesn't defeat the purposes of the full-time practice rule which in and of itself is intended to ensure that an attorney has sufficient contacts with Virginia law on a consistent basis.

Unidentified Justice: That may be the purpose, but is it the language of the rule?

Isn't the rule rather vague in its structure?

Mr. Lucyk: The rule is vague, I would agree with you, in its language but it has been interpreted by the Virginia Supreme Court in In Re Brown in 1972 and in In Re Titus.

The Court defines its rule to mean that the applicant must open an office for the practice of law in Virginia and engage regularly in the practice of law from that office.

Unidentified Justice: You certainly have many lawyers practicing law who have lived all their life in Virginia and yet cannot be admitted to the Virginia bar.

Is that not true?

Mr. Lucyk: I don't know if that is true or not, Your Honor.

Unidentified Justice: You must know some.

I do.

Mr. Lucyk: I do know of one.

I do know of one and that was a gentleman who sued the Virginia Supreme Court over the full-time practice requirement in 1985.

I assume there are others, but I don't think the number is so great that it is substantial or at least as a factor in this case.

Unidentified Justice: How does the Supreme Court of Virginia police the full-time practice requirement.

Is it an easy requirement to police?

Mr. Lucyk: It is not, Mr. Chief Justice.

We rely upon, essentially, reports from other members of the bar or someone advising or informing the bar disciplinary body that the rule is not being complied with.

It is not a self enforcing requirement and, therefore, we rely on the additional exposure to the state occasioned by residents to allow or to provide for additional scrutiny of the attorney.

Unidentified Justice: For what period of time must the lawyer be a full-time practitioner in Virginia?

Mr. Lucyk: So long as the person intends to hold on to that restricted license to practice by reciprocity.

It is a continuing requirement.

Unidentified Justice: Does the license itself contain the restriction?

Mr. Lucyk: No.

The licenses, the general license that is issued--

Unidentified Justice: Has any lawyer ever been disbarred for practicing elsewhere?

Mr. Lucyk: --To my knowledge, Your Honor, there has been one disciplinary case involving noncompliance with the full-time practice requirements.

There may have been others, but I am not--

Unidentified Justice: What happened in that case?

Mr. Lucyk: --I do not know the specific facts of that case.

Unidentified Justice: Were there other charges as well as failing to practice--

Mr. Lucyk: I believe there may have been.

Unidentified Justice: --So, as far as you know, nobody has ever been disbarred simply because they practiced somewhere else?

Mr. Lucyk: No, Your Honor, and, frankly, there haven't been that many attorneys who have been admitted by this rule up to that time.

Unidentified Justice: What about the residence requirement?

How long... say, the person lives in a hotel over in Arlington and at the time of making application gets the certificate and then moves to Maryland.

What do you do about that?

Mr. Lucyk: That individual would be out of compliance with the rule and would be subject to revocation.

Unidentified Justice: Has anybody ever had their license revoked for moving from Virginia to Maryland?

Mr. Lucyk: I'm not aware if there have been, Your Honor, and, again, the numbers in the past haven't been that great that compliance has posed great problems.

Unidentified Justice: Why is that?

That surprises me.

You may have noticed there are a lot of lawyers in Washington, D.C., and a fair number of them live in Virginia.

And I would assume that practicing in Washington as counsel for a government agency, for example, or on the staff of a government agency would not constitute the regular practice of law in Virginia.

There must be a lot of lawyers.

Mr. Lucyk: It would not, Justice Scalia.

And there are quite a few lawyers who reside in the area and who practice up here who take the Virginia Bar examination.

There are a significant number, in fact.

Nearly 2,000 of our bar members are nonresidents admitted by examination, so it's certainly a reasonable and adequate alternative which is available.

Unidentified Justice: Now, once they are admitted by examination they do not have to engage in the regular practice of law in Virginia?

Mr. Lucyk: That's correct.

Once they have passed the examination, they've demonstrated their competence in local law and they have certainly established, or shown a commitment, to a substantial practice in the jurisdiction.

Unidentified Justice: But then they aren't, as you say, available twenty-four hours a day.

Not necessarily.

Mr. Lucyk: No, Justice White.

It's a different kind of license.

Admission by examination--

Unidentified Justice: And after examination, they can move out of the state, too.

Mr. Lucyk: --Yes, sir, Justice.

We can presume, and this Court has made clear: you can presume that in real life no one is going to take the bar exam unless they intend to make a substantial commitment to practice in the state.

Unidentified Justice: Well, they intend to practice in Virginia.

The only thing is they change their mind after a couple of years and join a firm in another state.

Mr. Lucyk: And the Virginia Supreme Court doesn't object to that and it has no problem with that.

Someone who has taken the examination has shown that commitment to Virginia.

Unidentified Justice: Let's assume two brothers are practicing law in a partnership in Chicago.

They decide to set up a partnership, move to Virginia with their business, and so they set up a partnership in Virginia.

And one of them lives in Virginia and the other one lives across the line in Maryland.

I take it one can be admitted on motion and the other cannot.

Mr. Lucyk: That's correct, Justice.

Unidentified Justice: I'm not sure that makes a whole lot of sense.

Mr. Lucyk: Justice, it certainly makes sense when you view the purposes of the rule as a whole, and that is to encourage lawyers to move and provide services not just in the border areas of Virginia but all over the state, in the southern and western mountains, in the Piedmont region, on the Eastern Shore.

The purpose of the rule, and the rule was adopted, to make it easier for older practitioners to move into the state and to establish a practice, maybe those who have to move because of some change in their personal or professional commitments.

It also assists, for instance, the state and local government law offices or even Virginia's free legal services programs for low-income people who must recruit from a small pool of--

Unidentified Justice: Do you really think this law attracts lawyers to go out into back woods and practice?

Do you really think that?

Mr. Lucyk: --I think the law provides that purpose.

Unidentified Justice: Does it do it?

Does it attract them?

Because my next question is how many has it attracted so far?

Mr. Lucyk: Justice, I have no empirical evidence to show how many lawyers may have been attracted to particular areas of the state, but I do know that, for instance, our legal services program and farm bill will rely upon this rule to bring attorneys in and get them admitted so they can represent indigent people in that area.

You know, the rule does serve that beneficial purpose.

So, in effect, we view waiver of the examination as an incentive to give lawyers the opportunity to come into the state and devote their full time and make their availability to the practice of law and the service of Virginia clients.

In that sense, the rule, we submit, is a bridge which actually promotes interstate mobility.

It's a bridge across state lines and it is a bridge which is not provided by twenty-eight other states which require all practitioners to take the bar examination.

Unidentified Justice: Yes, but it still would perform that function if you knocked out the feature of the rule that they challenge.

Mr. Lucyk: Justice Stevens, I think the problem is that it would not perform that function to the extent the Virginia Supreme Court would like it to because, again, we are talking about an attorney's commitment to full-time availability.

And someone who leaves the state, who leaves the area, and goes to a distant location in another state is not going to be available to the same extent as someone who resides directly in the community and is available for a visit in the evening.

The other thing that the residence requirement does in terms of aiding in the enforcement, or at least compliance with full-time practice, is it ensures that the attorney's social contacts and community contacts aren't going to bring that attorney additional business.

Now, if our attorney who resides in Vienna, Virginia, you know, has social contacts, meets people on weekends and the evenings, people who ask legal questions and need services, and the attorney says, sure, come on into my office and we'll talk about it, that attorney is not facing the potential of developing a substantial out-of-state practice.

Whereas our attorney in Cheverly, Maryland, who is meeting with his or her social contacts in the evenings or on the weekends, who are Maryland residents, and these are persons who are saying, look, I've got this legal problem, come on in to my office, well, then we see an expanding or growing out-of-state practice which defeats the purpose of full-time practice.

Unidentified Justice: Well, I certainly want to congratulate Virginia on wanting to get more lawyers in this way.

It certainly is that most states seem to think they have too many, and you're describing this as really a device to bring in as many lawyers as possible.

I thought we were arguing about an exclusionary aspect of it, not an inclusionary aspect of it.

Mr. Lucyk: Well, Justice, I think our point here is that that you've got to look at the rule as a whole and what is it intended to do.

If you look at it at a narrow focus, and if you look at it from the eyes of someone who thinks there should be no restrictions in each state for admission to the bar, then it may appear to be exclusionary.

But if you look at it from the eye of a state supreme court that wants to make legal services available to its citizens, yet still provide some guarantee of competence and commitment among its attorneys, then it is an inclusionary rule.

It does.

It serves as an invitation for experienced attorneys to come into the state and begin servicing Virginia clients on a full-time basis.

So, it is, indeed, we would submit, an inclusive not an exclusive rule.

It is a bridge across state lines which applies only to foreign attorneys.

It does not apply to resident attorneys.

The rule is intended to apply and it's called foreign attorneys, to allow those foreign attorneys to migrate, settle and abide in Virginia and begin earning their living and assisting Virginia clients by engaging in the practice of law.

Unidentified Justice: If we agree with the Appellee in this case, what will be the consequence?

Will everybody have to take the exam or nobody will have to take the exam is what I'm talking about.

Mr. Lucyk: That would be up to the Virginia Supreme Court.

I do know the supreme court, if this requirement of residence is struck down, will re-examine its rule to determine whether it meets their expectations of assuring commitment and competence from untested practitioners.

And I think, I would submit, I'll speculate, and I'd be willing to bet all the money in my pocket on that the fact that if residence is struck that reciprocity in Virginia will be eliminated.

I think that we have to consider that it's not a ramification that may occur only in Virginia.

There's been amicus brief filed by four states in this case, and all of those four states joined in a brief that said residence is going to cut into our ability to ensure that our practitioners are committed to serving, to practice the law, in the state.

One of those states, Wyoming, has already abolished its reciprocity rule.

It did that in December.

Unidentified Justice: Four out fifty is not a very good recommendation to me.

Mr. Lucyk: Well, Justice, there are already twenty-eight states which do not provide admission without examination, so we are looking at twenty-two states.

Of those twenty-two, seven of them require residence.

Unidentified Justice: Twenty-two doesn't say too much to me.

Mr. Lucyk: So the numbers really are, I think, more in favor of our position and if these seven states abolish reciprocity then we are looking at no more than fifteen, a handful of states which still include reciprocity.

The other point that we would like to make is that discretionary admission without examination has been subject to further Constitutional attacks on a regular basis involving these so-called interstate harmony provisions of the Constitution.

We can see further attacks down the road on the full-time practice requirements.

For instance, a non-resident attorney will then challenge the full-time practice requirement saying it imposes an excessive burden on the non-resident who has to maintain an office in the state.

So we may see full-time practice disappear.

We may also see the requirement of reciprocity disappear, because it is, indeed, a reciprocity program.

Texas, for instance, will not admit Florida lawyers to its bar because Florida law requires everyone to take an examination.

The same applies to Louisiana lawyers, all of whom are required to take an examination.

I can see the Louisiana lawyer suing the Texas State Bar because they do not grant reciprocity to Louisiana lawyers, and that being struck down on the Commerce clause because reciprocity is a protectionist provision that the Commerce clause bars.

And once that happens, then all of the rest of those states are going to fall like dominoes and we are going to have a complete vulcanization of the legal profession.

Unidentified Justice: Louisiana follows the Napoleonic law and not the common law?

Mr. Lucyk: That's correct, Justice.

Louisiana's different.

All of the states, I would submit to you, are different, some more so than others.

Unidentified Justice: It has civil law.

Mr. Lucyk: Justice, I think you are correct that Louisiana is the only state that has civil law--

Unidentified Justice: Thank you.

Mr. Lucyk: --but, indeed, all of the states and the principles of federalism, you know, provide that each state has its own laws.

Not every state has the uniform commercial code or other uniform laws.

In Virginia--

Unidentified Justice: You might try the Commonwealth of Puerto Rico.

That might help you out a little.

Mr. Lucyk: --Thank you, Justice Scalia.

So, our position then is that the application of the interstate harmony provisions of the Constitution against these reciprocity rules doesn't really make sense, because in a sense you are defeating the very purpose that these rules are intended to promote.

And I'd just like to state a few more words about why we believe that privileges and immunities clause ought not apply to discretionary admission without examination.

First, a holding in this case that we must admit the Maryland lawyer who under Rule 1(a)(1) without regard to residence, in fact, would require absolute equality in Virginia's treatment of residents and non-residents.

We submit this Court has recognized on numerous occasions that absolute equality is not a prerequisite of the privileges and immunities clause.

And, in fact, this Court has approved the principle that the clause is satisfied if a state provides a reasonable and adequate means for the non-resident's enjoyment of the regulated activity.

Here, the bar examination is, in fact, a reasonable and adequate alternative means.

Unidentified Justice: May I ask you a question about the general subject because you know so much more about it than I do.

Has anybody ever challenged the reciprocity requirement itself?

In other words, what is the reason for saying a Florida lawyer where they don't have it should not be admitted whereas an Illinois lawyer may be admitted.

What's the reason for that?

Mr. Lucyk: What is the reason for the rule?

Unidentified Justice: Has anybody said that's subject to challenge?

Or any of these... talking about all the others.

Mr. Lucyk: No, Your Honor.

To my knowledge, that case hasn't been brought yet.

But it's only in very recent years that we've seen commerce clause and privileges and immunities challenges to these discretionary admission provisions.

And it's only recently that the courts have begun to apply those provisions to these discretionary admission--

Unidentified Justice: I'm just reflecting, in terms of the interest you describe of giving good service to the Virginia clients, it is puzzling to me why a Florida lawyer wouldn't qualify as much as an Illinois lawyer, if he had met the restrictions of full-time practice and residence if he moved from Florida.

But he would not be eligible?

He or she would not be eligible?

Mr. Lucyk: --Justice Stevens, let me articulate one reason why I think, you know... the presumption seems to be in this day and age that if there is any condition which limits admission to the bar it must be the product of economic protectionism.

But there is another very valid reason for a bar, a state bar, wanting to maintain a reasonable and controllable size of the bar it is required to regulate.

And by the 1990s, there will be one million practicing attorneys in this country.

It's a staggering thought for a bar-regulating authority to have to consider, even if just ten percent of those attorneys seek admission to the bar by reciprocity, regulating a bar of 100,000 attorneys or even more, especially for a bar like Virginia which has only 14,000 attorneys at this time.

And trying to regulate all of the potential misconduct problems that could arise.

Indeed, most of the states now have great backlogs in their disciplinary proceedings because they simply cannot keep up with the numbers.

But not only regulating misconduct problems, but also trying to enforce, for instance, mandatory continuing legal education requirements on a national scale.

Unidentified Justice: Well, I think that all makes good sense, but I would suppose that is directed at the distinction between reciprocity states and nonreciprocity states, just as in the same way that you might say we'll only take lawyers whose names begin with A through M.

Because that would serve the same purpose.

Mr. Lucyk: Justice, it certainly may serve the same purpose, but we submit here that Virginia's rule does achieve a number of very laudable purposes.

It does open the doors to reciprocity for and grant a right of travel to non-resident attorneys, so they may come into the state and engage in the practice of law.

At the same time, it still ensures a guarantee of competence and commitment from those attorneys.

So we submit that the Virginia rule does achieve a balance, a good balance, from the complete exclusion that was presented, for instance, in the Piper case, and from the unregulated, uncontrollable bar which might exist if there were no limitations on the authority of a state to impose some conditions on admission.

If there are no further questions, I'd like to reserve a few minutes for rebuttal.

Chief Justice Rehnquist: Thank you, Mr. Lucyk.

We will hear now from you, Mr. Hitchcock.

ORAL ARGUMENT OF CORNISH F. HITCHCOCK, ESQ. ON BEHALF OF APPELLEE

Mr. Hitchcock: Thank you, Mr. Chief Justice, and it may it please the Court:

There are two ways that a lawyer may be admitted to the Virginia Bar.

The first method is to take and pass the bar examination which is administered twice a year and which is available to all applicants who meet certain educational and character requirements.

The second method is the one at issue here and it allows lawyers to be admitted without taking the bar examination if they meet three requirements: first, they have been licensed for a least five years by a state which extends the same opportunity to Virginia lawyers; second, they are willing to comply with the full-time practice requirement; and, third, they are permanent residents of Virginia.

I should add that these are ongoing requirements, that one may be liable to expulsion from the Virginia Bar if a motion applicant moves out of the state or ceases to practice there on a full-time basis.

The residency requirement that is the focus of today's case is justified on two grounds: first, that it assures a lawyer's commitment to the state; and, second, that it helps to assure compliance with the full-time practice rule.

If I may, at this point, I'd like to respond to a point Mr. Lucyk made in response to Justice O'Connor's question about after hours availability.

This is the first time we have heard the argument that lawyers must be available after 5 o'clock or that that's one of the purposes of why the rule is in effect.

I think it's unlike the cases involving police officers or fire officers who are expected by municipality to be available after hours.

To the extent that Virginia did want to impose such a requirement, however, Ms. Friedman is willing to honor any commitment that Virginia imposes upon its own citizens.

That's really what I think is the core issue here.

She is willing to do whatever Virginia asks its own citizens to do in order to be admitted on motion.

She is complying with the full-time practice rule.

She is willing to pay Virginia Bar dues.

She is willing to take the continuing legal education requirements that Virginia imposes upon bar members, regardless of whether they are admitted on motion or by examination.

She is willing to do pro bono volunteer work.

Despite all of these commitments, her application was denied solely because of the fact that when she leaves the parking lot at night she goes home to Maryland.

Before discussing the privileges and immunities clause legal issues, I'd like to make a comment on the facts here which might help put the issue in perspective and show how unconnected residence is with the goals that the state is advancing.

Ms. Friedman began work with her current employer in Virginia in January of 1986.

At that time, she was living in Virginia and qualified for admission on motion under Rule 1(a)(1).

The problem in her situation is that the next month she got married and moved to her husband's home in Maryland.

Suppose instead of getting married then, she had waited a year, had been admitted on motion.

If at the time she got married a year later, she wanted to move into her husband's home in Maryland, she had to chose between facing the possibility of some expulsion or disciplinary action under Rule 1(a)(3) or else sitting down and taking the full Virginia Bar examination.

While the situation may not be universal, I suggest it illustrates one way in which this rule does not advance the goals that the Commonwealth suggests.

Unidentified Justice: Is that such a terrific hardship to sit down and take the Virginia Bar?

I mean that's really what this all comes down to, that she just doesn't want to take the Virginia Bar examination.

Mr. Hitchcock: It is, Your Honor, particularly vis-a-vis equally qualified applicants in the same situation she is who are making the same commitment.

Let me, since you bring it up, illustrate that it does impose a hardship.

First of all, a lawyer who has to take the examination must wait up to six or seven months in order for the examination to be administered.

They then must wait an additional three--

Unidentified Justice: That is true of everybody getting out of law school.

They have to wait for awhile for the exam and no one gets it instantly.

Mr. Hitchcock: --Yes, Mr. Chief Justice, but here again we are dealing with experienced lawyers who the state is willing to say we will excuse you from this waiting time, from this obligation, if you live in Virginia.

As a result of that, it puts her in a slightly different position.

Unidentified Justice: She just couldn't work at her job for six or seven months.

Mr. Hitchcock: That is true, too.

The other thing here is that this rule offers a special opportunity for experienced lawyers, people who are out practicing, holding down a full-time job, holding a full-time practice, who have to take time away from that practice in order to study for and prepare for the bar examination.

As we've pointed out, that is a fairly substantial burden on a practicing lawyer.

The review course which a lawyer would have to take, the most popular one meets for twenty hours a week for six weeks before the bar examination.

A lawyer is likely to have to take that, plus spend additional time preparing.

Moreover, the lawyer who has to go through--

Unidentified Justice: But there is no doubt, I take it, that Virginia could require that of everyone.

Mr. Hitchcock: --That is correct.

They could require the examination of everyone.

But what Virginia has said: we don't believe that people should, that experienced lawyers should be obliged to take this test.

They don't have to prove themselves if they are willing to live in Virginia.

Having made that decision and having an applicant such as Ms. Friedman who has made exactly the same commitments and is presumably as competent as an equally qualified resident, the only issue is whether the fact she is willing to live in Maryland at night means that she must be tested to the same extent as someone just out of law school or somebody who already lives in the state.

Unidentified Justice: Well, Mr. Hitchcock, at least one state, rather one court, the Seventh Circuit, I believe, has held in a very similar situation that the right to be admitted to practice on motion just isn't a fundamental privilege, protected under the privileges and immunities clause.

Isn't that right?

Mr. Hitchcock: Let me address that.

The court, before it got to that point--

Unidentified Justice: In the Sestric case.

Mr. Hitchcock: --The Sestric case, yes.

The Sestric case was distinguishable first of all because it held that the clause doesn't apply because the universe of people being advantaged are new residents of Illinois and the people being discriminated against were old Illinois residents as well as non-residents.

Finding no symmetry between residents versus non-residents, the court said that the clause does not apply for that reason.

That is not the situation here.

Unidentified Justice: I think the court also had the view that admission on motion just isn't a fundamental privilege.

Mr. Hitchcock: That was an additional point which they discussed.

But, here, the distinction that was made here, and I think in Sestric as well, is that as long as a state gives you some opportunity to get a license, that it is free to impose preferential or discriminatory conditions even if, as in this case, they would be run afoul of the Constitution.

It's like an unconstitutional condition that the court has recognized in other cases, that even if a state has no obligation to give a certain gratuitous benefit to people it still must grant that benefit in a manner that's consistent with the Constitution.

Unidentified Justice: Well, if admission on motion is not a fundamental privilege, then there's nothing unconstitutional about imposing that condition.

Mr. Hitchcock: If it were, but I think that you have to focus on what Piper held.

Piper said, consistent with a number of earlier cases, that it is the opportunity to practice law that is at issue.

More specifically, in Toomer, in Austin, the court said the inquiry is whether out-of-state residents are being treated on terms of substantial equality with non-residents.

Have state residents demanded for themselves a benefit which is not being extended to equally qualified non-residents.

That's precisely the situation here.

Virginia residents have the opportunity to be admitted in a very efficient and inexpensive manner, indeed, almost a risk-free manner and that option is simply denied to out-of-state residents.

I think the problem with the argument that's advanced by the state and in Sestric is the assumption that the clause only applies if lawyers are totally excluded from the bar, if out-of-staters are totally excluded from a certain privilege.

This Court has never held that.

I think this case is closest to the cases involving commercial licenses where a state has said we will let out-of-staters in but we are simply going to charge them a higher licensing fee.

Now, there may be no fundamental right to pursue a certain occupation.

In the fishermen cases, for example, the state may say that we are going to put such and such type of fish are off limits for environmental purposes and allow no one the opportunity.

But once they make a decision to allow someone to pursue their professional career in the state, they must make it available on terms of substantial equality to residents as well as non-residents.

To follow up on Justice Scalia's earlier question, there just is not that term of substantial equality here, to make lawyers, as a practical matter, take time away from their existing practice to review courses they may not have examined since they were in law school and probably are not going to be practicing in their practice in Virginia, to have to wait for ten or eleven months to be admitted through the exam process when lawyers can be admitted on four months by examination, to have basically a risk-free way of getting into the bar as opposed to the risk that any lawyer faces upon taking examination.

Indeed, I would suggest, for experienced lawyers that risk may be particularly greater.

If a lawyer has specialized in the tax field, there are a lot of subjects that that lawyer may not have addressed since he or she was in law school and must bone up on them and risk the possibility of failure even though that lawyer is not going to deal with them.

Finally, there's one additional aspect where there is a penalty here.

If Ms. Friedman had stayed in Virginia, she could have been admitted to the bar on motion by paying a fee of $225.00.

Because she moved out of the state, she is required to pay $100.00 extra in order to take the bar examination.

It's an example of the preferential treatment.

Unidentified Justice: Can't a state make an added fee there for non-residents because of the added difficulties of investigating their background?

Mr. Hitchcock: It may, Mr. Chief Justice.

Indeed, in this case, for exam applicants there is a differential that is directly related to that cost.

If a lawyer seeking admission on examination wants to take the examination, he or she is interviewed by a local bar committee in his or her home county.

The cost, I believe, is $50.00 for everything else... I'm sorry, $150.00.

But if that lawyer lives out of the state and wants to take the examination, there is an extra charge of $175.00 solely for the character reference analysis.

That sort of distinction, which is directly tied to the extra burdens of investigating character of people who live out of state, I don't think we would challenge because of that direct tie.

It's closely tailored.

There is a substantial relationship under the criteria this Court has enunciated for that kind of criteria.

But that's not this case.

You take a person who is equally qualified and the fact that she gets married and moves to her husband's home in Maryland means she has to pay more--

Unidentified Justice: Did you challenge that explicitly in the Fourth Circuit?

Did they cover that in their opinion?

Mr. Hitchcock: --No.

We did not challenge the differing fee.

The point I'm making, to get back to Justice Scalia's first question, it's part of the burden that is being placed on lawyers who are as qualified as Virginia residents but who have to take the examination.

Justice Scalia asked isn't this about somebody who doesn't want to take the examination.

My answer is yes, because there are important practical consequences if one must take the examination as opposed to being able to be admitted on motion.

And they are: the greater risk, the higher cost, the review course, and the additional time that has to be spent.

Those are practical matters that concern experienced lawyers.

Unidentified Justice: Mr. Hitchcock, I tend to agree with your point that this a pretty blunt way and inefficient way of achieving what Virginia asserts it has in mind, that is some assurance of full-time interest.

But I would think it would normally, that fit, would normally be enough in a run-of-the-mind equal protection case, to meet a rationality test.

It's pretty blunt, but close enough for government work as we say.

What you're arguing, it seems to me, is that once you identify a fundamental right that's subject to the privilege and immunity clause, every aspect that has anything to do with that right suddenly gets elevated to a point where there can't be any loose fit at all.

You're really requiring very refined judgements by the legislature, by the Supreme Court of Virginia here.

Why should we go along with that?

Why shouldn't we just say, if you're excluded that's bad.

But here, you're not excluded.

What we're arguing about is whether you have to take the bar exam.

That's not a privilege or immunity.

Mr. Hitchcock: The answer, Justice Scalia, is that this Court has required a heightened form of scrutiny whenever there is preferential treatment for out-of-staters vis-a-vis equally qualified in-staters.

It's part of the importance that the privileges and immunities clause plays on the Constitutional framework, of not allowing equally qualified people from another state to be denied a certain benefit.

The standard, I guess, in the Camden case, as well as in the Court's decision in Piper, is not... it says that there must be a substantial reason for the discrimination or the preference in question and there must be a close fit.

It has employed heightened scrutiny, more than is required in the rational basis cases, given the importance of the clause in not erecting barriers between people who are trying to pursue professional pursuits in the different states.

So, my answer is the Court has required the opportunities, but they do provide opportunities if the consideration is closely tailored.

As I indicated in response to the Chief Justice's question, if somebody wants to take the examination but lives out of the state and cannot be examined by a local character committee, he may be able to charge them a little bit more money to have the National Conference of Bar Examiners do the work.

But that's very different in kind from a rule that says we have two equally qualified lawyers, both working side by side in the same office, both making the same commitment, both willing to represent Virginia lawyers, and one of them can be admitted because he or she lives in Virginia... on motion because he or she lives in Virginia... and the other has to take the bar examination because she crosses the Theodore Roosevelt Bridge on her way home at night is not a substantial fit.

There's not a substantial reason for making a distinction on that basis.

There are other more closely--

Unidentified Justice: Well, is this much different than would be a Virginia rule that said if you graduate from a law school in Virginia you need not take the bar?

But if you graduate from any other law school you must?

Mr. Hitchcock: --I think if the rule said that Virginia lawyers may be admitted without taking examination--

Unidentified Justice: No.

Graduates from Virginia law schools.

Mr. Hitchcock: --provided that admission to a Virginia law school was available to out-of-state residents, that out-of-staters could try to get in to the Virginia Bar through this method, no, I don't see a problem with that.

Unidentified Justice: Well, if they say if you graduate from Virginia law schools you need not take the bar, but if you graduate from any other law school in the country you must take the bar?

Mr. Hitchcock: I don't think there would be a problem with that.

And the reason is that if you're creating a preferential way of obtaining a license, so long as there's an option for lawyers who want to avoid the examination of taking advantage of that, i.e., by attending the Virginia law school, then I wouldn't see the problem because you have the open access.

The critical point is that one must attend the Virginia law school, and lawyers who say I want to practice in Virginia, without having to take an examination, have an opportunity to pursue that option regardless of their state of citizenship or where they come from.

Unidentified Justice: So, the bar exam isn't much of a fundamental right, having to take the bar exam?

Mr. Hitchcock: The fundamental right is the opportunity to pursue one's professional pursuits free from restrictions that discriminate solely on the basis of state citizenship and which are not substantially related to a state's goal.

That's really what we're talking about here.

The question is not do you have some means of pursuing your profession?

The Court did not ask that question in the fishermen cases or even in Piper.

The argument in Piper was: sure, you can practice in New Hampshire.

You can appear pro hac vice and come in on individual cases.

We're not keeping you out.

There's a way you can come in and practice law in our state, but we're just not going to let you obtain a particular license.

The fundamental right, going back to Courtfield v. Coryell, and in every subsequent case through Piper, has focused on can somebody pursue their career in a manner, with the same, on terms of substantial equality with in-state residents.

That is simply not being provided here.

The only reason why she's being excluded is her citizenship in another state.

Virginia has made a decision that its own citizens don't have to take the bar examination if they meet these criteria.

Having satisfied the same criteria, the only question is may she be excluded.

If I may, I'd like to turn now to the specific rationales that the Appellants have raised in defense of this particular rule.

The first rationale is that it promotes a lawyer's commitment to Virginia.

My initial comment is I'm not really sure what that means.

It seems to be a reformulation of the arguments which the Court rejected in Piper about how residence assures one's competence and commitment and ethical behavior and willingness to do volunteer work and the like.

I think there was a very straightforward answer which the Court gave in Piper that I think answers this concern.

The Court, as we read the case, took a very pragmatic approach.

It said: lawyers are not going to seek admission to a bar unless they anticipate a considerable practice there, unless they are willing to take on the burden of paying bar dues and continuing legal education requirements, and any pro bono requirements, anything else that the state may seek to impose.

There is an ongoing investment, a personal investment, of time and money that lawyers make if they seek admission to a bar, regardless of whether they are admitted on examination or admitted on motion.

Suppose, for example, an experienced lawyer is asked by a client can you represent me in Virginia or in Maryland.

If it's a one-time offer, the lawyer may have no need to be admitted and may not seek to be admitted as a member of the bar.

But if the client says can you represent me on a regular basis.

Can you come in and handle all the litigation I've got or all this kind of work that I have in that state, the lawyer may say it's worth my while to seek admission to that bar, with all the benefits as well as the responsibilities, that that entails.

So that is why, we would suggest, that the arguments about commitment which the Court rejected in Piper apply with equal force in the context of motion admissions, regardless of whether there's a lesser burden in terms of being able to be admitted on motion without taking the examination.

Lawyers don't seek admission to state bars unless they anticipate that they are going to use the opportunity to practice there and unless they are willing to shoulder the burdens.

I think that's particularly... I just added a footnote to that... true, I think, in states where lawyers seek to practice on a multi-state basis.

Lawyers are not going to want a license to practice in two or three states and expect to practice there unless they are willing to honor whatever commitments are entailed with multiple bar membership and multiple practice.

Even if the Court were not willing to stop there and say that these reasons... the argument is not sufficiently substantial... there is an additional factor here that is unique to Virginia that I think should lay to rest any doubts about the validity or invalidity of the residence requirement.

I'm speaking specifically about the full-time practice rule.

If Virginia may validly seek to say that all lawyers admitted on motion must commit themselves to full-time practice in the state, then the residency requirement becomes, as the Fourth Circuit says, redundant.

Unidentified Justice: Mr. Hitchcock, what do you understand is meant by the full-time practice requirement?

Mr. Hitchcock: The only interpretation that the Supreme Court of Virginia has provided is in the Titus case, which we cite in Footnote 2 of our brief, which is that a lawyer must have an office in Virginia and must practice there on a, quote, regular, unquote, basis.

The court... that's a 1972 or 1973 decision... has not construed it since then.

Regular, they apparently equate with full-time but I'm not sure about what would happen if lawyers did other things, even if they were living in Virginia, if they wanted to do things other than practice law forty hours a week, thirty-five hours a week, or whatever it may be.

The court has not provided any more specific guidance and there are no disciplinary opinions or other rulings that provide clearer guidance on this point.

Unidentified Justice: Mr. Hitchcock, do you think the full-time practice requirement is Constitutional?

Mr. Hitchcock: Your Honor, in cander we argued in Goldfarb v. Supreme Court of Virginia that the full-time practice requirement was invalid under the commerce clause.

Unidentified Justice: If that's an invalid requirement, how can it be a substitute for protection for what the state seeks to protect here?

Mr. Hitchcock: Well, as I indicated in the earlier point, I think the Court could stop just by saying... by following Piper in saying that one's commitment to Virginia is sufficiently assured without regard to whether or not there's a full-time practice requirement.

Unidentified Justice: You mean by the mere fact that your client applied for admission?

That's enough?

Mr. Hitchcock: The fact that she applied for admission and the fact that she was willing to do anything that Virginia seeks to ask her short of full-time practice would be enough here.

Unidentified Justice: Because she's represented she's willing to do it.

But how can they enforce those representations?

Mr. Hitchcock: I'm sorry, which representations?

Unidentified Justice: Well, you say she will practice full-time.

Supposing her client opened a branch office over in Annapolis or someplace, with a subsidiary, and asked her to devote part of her time to supervising the affairs of that corporation?

She couldn't do it.

Mr. Hitchcock: She couldn't do it, but neither could a lawyer who happened to live in Arlington.

If the Virginia firm--

Unidentified Justice: Unless both requirements are invalid.

Mr. Hitchcock: --Unless both requirements... well, for the--

Unidentified Justice: And both seem somewhat restrictive.

Mr. Hitchcock: --They are.

I mean, the full-time practice requirement does have some of the same problems of the residence requirement.

What it does is it allows a lawyer into the state only if they agree to give up all interstate or multi-state practice.

I would add, although it's not essential to resolution of this case, multi-state practice is the sort of thing which I think states should be encouraging.

As Chesterfield Smith, the former American Bar Association president, noted in an article which the Court cited with approval in Piper, as lawyers get older and more experienced the demand for their services across state lines increases and restrictions which limit their ability to practice really disserve the public and disserve the clients who may need and wish to retain their services.

Unidentified Justice: Yes, but as you develop that argument what do you say about the state's position that really what's going to happen here is that the states are all going to start requiring bar exams and that will make the problem even more acute?

Mr. Hitchcock: Well, my answer is that... two answers to that.

First of all, there's no case of which I am aware involving discriminatory or preferential treatments where any court has tried to predict what's going to happen.

When a preferential law is struck down, a state has two choices: they can make the benefit available to everyone or they can make it available to no one.

This Court has never held, certainly, that a reviewing court or reviewing judge should say: what is the state likely to do?

Does that result constitute sound public policy in my mind and, therefore, I'm going to uphold the Constitutionality or strike down the Constitutionality based on that prediction.

Unidentified Justice: But it's very rare that the whole reason for an individual's asking us to strike it down is the same reason that would be frustrated by one of the courses that the state might take.

That's what seems, to me, ironic about this case.

The very reason you're urging this upon us is to enable freer commerce between the states in legal services.

And it's quite possible that the result you are going to achieve, if we hold the way you want, is to reduce that freedom rather than increase it.

Mr. Hitchcock: It may be a possibility but that's a risk involving any kind of preferential law.

There are also, I think, corrective mechanisms.

I mean, the people who are injured if this provision were to be withdrawn are not only lawyers from out of the states, but Virginia law firms who may want to make it easier to recruit lawyers, and may be willing to say to the Virginia Supreme Court or the legislature which created this option in the first place: we'd like the opportunity, it's really difficult because everyone has to take the bar exam, would you consider some kind of waiver of the exam for people, without regard to the fact that they may chose to live outside the state.

There are other corrective mechanisms but, again, regardless of the ironies, if an institution decides to close down or no longer make certain benefits available because it has to admit other people, that's not an argument that it's Constitutional or valid or should be upheld.

It's the Court's function, I would respectfully submit, to apply the law here and to let the consequences be decided based upon what the Court's ruling is.

And here, even if the Court does, if the full-time practice rule remains in effect... although as I indicated in response to Justice Stevens, there are problems with that... that should be enough to satisfy the goals that the state seeks to achieve with respect to assuring a compliance, competence, whatever else.

I think that specific argument is undercut by the fact that Virginia has no enforcement mechanism and the notion that without the residence requirement lawyers would be likely to set up sham residences is equally likely as the prospect that they will set up sham offices, which they're likely to do.

It might be said, ironically enough, if there are ironies in this case, the people who this rule keeps out now are those lawyers who cannot in good conscience say: I'm willing to practice full-time, I live in Virginia.

The lawyers who are allowed in under the rule may be those who don't honor their professional commitments to the same as someone like Ms. Friedman.

Those lawyers may be admitted to the bar.

They may be practicing in other states or living in other states.

The fact that there's no enforcement mechanism may be keeping out the people who can serve Virginia clients well, allowing in those who are not doing the sort of things Virginia seeks of people who want to be admitted on motion.

In the remaining time, I'd like to take a moment to talk about the other arguments.

If the Court should decide that the privileges and immunities clause doesn't apply here, as some of the questions have indicated, we still submit that the judgement should be invalidated under the equal protection clause, that there is no rational basis for holding that where a lawyer lives promotes compliance with the rule or promotes one's commitment to the jurisdiction.

In recent terms, the Court has struck down under that rational basis test some preferential tax laws which sought to give preferences to state residents vis-a-vis non-residents: the Court found that that effort to give the hometeam an advantage, as it said in one case, was not rationally connected to the goals which were advanced.

Unidentified Justice: What case are you referring to, Mr. Hitchcock?

Mr. Hitchcock: Metropolitan Life Insurance Company v. Ward, the Alabama tax insurance--

Unidentified Justice: Do you regard that as being good law today?

Mr. Hitchcock: --I'm not aware of any subsequent precedent that might cast doubt on it.

Unidentified Justice: I would think that Northeast Bank case cast considerable doubt on it.

Mr. Hitchcock: Well, in the Northeast Bank Corp, I think that was... Northeast Bank Corp. came before that, I think, by one term, but there is a difference there, I think, because you had the Congressional seal of approval upon the legislation in question there.

It was not simply an effort by a state to regulate without Congress having looked at the issue.

I think that would be a distinction, vis-a-vis this here.

Cases such as Williams v. Vermont, that was a case in which the state of Vermont gave an exception from paying a tax to Vermont residents who bought a car in another state, paid tax there and then came back to Vermont.

That was an exemption.

It's a benefit... something given to Vermont residents that was not given to citizens of other states who bought a car in, say, New York, paid the tax there, came into Vermont and had to pay the tax again.

The Court there rejected the justifications that were offered about what amounted to a higher burden on state residents, Vermont residents, vis-a-vis out-of-state residents.

We've also suggested that the provision would be invalid under the commerce clause for some of the reasons that I suggested earlier in colloquy with Justice Stevens.

And I see that my time has expired.

If the Court has no further questions, we would ask that the judgement of the Fourth Circuit be affirmed.

Chief Justice Rehnquist: Thank you, Mr. Hitchcock.

Mr. Lucyk, you have four minutes remaining.

ORAL ARGUMENT BY GREGORY E. LUCYK, ESQ. ON BEHALF OF APPELLANTS -REBUTTAL

Mr. Lucyk: Thank you, Mr. Chief Justice.

If it please the Court:

I'd first like to respond to something that Justice White said during my... Appellee's argument here, and that is that you expressed concern that if the Appellee were required to take the bar examination she wouldn't be able to work for six or seven months.

That is simply not true.

The bar examination is only a two-day examination and the bar review course that is offered for that occurs in the evening hours.

In fact, the Appellee could apply for the bar examination in May, take the bar review course, take the exam at the end of July, and she'd admitted to the Virginia Bar by October.

Unidentified Justice: Well, a lot depends on when she decides to make this decision, isn't it?

The bar exam is given twice a year.

Mr. Lucyk: That's correct.

It's given in February and July.

In her case, she sought admission to the bar, she wrote her letter in early summer, and she was still within the time frame that would have allowed her to--

Unidentified Justice: She was working in Virginia.

She had a legal job in Virginia, and until she takes the bar and passes it, she is not supposed to act like a lawyer in Virginia.

Whatever the time is, it may be a day, it may be two weeks, but while she's waiting to pass the bar she can work as a lawyer.

Mr. Lucyk: --I think, you know, that's an interesting question, Justice White.

Unidentified Justice: Well, do you think she could open a law office and hold--

Mr. Lucyk: I think she certainly could advise her clients on federal securities law, which was the bulk of her work.

Unidentified Justice: --Well, could she open an office in Virginia until she passes the bar?

She couldn't, of course.

Mr. Lucyk: She could be employed by her corporation as she was.

Unidentified Justice: I just asked you, could she open an office and practice law?

Mr. Lucyk: She could not hang out her shingle as a sole practitioner.

No, she could not.

Unidentified Justice: And she can't act like a lawyer working for this organization, either.

Mr. Lucyk: But, Justice, neither can the reciprocity admit you until they get that license to practice law.

In reality, the time it takes is about the same.

If you apply for the bar exam in May and are admitted in October, that four to five month period is the same period of time that it takes for someone to apply for reciprocity, to have the papers processed by the National Conference of Bar Examiners, and to do the other things that have to be done.

The average period of time is about four months.

So, we're not talking about a difference in time commitment.

There's no question, and we're not going to deny, that the bar examination imposes a burden.

We believe that our restricted license by reciprocity also imposes a burden on applicants.

It offers a choice of burden.

The choice is: the burden imposed, or the initial burden, of taking the bar examination establishes the assurance of commitment and competence and frees that lawyer from any other long term burdens.

There's no requirement to maintain a full-time practice or even an office in Virginia.

And, certainly, there's no requirement of residence in Virginia.

On the other hand, the reciprocity rule imposes a long term burden.

Yes, it does alleviate the initial requirement of the examination but for as long as that person intends to practice law in Virginia, they have the burden of maintaining that full-time practice, complying with that rule of residing in the state, and making themselves available on a full-time basis to serve Virginia clients.

The facts in this case are atypical and for that reason we submit that the principle here is much broader.

The principles at stake are much broader than the facts of this case.

Yes, Ms. Friedman, the Appellee does live close to the border.

But the majority of reciprocity applicants aren't going to live that close.

They're going to live many more miles away and further distant locations.

So, the particular facts about her closeness or nextness to Virginia are not going to apply in the majority of the cases.

Unidentified Justice: Well, is that right if they practice full-time in Virginia?

Don't you have to presume they live pretty close?

Mr. Lucyk: Well, I don't think so.

I think if we must rely on the promise then we've got to rely on that same promise from someone who lives in Laurel or near Baltimore, that they, in fact, intend to commute every day to Virginia and when they go home in the evening they are not going to establish... you know, through social or community contacts... an outside practice.

If you require us to make that presumption in this case, where on its face, yes, it seems that that presumption may be legitimate, then we've got to make it in every case.

And that's my point, that the rule doesn't apply just to this unique factual situation.

It applies to all of the conceivable situations.

Chief Justice Rehnquist: Mr. Lucyk, your time is expired.

The case is submitted.

Print this transcript Transcript: 

ORAL ARGUMENT OF GREGORY E. LUCYK, ESQ. ON BEHALF OF APPELLANTS

Chief Justice William H. Rehnquist: We will hear argument first this morning on Number 87-399, The Supreme Court of Virginia v. Myrna E. Friedman.

Mr. Lucyk, you may proceed whenever you are ready.

Mr. Lucyk: Mr. Chief Justice, and may it please the Court:

This is a very important case with a very ironic twist.

It's ironic because this case involves an attack under interstate privileges and immunities grounds against the Virginia Supreme Court rule which is intended to promote the interstate mobility of experienced attorneys by providing them with a limited form of bar admission without examination.

Presently Virginia is among the minority of states with what you might call liberal bar admission policies.

Twenty-eight states, in fact, limit interstate mobility of lawyers.

They provide no form of bar admission without examination.

This is a vulcanization of the legal profession, and this is a vulcanization which has accelerated in recent years and, in fact, eight states have dropped reciprocity admission since 1985 alone.

This case is very important because it brings the Court to a crossroads.

If this attack on reciprocity admission is sustained, the decision could hasten the trend of the states toward exclusionary bar admission policies and, in fact, thwart the principles of interstate harmony underlying the privileges and immunities clause.

Unidentified Justice: Would that be bad?

Mr. Lucyk: Your Honor, the decision would, in fact, defeat the purposes of the Constitutional provision.

It would be bad.

On the other hand, the decision upholding Virginia's rule could reverse the current trend and encourage the states to restore interstate mobility afforded by reciprocity admission.

It is helpful first to focus on what is and what is not before the Court.

This is not a rerun of Supreme Court of New Hampshire v. Piper.

Virginia does not restrict admission to the bar only to Virginia residents and, in fact, the record in this case establishes that 13 percent of Virginia's 14,000 bar members are nonresidents admitted by examination.

Nor is this a challenge of the right of the states to require an applicant to prove knowledge and competence in local law and to demonstrate a commitment to providing service in the jurisdiction before they may be admitted to the bar.

Finally, the Court need not address the right of the states, as twenty-eight states do, to require all applicants to take a bar examination or stand for an examination to demonstrate this commitment and competence in local law.

What is here is a very narrow issue and it is the right of Virginia to provide an exception to the general admission requirement of examination.

Unidentified Justice: Mr. Lucyk, now what do you say is the main purpose that Virginia has in making the residence requirement?

There is, as I understand it, already in Virginia a requirement of full-time practice in Virginia to be admitted on motion.

Mr. Lucyk: That is correct, Justice O'Connor.

Unidentified Justice: So what is there above and beyond that that is Virginia's interest in the residence requirement?

Mr. Lucyk: Virginia's interest in requiring residence is to ensure that this is, in fact, a restricted license to practice law.

Admission by examination is a form of general admission.

It entails no long-term restrictions, whereas Virginia intends by its reciprocity program to encourage lawyers, experienced lawyers, to come into the state and provide their full-time availability to the service of Virginia clients.

Unidentified Justice: The fact that they agree to work full-time in Virginia is not enough to meet that?

Mr. Lucyk: Justice, the full-time practice requirement serves to provide 9 to 5 availability, but it does not promote availability of that attorney to Virginia residents and Virginia clients beyond those normal office hours.

That is the function of residence.

Unidentified Justice: Is there any state bar requirement that a lawyer give a certain amount of pro bono service or have an office open beyond 5 o'clock, or something like that?

Mr. Lucyk: No, Justice O'Connor.

The Virginia Supreme Court presumes that applicants admitted by examination have demonstrated that commitment to the practice of law in the state, that they will provide without any requirement that commitment to providing pro bono services and making their services available.

We do not believe we can presume that same commitment from someone who is merely paying the annual dues and making an annual promise.

Unidentified Justice: And practicing full-time?

Mr. Lucyk: And practicing full-time in the state.

That is correct.

We are asking our practitioners admitted by reciprocity to provide, to demonstrate, a greater commitment, and that is to be available during office hours, during the evenings, during the weekends, to provide pro bono services and to make services available to Virginia clients.

That is the purpose that is provided by residence which full-time practice alone--

Unidentified Justice: What does full-time practice in Virginia mean?

Just your availability that you have just described?

May he have a case in the federal court in the District of Columbia?

Mr. Lucyk: --Yes, Justice.

It is not a prohibition.

It does not completely prohibit.

Unidentified Justice: Well he is not practicing full-time in Virginia if he spends a week trying a case in San Francisco.

Mr. Lucyk: No, Your Honor, but that doesn't defeat the purposes of the full-time practice rule which in and of itself is intended to ensure that an attorney has sufficient contacts with Virginia law on a consistent basis.

Unidentified Justice: That may be the purpose, but is it the language of the rule?

Isn't the rule rather vague in its structure?

Mr. Lucyk: The rule is vague, I would agree with you, in its language but it has been interpreted by the Virginia Supreme Court in In Re Brown in 1972 and in In Re Titus.

The Court defines its rule to mean that the applicant must open an office for the practice of law in Virginia and engage regularly in the practice of law from that office.

Unidentified Justice: You certainly have many lawyers practicing law who have lived all their life in Virginia and yet cannot be admitted to the Virginia bar.

Is that not true?

Mr. Lucyk: I don't know if that is true or not, Your Honor.

Unidentified Justice: You must know some.

I do.

Mr. Lucyk: I do know of one.

I do know of one and that was a gentleman who sued the Virginia Supreme Court over the full-time practice requirement in 1985.

I assume there are others, but I don't think the number is so great that it is substantial or at least as a factor in this case.

Unidentified Justice: How does the Supreme Court of Virginia police the full-time practice requirement.

Is it an easy requirement to police?

Mr. Lucyk: It is not, Mr. Chief Justice.

We rely upon, essentially, reports from other members of the bar or someone advising or informing the bar disciplinary body that the rule is not being complied with.

It is not a self enforcing requirement and, therefore, we rely on the additional exposure to the state occasioned by residents to allow or to provide for additional scrutiny of the attorney.

Unidentified Justice: For what period of time must the lawyer be a full-time practitioner in Virginia?

Mr. Lucyk: So long as the person intends to hold on to that restricted license to practice by reciprocity.

It is a continuing requirement.

Unidentified Justice: Does the license itself contain the restriction?

Mr. Lucyk: No.

The licenses, the general license that is issued--

Unidentified Justice: Has any lawyer ever been disbarred for practicing elsewhere?

Mr. Lucyk: --To my knowledge, Your Honor, there has been one disciplinary case involving noncompliance with the full-time practice requirements.

There may have been others, but I am not--

Unidentified Justice: What happened in that case?

Mr. Lucyk: --I do not know the specific facts of that case.

Unidentified Justice: Were there other charges as well as failing to practice--

Mr. Lucyk: I believe there may have been.

Unidentified Justice: --So, as far as you know, nobody has ever been disbarred simply because they practiced somewhere else?

Mr. Lucyk: No, Your Honor, and, frankly, there haven't been that many attorneys who have been admitted by this rule up to that time.

Unidentified Justice: What about the residence requirement?

How long... say, the person lives in a hotel over in Arlington and at the time of making application gets the certificate and then moves to Maryland.

What do you do about that?

Mr. Lucyk: That individual would be out of compliance with the rule and would be subject to revocation.

Unidentified Justice: Has anybody ever had their license revoked for moving from Virginia to Maryland?

Mr. Lucyk: I'm not aware if there have been, Your Honor, and, again, the numbers in the past haven't been that great that compliance has posed great problems.

Unidentified Justice: Why is that?

That surprises me.

You may have noticed there are a lot of lawyers in Washington, D.C., and a fair number of them live in Virginia.

And I would assume that practicing in Washington as counsel for a government agency, for example, or on the staff of a government agency would not constitute the regular practice of law in Virginia.

There must be a lot of lawyers.

Mr. Lucyk: It would not, Justice Scalia.

And there are quite a few lawyers who reside in the area and who practice up here who take the Virginia Bar examination.

There are a significant number, in fact.

Nearly 2,000 of our bar members are nonresidents admitted by examination, so it's certainly a reasonable and adequate alternative which is available.

Unidentified Justice: Now, once they are admitted by examination they do not have to engage in the regular practice of law in Virginia?

Mr. Lucyk: That's correct.

Once they have passed the examination, they've demonstrated their competence in local law and they have certainly established, or shown a commitment, to a substantial practice in the jurisdiction.

Unidentified Justice: But then they aren't, as you say, available twenty-four hours a day.

Not necessarily.

Mr. Lucyk: No, Justice White.

It's a different kind of license.

Admission by examination--

Unidentified Justice: And after examination, they can move out of the state, too.

Mr. Lucyk: --Yes, sir, Justice.

We can presume, and this Court has made clear: you can presume that in real life no one is going to take the bar exam unless they intend to make a substantial commitment to practice in the state.

Unidentified Justice: Well, they intend to practice in Virginia.

The only thing is they change their mind after a couple of years and join a firm in another state.

Mr. Lucyk: And the Virginia Supreme Court doesn't object to that and it has no problem with that.

Someone who has taken the examination has shown that commitment to Virginia.

Unidentified Justice: Let's assume two brothers are practicing law in a partnership in Chicago.

They decide to set up a partnership, move to Virginia with their business, and so they set up a partnership in Virginia.

And one of them lives in Virginia and the other one lives across the line in Maryland.

I take it one can be admitted on motion and the other cannot.

Mr. Lucyk: That's correct, Justice.

Unidentified Justice: I'm not sure that makes a whole lot of sense.

Mr. Lucyk: Justice, it certainly makes sense when you view the purposes of the rule as a whole, and that is to encourage lawyers to move and provide services not just in the border areas of Virginia but all over the state, in the southern and western mountains, in the Piedmont region, on the Eastern Shore.

The purpose of the rule, and the rule was adopted, to make it easier for older practitioners to move into the state and to establish a practice, maybe those who have to move because of some change in their personal or professional commitments.

It also assists, for instance, the state and local government law offices or even Virginia's free legal services programs for low-income people who must recruit from a small pool of--

Unidentified Justice: Do you really think this law attracts lawyers to go out into back woods and practice?

Do you really think that?

Mr. Lucyk: --I think the law provides that purpose.

Unidentified Justice: Does it do it?

Does it attract them?

Because my next question is how many has it attracted so far?

Mr. Lucyk: Justice, I have no empirical evidence to show how many lawyers may have been attracted to particular areas of the state, but I do know that, for instance, our legal services program and farm bill will rely upon this rule to bring attorneys in and get them admitted so they can represent indigent people in that area.

You know, the rule does serve that beneficial purpose.

So, in effect, we view waiver of the examination as an incentive to give lawyers the opportunity to come into the state and devote their full time and make their availability to the practice of law and the service of Virginia clients.

In that sense, the rule, we submit, is a bridge which actually promotes interstate mobility.

It's a bridge across state lines and it is a bridge which is not provided by twenty-eight other states which require all practitioners to take the bar examination.

Unidentified Justice: Yes, but it still would perform that function if you knocked out the feature of the rule that they challenge.

Mr. Lucyk: Justice Stevens, I think the problem is that it would not perform that function to the extent the Virginia Supreme Court would like it to because, again, we are talking about an attorney's commitment to full-time availability.

And someone who leaves the state, who leaves the area, and goes to a distant location in another state is not going to be available to the same extent as someone who resides directly in the community and is available for a visit in the evening.

The other thing that the residence requirement does in terms of aiding in the enforcement, or at least compliance with full-time practice, is it ensures that the attorney's social contacts and community contacts aren't going to bring that attorney additional business.

Now, if our attorney who resides in Vienna, Virginia, you know, has social contacts, meets people on weekends and the evenings, people who ask legal questions and need services, and the attorney says, sure, come on into my office and we'll talk about it, that attorney is not facing the potential of developing a substantial out-of-state practice.

Whereas our attorney in Cheverly, Maryland, who is meeting with his or her social contacts in the evenings or on the weekends, who are Maryland residents, and these are persons who are saying, look, I've got this legal problem, come on in to my office, well, then we see an expanding or growing out-of-state practice which defeats the purpose of full-time practice.

Unidentified Justice: Well, I certainly want to congratulate Virginia on wanting to get more lawyers in this way.

It certainly is that most states seem to think they have too many, and you're describing this as really a device to bring in as many lawyers as possible.

I thought we were arguing about an exclusionary aspect of it, not an inclusionary aspect of it.

Mr. Lucyk: Well, Justice, I think our point here is that that you've got to look at the rule as a whole and what is it intended to do.

If you look at it at a narrow focus, and if you look at it from the eyes of someone who thinks there should be no restrictions in each state for admission to the bar, then it may appear to be exclusionary.

But if you look at it from the eye of a state supreme court that wants to make legal services available to its citizens, yet still provide some guarantee of competence and commitment among its attorneys, then it is an inclusionary rule.

It does.

It serves as an invitation for experienced attorneys to come into the state and begin servicing Virginia clients on a full-time basis.

So, it is, indeed, we would submit, an inclusive not an exclusive rule.

It is a bridge across state lines which applies only to foreign attorneys.

It does not apply to resident attorneys.

The rule is intended to apply and it's called foreign attorneys, to allow those foreign attorneys to migrate, settle and abide in Virginia and begin earning their living and assisting Virginia clients by engaging in the practice of law.

Unidentified Justice: If we agree with the Appellee in this case, what will be the consequence?

Will everybody have to take the exam or nobody will have to take the exam is what I'm talking about.

Mr. Lucyk: That would be up to the Virginia Supreme Court.

I do know the supreme court, if this requirement of residence is struck down, will re-examine its rule to determine whether it meets their expectations of assuring commitment and competence from untested practitioners.

And I think, I would submit, I'll speculate, and I'd be willing to bet all the money in my pocket on that the fact that if residence is struck that reciprocity in Virginia will be eliminated.

I think that we have to consider that it's not a ramification that may occur only in Virginia.

There's been amicus brief filed by four states in this case, and all of those four states joined in a brief that said residence is going to cut into our ability to ensure that our practitioners are committed to serving, to practice the law, in the state.

One of those states, Wyoming, has already abolished its reciprocity rule.

It did that in December.

Unidentified Justice: Four out fifty is not a very good recommendation to me.

Mr. Lucyk: Well, Justice, there are already twenty-eight states which do not provide admission without examination, so we are looking at twenty-two states.

Of those twenty-two, seven of them require residence.

Unidentified Justice: Twenty-two doesn't say too much to me.

Mr. Lucyk: So the numbers really are, I think, more in favor of our position and if these seven states abolish reciprocity then we are looking at no more than fifteen, a handful of states which still include reciprocity.

The other point that we would like to make is that discretionary admission without examination has been subject to further Constitutional attacks on a regular basis involving these so-called interstate harmony provisions of the Constitution.

We can see further attacks down the road on the full-time practice requirements.

For instance, a non-resident attorney will then challenge the full-time practice requirement saying it imposes an excessive burden on the non-resident who has to maintain an office in the state.

So we may see full-time practice disappear.

We may also see the requirement of reciprocity disappear, because it is, indeed, a reciprocity program.

Texas, for instance, will not admit Florida lawyers to its bar because Florida law requires everyone to take an examination.

The same applies to Louisiana lawyers, all of whom are required to take an examination.

I can see the Louisiana lawyer suing the Texas State Bar because they do not grant reciprocity to Louisiana lawyers, and that being struck down on the Commerce clause because reciprocity is a protectionist provision that the Commerce clause bars.

And once that happens, then all of the rest of those states are going to fall like dominoes and we are going to have a complete vulcanization of the legal profession.

Unidentified Justice: Louisiana follows the Napoleonic law and not the common law?

Mr. Lucyk: That's correct, Justice.

Louisiana's different.

All of the states, I would submit to you, are different, some more so than others.

Unidentified Justice: It has civil law.

Mr. Lucyk: Justice, I think you are correct that Louisiana is the only state that has civil law--

Unidentified Justice: Thank you.

Mr. Lucyk: --but, indeed, all of the states and the principles of federalism, you know, provide that each state has its own laws.

Not every state has the uniform commercial code or other uniform laws.

In Virginia--

Unidentified Justice: You might try the Commonwealth of Puerto Rico.

That might help you out a little.

Mr. Lucyk: --Thank you, Justice Scalia.

So, our position then is that the application of the interstate harmony provisions of the Constitution against these reciprocity rules doesn't really make sense, because in a sense you are defeating the very purpose that these rules are intended to promote.

And I'd just like to state a few more words about why we believe that privileges and immunities clause ought not apply to discretionary admission without examination.

First, a holding in this case that we must admit the Maryland lawyer who under Rule 1(a)(1) without regard to residence, in fact, would require absolute equality in Virginia's treatment of residents and non-residents.

We submit this Court has recognized on numerous occasions that absolute equality is not a prerequisite of the privileges and immunities clause.

And, in fact, this Court has approved the principle that the clause is satisfied if a state provides a reasonable and adequate means for the non-resident's enjoyment of the regulated activity.

Here, the bar examination is, in fact, a reasonable and adequate alternative means.

Unidentified Justice: May I ask you a question about the general subject because you know so much more about it than I do.

Has anybody ever challenged the reciprocity requirement itself?

In other words, what is the reason for saying a Florida lawyer where they don't have it should not be admitted whereas an Illinois lawyer may be admitted.

What's the reason for that?

Mr. Lucyk: What is the reason for the rule?

Unidentified Justice: Has anybody said that's subject to challenge?

Or any of these... talking about all the others.

Mr. Lucyk: No, Your Honor.

To my knowledge, that case hasn't been brought yet.

But it's only in very recent years that we've seen commerce clause and privileges and immunities challenges to these discretionary admission provisions.

And it's only recently that the courts have begun to apply those provisions to these discretionary admission--

Unidentified Justice: I'm just reflecting, in terms of the interest you describe of giving good service to the Virginia clients, it is puzzling to me why a Florida lawyer wouldn't qualify as much as an Illinois lawyer, if he had met the restrictions of full-time practice and residence if he moved from Florida.

But he would not be eligible?

He or she would not be eligible?

Mr. Lucyk: --Justice Stevens, let me articulate one reason why I think, you know... the presumption seems to be in this day and age that if there is any condition which limits admission to the bar it must be the product of economic protectionism.

But there is another very valid reason for a bar, a state bar, wanting to maintain a reasonable and controllable size of the bar it is required to regulate.

And by the 1990s, there will be one million practicing attorneys in this country.

It's a staggering thought for a bar-regulating authority to have to consider, even if just ten percent of those attorneys seek admission to the bar by reciprocity, regulating a bar of 100,000 attorneys or even more, especially for a bar like Virginia which has only 14,000 attorneys at this time.

And trying to regulate all of the potential misconduct problems that could arise.

Indeed, most of the states now have great backlogs in their disciplinary proceedings because they simply cannot keep up with the numbers.

But not only regulating misconduct problems, but also trying to enforce, for instance, mandatory continuing legal education requirements on a national scale.

Unidentified Justice: Well, I think that all makes good sense, but I would suppose that is directed at the distinction between reciprocity states and nonreciprocity states, just as in the same way that you might say we'll only take lawyers whose names begin with A through M.

Because that would serve the same purpose.

Mr. Lucyk: Justice, it certainly may serve the same purpose, but we submit here that Virginia's rule does achieve a number of very laudable purposes.

It does open the doors to reciprocity for and grant a right of travel to non-resident attorneys, so they may come into the state and engage in the practice of law.

At the same time, it still ensures a guarantee of competence and commitment from those attorneys.

So we submit that the Virginia rule does achieve a balance, a good balance, from the complete exclusion that was presented, for instance, in the Piper case, and from the unregulated, uncontrollable bar which might exist if there were no limitations on the authority of a state to impose some conditions on admission.

If there are no further questions, I'd like to reserve a few minutes for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Lucyk.

We will hear now from you, Mr. Hitchcock.

ORAL ARGUMENT OF CORNISH F. HITCHCOCK, ESQ. ON BEHALF OF APPELLEE

Mr. Hitchcock: Thank you, Mr. Chief Justice, and it may it please the Court:

There are two ways that a lawyer may be admitted to the Virginia Bar.

The first method is to take and pass the bar examination which is administered twice a year and which is available to all applicants who meet certain educational and character requirements.

The second method is the one at issue here and it allows lawyers to be admitted without taking the bar examination if they meet three requirements: first, they have been licensed for a least five years by a state which extends the same opportunity to Virginia lawyers; second, they are willing to comply with the full-time practice requirement; and, third, they are permanent residents of Virginia.

I should add that these are ongoing requirements, that one may be liable to expulsion from the Virginia Bar if a motion applicant moves out of the state or ceases to practice there on a full-time basis.

The residency requirement that is the focus of today's case is justified on two grounds: first, that it assures a lawyer's commitment to the state; and, second, that it helps to assure compliance with the full-time practice rule.

If I may, at this point, I'd like to respond to a point Mr. Lucyk made in response to Justice O'Connor's question about after hours availability.

This is the first time we have heard the argument that lawyers must be available after 5 o'clock or that that's one of the purposes of why the rule is in effect.

I think it's unlike the cases involving police officers or fire officers who are expected by municipality to be available after hours.

To the extent that Virginia did want to impose such a requirement, however, Ms. Friedman is willing to honor any commitment that Virginia imposes upon its own citizens.

That's really what I think is the core issue here.

She is willing to do whatever Virginia asks its own citizens to do in order to be admitted on motion.

She is complying with the full-time practice rule.

She is willing to pay Virginia Bar dues.

She is willing to take the continuing legal education requirements that Virginia imposes upon bar members, regardless of whether they are admitted on motion or by examination.

She is willing to do pro bono volunteer work.

Despite all of these commitments, her application was denied solely because of the fact that when she leaves the parking lot at night she goes home to Maryland.

Before discussing the privileges and immunities clause legal issues, I'd like to make a comment on the facts here which might help put the issue in perspective and show how unconnected residence is with the goals that the state is advancing.

Ms. Friedman began work with her current employer in Virginia in January of 1986.

At that time, she was living in Virginia and qualified for admission on motion under Rule 1(a)(1).

The problem in her situation is that the next month she got married and moved to her husband's home in Maryland.

Suppose instead of getting married then, she had waited a year, had been admitted on motion.

If at the time she got married a year later, she wanted to move into her husband's home in Maryland, she had to chose between facing the possibility of some expulsion or disciplinary action under Rule 1(a)(3) or else sitting down and taking the full Virginia Bar examination.

While the situation may not be universal, I suggest it illustrates one way in which this rule does not advance the goals that the Commonwealth suggests.

Unidentified Justice: Is that such a terrific hardship to sit down and take the Virginia Bar?

I mean that's really what this all comes down to, that she just doesn't want to take the Virginia Bar examination.

Mr. Hitchcock: It is, Your Honor, particularly vis-a-vis equally qualified applicants in the same situation she is who are making the same commitment.

Let me, since you bring it up, illustrate that it does impose a hardship.

First of all, a lawyer who has to take the examination must wait up to six or seven months in order for the examination to be administered.

They then must wait an additional three--

Unidentified Justice: That is true of everybody getting out of law school.

They have to wait for awhile for the exam and no one gets it instantly.

Mr. Hitchcock: --Yes, Mr. Chief Justice, but here again we are dealing with experienced lawyers who the state is willing to say we will excuse you from this waiting time, from this obligation, if you live in Virginia.

As a result of that, it puts her in a slightly different position.

Unidentified Justice: She just couldn't work at her job for six or seven months.

Mr. Hitchcock: That is true, too.

The other thing here is that this rule offers a special opportunity for experienced lawyers, people who are out practicing, holding down a full-time job, holding a full-time practice, who have to take time away from that practice in order to study for and prepare for the bar examination.

As we've pointed out, that is a fairly substantial burden on a practicing lawyer.

The review course which a lawyer would have to take, the most popular one meets for twenty hours a week for six weeks before the bar examination.

A lawyer is likely to have to take that, plus spend additional time preparing.

Moreover, the lawyer who has to go through--

Unidentified Justice: But there is no doubt, I take it, that Virginia could require that of everyone.

Mr. Hitchcock: --That is correct.

They could require the examination of everyone.

But what Virginia has said: we don't believe that people should, that experienced lawyers should be obliged to take this test.

They don't have to prove themselves if they are willing to live in Virginia.

Having made that decision and having an applicant such as Ms. Friedman who has made exactly the same commitments and is presumably as competent as an equally qualified resident, the only issue is whether the fact she is willing to live in Maryland at night means that she must be tested to the same extent as someone just out of law school or somebody who already lives in the state.

Unidentified Justice: Well, Mr. Hitchcock, at least one state, rather one court, the Seventh Circuit, I believe, has held in a very similar situation that the right to be admitted to practice on motion just isn't a fundamental privilege, protected under the privileges and immunities clause.

Isn't that right?

Mr. Hitchcock: Let me address that.

The court, before it got to that point--

Unidentified Justice: In the Sestric case.

Mr. Hitchcock: --The Sestric case, yes.

The Sestric case was distinguishable first of all because it held that the clause doesn't apply because the universe of people being advantaged are new residents of Illinois and the people being discriminated against were old Illinois residents as well as non-residents.

Finding no symmetry between residents versus non-residents, the court said that the clause does not apply for that reason.

That is not the situation here.

Unidentified Justice: I think the court also had the view that admission on motion just isn't a fundamental privilege.

Mr. Hitchcock: That was an additional point which they discussed.

But, here, the distinction that was made here, and I think in Sestric as well, is that as long as a state gives you some opportunity to get a license, that it is free to impose preferential or discriminatory conditions even if, as in this case, they would be run afoul of the Constitution.

It's like an unconstitutional condition that the court has recognized in other cases, that even if a state has no obligation to give a certain gratuitous benefit to people it still must grant that benefit in a manner that's consistent with the Constitution.

Unidentified Justice: Well, if admission on motion is not a fundamental privilege, then there's nothing unconstitutional about imposing that condition.

Mr. Hitchcock: If it were, but I think that you have to focus on what Piper held.

Piper said, consistent with a number of earlier cases, that it is the opportunity to practice law that is at issue.

More specifically, in Toomer, in Austin, the court said the inquiry is whether out-of-state residents are being treated on terms of substantial equality with non-residents.

Have state residents demanded for themselves a benefit which is not being extended to equally qualified non-residents.

That's precisely the situation here.

Virginia residents have the opportunity to be admitted in a very efficient and inexpensive manner, indeed, almost a risk-free manner and that option is simply denied to out-of-state residents.

I think the problem with the argument that's advanced by the state and in Sestric is the assumption that the clause only applies if lawyers are totally excluded from the bar, if out-of-staters are totally excluded from a certain privilege.

This Court has never held that.

I think this case is closest to the cases involving commercial licenses where a state has said we will let out-of-staters in but we are simply going to charge them a higher licensing fee.

Now, there may be no fundamental right to pursue a certain occupation.

In the fishermen cases, for example, the state may say that we are going to put such and such type of fish are off limits for environmental purposes and allow no one the opportunity.

But once they make a decision to allow someone to pursue their professional career in the state, they must make it available on terms of substantial equality to residents as well as non-residents.

To follow up on Justice Scalia's earlier question, there just is not that term of substantial equality here, to make lawyers, as a practical matter, take time away from their existing practice to review courses they may not have examined since they were in law school and probably are not going to be practicing in their practice in Virginia, to have to wait for ten or eleven months to be admitted through the exam process when lawyers can be admitted on four months by examination, to have basically a risk-free way of getting into the bar as opposed to the risk that any lawyer faces upon taking examination.

Indeed, I would suggest, for experienced lawyers that risk may be particularly greater.

If a lawyer has specialized in the tax field, there are a lot of subjects that that lawyer may not have addressed since he or she was in law school and must bone up on them and risk the possibility of failure even though that lawyer is not going to deal with them.

Finally, there's one additional aspect where there is a penalty here.

If Ms. Friedman had stayed in Virginia, she could have been admitted to the bar on motion by paying a fee of $225.00.

Because she moved out of the state, she is required to pay $100.00 extra in order to take the bar examination.

It's an example of the preferential treatment.

Unidentified Justice: Can't a state make an added fee there for non-residents because of the added difficulties of investigating their background?

Mr. Hitchcock: It may, Mr. Chief Justice.

Indeed, in this case, for exam applicants there is a differential that is directly related to that cost.

If a lawyer seeking admission on examination wants to take the examination, he or she is interviewed by a local bar committee in his or her home county.

The cost, I believe, is $50.00 for everything else... I'm sorry, $150.00.

But if that lawyer lives out of the state and wants to take the examination, there is an extra charge of $175.00 solely for the character reference analysis.

That sort of distinction, which is directly tied to the extra burdens of investigating character of people who live out of state, I don't think we would challenge because of that direct tie.

It's closely tailored.

There is a substantial relationship under the criteria this Court has enunciated for that kind of criteria.

But that's not this case.

You take a person who is equally qualified and the fact that she gets married and moves to her husband's home in Maryland means she has to pay more--

Unidentified Justice: Did you challenge that explicitly in the Fourth Circuit?

Did they cover that in their opinion?

Mr. Hitchcock: --No.

We did not challenge the differing fee.

The point I'm making, to get back to Justice Scalia's first question, it's part of the burden that is being placed on lawyers who are as qualified as Virginia residents but who have to take the examination.

Justice Scalia asked isn't this about somebody who doesn't want to take the examination.

My answer is yes, because there are important practical consequences if one must take the examination as opposed to being able to be admitted on motion.

And they are: the greater risk, the higher cost, the review course, and the additional time that has to be spent.

Those are practical matters that concern experienced lawyers.

Unidentified Justice: Mr. Hitchcock, I tend to agree with your point that this a pretty blunt way and inefficient way of achieving what Virginia asserts it has in mind, that is some assurance of full-time interest.

But I would think it would normally, that fit, would normally be enough in a run-of-the-mind equal protection case, to meet a rationality test.

It's pretty blunt, but close enough for government work as we say.

What you're arguing, it seems to me, is that once you identify a fundamental right that's subject to the privilege and immunity clause, every aspect that has anything to do with that right suddenly gets elevated to a point where there can't be any loose fit at all.

You're really requiring very refined judgements by the legislature, by the Supreme Court of Virginia here.

Why should we go along with that?

Why shouldn't we just say, if you're excluded that's bad.

But here, you're not excluded.

What we're arguing about is whether you have to take the bar exam.

That's not a privilege or immunity.

Mr. Hitchcock: The answer, Justice Scalia, is that this Court has required a heightened form of scrutiny whenever there is preferential treatment for out-of-staters vis-a-vis equally qualified in-staters.

It's part of the importance that the privileges and immunities clause plays on the Constitutional framework, of not allowing equally qualified people from another state to be denied a certain benefit.

The standard, I guess, in the Camden case, as well as in the Court's decision in Piper, is not... it says that there must be a substantial reason for the discrimination or the preference in question and there must be a close fit.

It has employed heightened scrutiny, more than is required in the rational basis cases, given the importance of the clause in not erecting barriers between people who are trying to pursue professional pursuits in the different states.

So, my answer is the Court has required the opportunities, but they do provide opportunities if the consideration is closely tailored.

As I indicated in response to the Chief Justice's question, if somebody wants to take the examination but lives out of the state and cannot be examined by a local character committee, he may be able to charge them a little bit more money to have the National Conference of Bar Examiners do the work.

But that's very different in kind from a rule that says we have two equally qualified lawyers, both working side by side in the same office, both making the same commitment, both willing to represent Virginia lawyers, and one of them can be admitted because he or she lives in Virginia... on motion because he or she lives in Virginia... and the other has to take the bar examination because she crosses the Theodore Roosevelt Bridge on her way home at night is not a substantial fit.

There's not a substantial reason for making a distinction on that basis.

There are other more closely--

Unidentified Justice: Well, is this much different than would be a Virginia rule that said if you graduate from a law school in Virginia you need not take the bar?

But if you graduate from any other law school you must?

Mr. Hitchcock: --I think if the rule said that Virginia lawyers may be admitted without taking examination--

Unidentified Justice: No.

Graduates from Virginia law schools.

Mr. Hitchcock: --provided that admission to a Virginia law school was available to out-of-state residents, that out-of-staters could try to get in to the Virginia Bar through this method, no, I don't see a problem with that.

Unidentified Justice: Well, if they say if you graduate from Virginia law schools you need not take the bar, but if you graduate from any other law school in the country you must take the bar?

Mr. Hitchcock: I don't think there would be a problem with that.

And the reason is that if you're creating a preferential way of obtaining a license, so long as there's an option for lawyers who want to avoid the examination of taking advantage of that, i.e., by attending the Virginia law school, then I wouldn't see the problem because you have the open access.

The critical point is that one must attend the Virginia law school, and lawyers who say I want to practice in Virginia, without having to take an examination, have an opportunity to pursue that option regardless of their state of citizenship or where they come from.

Unidentified Justice: So, the bar exam isn't much of a fundamental right, having to take the bar exam?

Mr. Hitchcock: The fundamental right is the opportunity to pursue one's professional pursuits free from restrictions that discriminate solely on the basis of state citizenship and which are not substantially related to a state's goal.

That's really what we're talking about here.

The question is not do you have some means of pursuing your profession?

The Court did not ask that question in the fishermen cases or even in Piper.

The argument in Piper was: sure, you can practice in New Hampshire.

You can appear pro hac vice and come in on individual cases.

We're not keeping you out.

There's a way you can come in and practice law in our state, but we're just not going to let you obtain a particular license.

The fundamental right, going back to Courtfield v. Coryell, and in every subsequent case through Piper, has focused on can somebody pursue their career in a manner, with the same, on terms of substantial equality with in-state residents.

That is simply not being provided here.

The only reason why she's being excluded is her citizenship in another state.

Virginia has made a decision that its own citizens don't have to take the bar examination if they meet these criteria.

Having satisfied the same criteria, the only question is may she be excluded.

If I may, I'd like to turn now to the specific rationales that the Appellants have raised in defense of this particular rule.

The first rationale is that it promotes a lawyer's commitment to Virginia.

My initial comment is I'm not really sure what that means.

It seems to be a reformulation of the arguments which the Court rejected in Piper about how residence assures one's competence and commitment and ethical behavior and willingness to do volunteer work and the like.

I think there was a very straightforward answer which the Court gave in Piper that I think answers this concern.

The Court, as we read the case, took a very pragmatic approach.

It said: lawyers are not going to seek admission to a bar unless they anticipate a considerable practice there, unless they are willing to take on the burden of paying bar dues and continuing legal education requirements, and any pro bono requirements, anything else that the state may seek to impose.

There is an ongoing investment, a personal investment, of time and money that lawyers make if they seek admission to a bar, regardless of whether they are admitted on examination or admitted on motion.

Suppose, for example, an experienced lawyer is asked by a client can you represent me in Virginia or in Maryland.

If it's a one-time offer, the lawyer may have no need to be admitted and may not seek to be admitted as a member of the bar.

But if the client says can you represent me on a regular basis.

Can you come in and handle all the litigation I've got or all this kind of work that I have in that state, the lawyer may say it's worth my while to seek admission to that bar, with all the benefits as well as the responsibilities, that that entails.

So that is why, we would suggest, that the arguments about commitment which the Court rejected in Piper apply with equal force in the context of motion admissions, regardless of whether there's a lesser burden in terms of being able to be admitted on motion without taking the examination.

Lawyers don't seek admission to state bars unless they anticipate that they are going to use the opportunity to practice there and unless they are willing to shoulder the burdens.

I think that's particularly... I just added a footnote to that... true, I think, in states where lawyers seek to practice on a multi-state basis.

Lawyers are not going to want a license to practice in two or three states and expect to practice there unless they are willing to honor whatever commitments are entailed with multiple bar membership and multiple practice.

Even if the Court were not willing to stop there and say that these reasons... the argument is not sufficiently substantial... there is an additional factor here that is unique to Virginia that I think should lay to rest any doubts about the validity or invalidity of the residence requirement.

I'm speaking specifically about the full-time practice rule.

If Virginia may validly seek to say that all lawyers admitted on motion must commit themselves to full-time practice in the state, then the residency requirement becomes, as the Fourth Circuit says, redundant.

Unidentified Justice: Mr. Hitchcock, what do you understand is meant by the full-time practice requirement?

Mr. Hitchcock: The only interpretation that the Supreme Court of Virginia has provided is in the Titus case, which we cite in Footnote 2 of our brief, which is that a lawyer must have an office in Virginia and must practice there on a, quote, regular, unquote, basis.

The court... that's a 1972 or 1973 decision... has not construed it since then.

Regular, they apparently equate with full-time but I'm not sure about what would happen if lawyers did other things, even if they were living in Virginia, if they wanted to do things other than practice law forty hours a week, thirty-five hours a week, or whatever it may be.

The court has not provided any more specific guidance and there are no disciplinary opinions or other rulings that provide clearer guidance on this point.

Unidentified Justice: Mr. Hitchcock, do you think the full-time practice requirement is Constitutional?

Mr. Hitchcock: Your Honor, in cander we argued in Goldfarb v. Supreme Court of Virginia that the full-time practice requirement was invalid under the commerce clause.

Unidentified Justice: If that's an invalid requirement, how can it be a substitute for protection for what the state seeks to protect here?

Mr. Hitchcock: Well, as I indicated in the earlier point, I think the Court could stop just by saying... by following Piper in saying that one's commitment to Virginia is sufficiently assured without regard to whether or not there's a full-time practice requirement.

Unidentified Justice: You mean by the mere fact that your client applied for admission?

That's enough?

Mr. Hitchcock: The fact that she applied for admission and the fact that she was willing to do anything that Virginia seeks to ask her short of full-time practice would be enough here.

Unidentified Justice: Because she's represented she's willing to do it.

But how can they enforce those representations?

Mr. Hitchcock: I'm sorry, which representations?

Unidentified Justice: Well, you say she will practice full-time.

Supposing her client opened a branch office over in Annapolis or someplace, with a subsidiary, and asked her to devote part of her time to supervising the affairs of that corporation?

She couldn't do it.

Mr. Hitchcock: She couldn't do it, but neither could a lawyer who happened to live in Arlington.

If the Virginia firm--

Unidentified Justice: Unless both requirements are invalid.

Mr. Hitchcock: --Unless both requirements... well, for the--

Unidentified Justice: And both seem somewhat restrictive.

Mr. Hitchcock: --They are.

I mean, the full-time practice requirement does have some of the same problems of the residence requirement.

What it does is it allows a lawyer into the state only if they agree to give up all interstate or multi-state practice.

I would add, although it's not essential to resolution of this case, multi-state practice is the sort of thing which I think states should be encouraging.

As Chesterfield Smith, the former American Bar Association president, noted in an article which the Court cited with approval in Piper, as lawyers get older and more experienced the demand for their services across state lines increases and restrictions which limit their ability to practice really disserve the public and disserve the clients who may need and wish to retain their services.

Unidentified Justice: Yes, but as you develop that argument what do you say about the state's position that really what's going to happen here is that the states are all going to start requiring bar exams and that will make the problem even more acute?

Mr. Hitchcock: Well, my answer is that... two answers to that.

First of all, there's no case of which I am aware involving discriminatory or preferential treatments where any court has tried to predict what's going to happen.

When a preferential law is struck down, a state has two choices: they can make the benefit available to everyone or they can make it available to no one.

This Court has never held, certainly, that a reviewing court or reviewing judge should say: what is the state likely to do?

Does that result constitute sound public policy in my mind and, therefore, I'm going to uphold the Constitutionality or strike down the Constitutionality based on that prediction.

Unidentified Justice: But it's very rare that the whole reason for an individual's asking us to strike it down is the same reason that would be frustrated by one of the courses that the state might take.

That's what seems, to me, ironic about this case.

The very reason you're urging this upon us is to enable freer commerce between the states in legal services.

And it's quite possible that the result you are going to achieve, if we hold the way you want, is to reduce that freedom rather than increase it.

Mr. Hitchcock: It may be a possibility but that's a risk involving any kind of preferential law.

There are also, I think, corrective mechanisms.

I mean, the people who are injured if this provision were to be withdrawn are not only lawyers from out of the states, but Virginia law firms who may want to make it easier to recruit lawyers, and may be willing to say to the Virginia Supreme Court or the legislature which created this option in the first place: we'd like the opportunity, it's really difficult because everyone has to take the bar exam, would you consider some kind of waiver of the exam for people, without regard to the fact that they may chose to live outside the state.

There are other corrective mechanisms but, again, regardless of the ironies, if an institution decides to close down or no longer make certain benefits available because it has to admit other people, that's not an argument that it's Constitutional or valid or should be upheld.

It's the Court's function, I would respectfully submit, to apply the law here and to let the consequences be decided based upon what the Court's ruling is.

And here, even if the Court does, if the full-time practice rule remains in effect... although as I indicated in response to Justice Stevens, there are problems with that... that should be enough to satisfy the goals that the state seeks to achieve with respect to assuring a compliance, competence, whatever else.

I think that specific argument is undercut by the fact that Virginia has no enforcement mechanism and the notion that without the residence requirement lawyers would be likely to set up sham residences is equally likely as the prospect that they will set up sham offices, which they're likely to do.

It might be said, ironically enough, if there are ironies in this case, the people who this rule keeps out now are those lawyers who cannot in good conscience say: I'm willing to practice full-time, I live in Virginia.

The lawyers who are allowed in under the rule may be those who don't honor their professional commitments to the same as someone like Ms. Friedman.

Those lawyers may be admitted to the bar.

They may be practicing in other states or living in other states.

The fact that there's no enforcement mechanism may be keeping out the people who can serve Virginia clients well, allowing in those who are not doing the sort of things Virginia seeks of people who want to be admitted on motion.

In the remaining time, I'd like to take a moment to talk about the other arguments.

If the Court should decide that the privileges and immunities clause doesn't apply here, as some of the questions have indicated, we still submit that the judgement should be invalidated under the equal protection clause, that there is no rational basis for holding that where a lawyer lives promotes compliance with the rule or promotes one's commitment to the jurisdiction.

In recent terms, the Court has struck down under that rational basis test some preferential tax laws which sought to give preferences to state residents vis-a-vis non-residents: the Court found that that effort to give the hometeam an advantage, as it said in one case, was not rationally connected to the goals which were advanced.

Unidentified Justice: What case are you referring to, Mr. Hitchcock?

Mr. Hitchcock: Metropolitan Life Insurance Company v. Ward, the Alabama tax insurance--

Unidentified Justice: Do you regard that as being good law today?

Mr. Hitchcock: --I'm not aware of any subsequent precedent that might cast doubt on it.

Unidentified Justice: I would think that Northeast Bank case cast considerable doubt on it.

Mr. Hitchcock: Well, in the Northeast Bank Corp, I think that was... Northeast Bank Corp. came before that, I think, by one term, but there is a difference there, I think, because you had the Congressional seal of approval upon the legislation in question there.

It was not simply an effort by a state to regulate without Congress having looked at the issue.

I think that would be a distinction, vis-a-vis this here.

Cases such as Williams v. Vermont, that was a case in which the state of Vermont gave an exception from paying a tax to Vermont residents who bought a car in another state, paid tax there and then came back to Vermont.

That was an exemption.

It's a benefit... something given to Vermont residents that was not given to citizens of other states who bought a car in, say, New York, paid the tax there, came into Vermont and had to pay the tax again.

The Court there rejected the justifications that were offered about what amounted to a higher burden on state residents, Vermont residents, vis-a-vis out-of-state residents.

We've also suggested that the provision would be invalid under the commerce clause for some of the reasons that I suggested earlier in colloquy with Justice Stevens.

And I see that my time has expired.

If the Court has no further questions, we would ask that the judgement of the Fourth Circuit be affirmed.

Chief Justice William H. Rehnquist: Thank you, Mr. Hitchcock.

Mr. Lucyk, you have four minutes remaining.

ORAL ARGUMENT BY GREGORY E. LUCYK, ESQ. ON BEHALF OF APPELLANTS -REBUTTAL

Mr. Lucyk: Thank you, Mr. Chief Justice.

If it please the Court:

I'd first like to respond to something that Justice White said during my... Appellee's argument here, and that is that you expressed concern that if the Appellee were required to take the bar examination she wouldn't be able to work for six or seven months.

That is simply not true.

The bar examination is only a two-day examination and the bar review course that is offered for that occurs in the evening hours.

In fact, the Appellee could apply for the bar examination in May, take the bar review course, take the exam at the end of July, and she'd admitted to the Virginia Bar by October.

Unidentified Justice: Well, a lot depends on when she decides to make this decision, isn't it?

The bar exam is given twice a year.

Mr. Lucyk: That's correct.

It's given in February and July.

In her case, she sought admission to the bar, she wrote her letter in early summer, and she was still within the time frame that would have allowed her to--

Unidentified Justice: She was working in Virginia.

She had a legal job in Virginia, and until she takes the bar and passes it, she is not supposed to act like a lawyer in Virginia.

Whatever the time is, it may be a day, it may be two weeks, but while she's waiting to pass the bar she can work as a lawyer.

Mr. Lucyk: --I think, you know, that's an interesting question, Justice White.

Unidentified Justice: Well, do you think she could open a law office and hold--

Mr. Lucyk: I think she certainly could advise her clients on federal securities law, which was the bulk of her work.

Unidentified Justice: --Well, could she open an office in Virginia until she passes the bar?

She couldn't, of course.

Mr. Lucyk: She could be employed by her corporation as she was.

Unidentified Justice: I just asked you, could she open an office and practice law?

Mr. Lucyk: She could not hang out her shingle as a sole practitioner.

No, she could not.

Unidentified Justice: And she can't act like a lawyer working for this organization, either.

Mr. Lucyk: But, Justice, neither can the reciprocity admit you until they get that license to practice law.

In reality, the time it takes is about the same.

If you apply for the bar exam in May and are admitted in October, that four to five month period is the same period of time that it takes for someone to apply for reciprocity, to have the papers processed by the National Conference of Bar Examiners, and to do the other things that have to be done.

The average period of time is about four months.

So, we're not talking about a difference in time commitment.

There's no question, and we're not going to deny, that the bar examination imposes a burden.

We believe that our restricted license by reciprocity also imposes a burden on applicants.

It offers a choice of burden.

The choice is: the burden imposed, or the initial burden, of taking the bar examination establishes the assurance of commitment and competence and frees that lawyer from any other long term burdens.

There's no requirement to maintain a full-time practice or even an office in Virginia.

And, certainly, there's no requirement of residence in Virginia.

On the other hand, the reciprocity rule imposes a long term burden.

Yes, it does alleviate the initial requirement of the examination but for as long as that person intends to practice law in Virginia, they have the burden of maintaining that full-time practice, complying with that rule of residing in the state, and making themselves available on a full-time basis to serve Virginia clients.

The facts in this case are atypical and for that reason we submit that the principle here is much broader.

The principles at stake are much broader than the facts of this case.

Yes, Ms. Friedman, the Appellee does live close to the border.

But the majority of reciprocity applicants aren't going to live that close.

They're going to live many more miles away and further distant locations.

So, the particular facts about her closeness or nextness to Virginia are not going to apply in the majority of the cases.

Unidentified Justice: Well, is that right if they practice full-time in Virginia?

Don't you have to presume they live pretty close?

Mr. Lucyk: Well, I don't think so.

I think if we must rely on the promise then we've got to rely on that same promise from someone who lives in Laurel or near Baltimore, that they, in fact, intend to commute every day to Virginia and when they go home in the evening they are not going to establish... you know, through social or community contacts... an outside practice.

If you require us to make that presumption in this case, where on its face, yes, it seems that that presumption may be legitimate, then we've got to make it in every case.

And that's my point, that the rule doesn't apply just to this unique factual situation.

It applies to all of the conceivable situations.

Chief Justice William H. Rehnquist: Mr. Lucyk, your time is expired.

The case is submitted.

Print this transcript Transcript: 

ORAL ARGUMENT OF GREGORY E. LUCYK, ESQ. ON BEHALF OF APPELLANTS

Chief Justice William H. Rehnquist: We will hear argument first this morning on Number 87-399, The Supreme Court of Virginia v. Myrna E. Friedman.

Mr. Lucyk, you may proceed whenever you are ready.

Mr. Lucyk: Mr. Chief Justice, and may it please the Court:

This is a very important case with a very ironic twist.

It's ironic because this case involves an attack under interstate privileges and immunities grounds against the Virginia Supreme Court rule which is intended to promote the interstate mobility of experienced attorneys by providing them with a limited form of bar admission without examination.

Presently Virginia is among the minority of states with what you might call liberal bar admission policies.

Twenty-eight states, in fact, limit interstate mobility of lawyers.

They provide no form of bar admission without examination.

This is a vulcanization of the legal profession, and this is a vulcanization which has accelerated in recent years and, in fact, eight states have dropped reciprocity admission since 1985 alone.

This case is very important because it brings the Court to a crossroads.

If this attack on reciprocity admission is sustained, the decision could hasten the trend of the states toward exclusionary bar admission policies and, in fact, thwart the principles of interstate harmony underlying the privileges and immunities clause.

Unidentified Justice: Would that be bad?

Mr. Lucyk: Your Honor, the decision would, in fact, defeat the purposes of the Constitutional provision.

It would be bad.

On the other hand, the decision upholding Virginia's rule could reverse the current trend and encourage the states to restore interstate mobility afforded by reciprocity admission.

It is helpful first to focus on what is and what is not before the Court.

This is not a rerun of Supreme Court of New Hampshire v. Piper.

Virginia does not restrict admission to the bar only to Virginia residents and, in fact, the record in this case establishes that 13 percent of Virginia's 14,000 bar members are nonresidents admitted by examination.

Nor is this a challenge of the right of the states to require an applicant to prove knowledge and competence in local law and to demonstrate a commitment to providing service in the jurisdiction before they may be admitted to the bar.

Finally, the Court need not address the right of the states, as twenty-eight states do, to require all applicants to take a bar examination or stand for an examination to demonstrate this commitment and competence in local law.

What is here is a very narrow issue and it is the right of Virginia to provide an exception to the general admission requirement of examination.

Unidentified Justice: Mr. Lucyk, now what do you say is the main purpose that Virginia has in making the residence requirement?

There is, as I understand it, already in Virginia a requirement of full-time practice in Virginia to be admitted on motion.

Mr. Lucyk: That is correct, Justice O'Connor.

Unidentified Justice: So what is there above and beyond that that is Virginia's interest in the residence requirement?

Mr. Lucyk: Virginia's interest in requiring residence is to ensure that this is, in fact, a restricted license to practice law.

Admission by examination is a form of general admission.

It entails no long-term restrictions, whereas Virginia intends by its reciprocity program to encourage lawyers, experienced lawyers, to come into the state and provide their full-time availability to the service of Virginia clients.

Unidentified Justice: The fact that they agree to work full-time in Virginia is not enough to meet that?

Mr. Lucyk: Justice, the full-time practice requirement serves to provide 9 to 5 availability, but it does not promote availability of that attorney to Virginia residents and Virginia clients beyond those normal office hours.

That is the function of residence.

Unidentified Justice: Is there any state bar requirement that a lawyer give a certain amount of pro bono service or have an office open beyond 5 o'clock, or something like that?

Mr. Lucyk: No, Justice O'Connor.

The Virginia Supreme Court presumes that applicants admitted by examination have demonstrated that commitment to the practice of law in the state, that they will provide without any requirement that commitment to providing pro bono services and making their services available.

We do not believe we can presume that same commitment from someone who is merely paying the annual dues and making an annual promise.

Unidentified Justice: And practicing full-time?

Mr. Lucyk: And practicing full-time in the state.

That is correct.

We are asking our practitioners admitted by reciprocity to provide, to demonstrate, a greater commitment, and that is to be available during office hours, during the evenings, during the weekends, to provide pro bono services and to make services available to Virginia clients.

That is the purpose that is provided by residence which full-time practice alone--

Unidentified Justice: What does full-time practice in Virginia mean?

Just your availability that you have just described?

May he have a case in the federal court in the District of Columbia?

Mr. Lucyk: --Yes, Justice.

It is not a prohibition.

It does not completely prohibit.

Unidentified Justice: Well he is not practicing full-time in Virginia if he spends a week trying a case in San Francisco.

Mr. Lucyk: No, Your Honor, but that doesn't defeat the purposes of the full-time practice rule which in and of itself is intended to ensure that an attorney has sufficient contacts with Virginia law on a consistent basis.

Unidentified Justice: That may be the purpose, but is it the language of the rule?

Isn't the rule rather vague in its structure?

Mr. Lucyk: The rule is vague, I would agree with you, in its language but it has been interpreted by the Virginia Supreme Court in In Re Brown in 1972 and in In Re Titus.

The Court defines its rule to mean that the applicant must open an office for the practice of law in Virginia and engage regularly in the practice of law from that office.

Unidentified Justice: You certainly have many lawyers practicing law who have lived all their life in Virginia and yet cannot be admitted to the Virginia bar.

Is that not true?

Mr. Lucyk: I don't know if that is true or not, Your Honor.

Unidentified Justice: You must know some.

I do.

Mr. Lucyk: I do know of one.

I do know of one and that was a gentleman who sued the Virginia Supreme Court over the full-time practice requirement in 1985.

I assume there are others, but I don't think the number is so great that it is substantial or at least as a factor in this case.

Unidentified Justice: How does the Supreme Court of Virginia police the full-time practice requirement.

Is it an easy requirement to police?

Mr. Lucyk: It is not, Mr. Chief Justice.

We rely upon, essentially, reports from other members of the bar or someone advising or informing the bar disciplinary body that the rule is not being complied with.

It is not a self enforcing requirement and, therefore, we rely on the additional exposure to the state occasioned by residents to allow or to provide for additional scrutiny of the attorney.

Unidentified Justice: For what period of time must the lawyer be a full-time practitioner in Virginia?

Mr. Lucyk: So long as the person intends to hold on to that restricted license to practice by reciprocity.

It is a continuing requirement.

Unidentified Justice: Does the license itself contain the restriction?

Mr. Lucyk: No.

The licenses, the general license that is issued--

Unidentified Justice: Has any lawyer ever been disbarred for practicing elsewhere?

Mr. Lucyk: --To my knowledge, Your Honor, there has been one disciplinary case involving noncompliance with the full-time practice requirements.

There may have been others, but I am not--

Unidentified Justice: What happened in that case?

Mr. Lucyk: --I do not know the specific facts of that case.

Unidentified Justice: Were there other charges as well as failing to practice--

Mr. Lucyk: I believe there may have been.

Unidentified Justice: --So, as far as you know, nobody has ever been disbarred simply because they practiced somewhere else?

Mr. Lucyk: No, Your Honor, and, frankly, there haven't been that many attorneys who have been admitted by this rule up to that time.

Unidentified Justice: What about the residence requirement?

How long... say, the person lives in a hotel over in Arlington and at the time of making application gets the certificate and then moves to Maryland.

What do you do about that?

Mr. Lucyk: That individual would be out of compliance with the rule and would be subject to revocation.

Unidentified Justice: Has anybody ever had their license revoked for moving from Virginia to Maryland?

Mr. Lucyk: I'm not aware if there have been, Your Honor, and, again, the numbers in the past haven't been that great that compliance has posed great problems.

Unidentified Justice: Why is that?

That surprises me.

You may have noticed there are a lot of lawyers in Washington, D.C., and a fair number of them live in Virginia.

And I would assume that practicing in Washington as counsel for a government agency, for example, or on the staff of a government agency would not constitute the regular practice of law in Virginia.

There must be a lot of lawyers.

Mr. Lucyk: It would not, Justice Scalia.

And there are quite a few lawyers who reside in the area and who practice up here who take the Virginia Bar examination.

There are a significant number, in fact.

Nearly 2,000 of our bar members are nonresidents admitted by examination, so it's certainly a reasonable and adequate alternative which is available.

Unidentified Justice: Now, once they are admitted by examination they do not have to engage in the regular practice of law in Virginia?

Mr. Lucyk: That's correct.

Once they have passed the examination, they've demonstrated their competence in local law and they have certainly established, or shown a commitment, to a substantial practice in the jurisdiction.

Unidentified Justice: But then they aren't, as you say, available twenty-four hours a day.

Not necessarily.

Mr. Lucyk: No, Justice White.

It's a different kind of license.

Admission by examination--

Unidentified Justice: And after examination, they can move out of the state, too.

Mr. Lucyk: --Yes, sir, Justice.

We can presume, and this Court has made clear: you can presume that in real life no one is going to take the bar exam unless they intend to make a substantial commitment to practice in the state.

Unidentified Justice: Well, they intend to practice in Virginia.

The only thing is they change their mind after a couple of years and join a firm in another state.

Mr. Lucyk: And the Virginia Supreme Court doesn't object to that and it has no problem with that.

Someone who has taken the examination has shown that commitment to Virginia.

Unidentified Justice: Let's assume two brothers are practicing law in a partnership in Chicago.

They decide to set up a partnership, move to Virginia with their business, and so they set up a partnership in Virginia.

And one of them lives in Virginia and the other one lives across the line in Maryland.

I take it one can be admitted on motion and the other cannot.

Mr. Lucyk: That's correct, Justice.

Unidentified Justice: I'm not sure that makes a whole lot of sense.

Mr. Lucyk: Justice, it certainly makes sense when you view the purposes of the rule as a whole, and that is to encourage lawyers to move and provide services not just in the border areas of Virginia but all over the state, in the southern and western mountains, in the Piedmont region, on the Eastern Shore.

The purpose of the rule, and the rule was adopted, to make it easier for older practitioners to move into the state and to establish a practice, maybe those who have to move because of some change in their personal or professional commitments.

It also assists, for instance, the state and local government law offices or even Virginia's free legal services programs for low-income people who must recruit from a small pool of--

Unidentified Justice: Do you really think this law attracts lawyers to go out into back woods and practice?

Do you really think that?

Mr. Lucyk: --I think the law provides that purpose.

Unidentified Justice: Does it do it?

Does it attract them?

Because my next question is how many has it attracted so far?

Mr. Lucyk: Justice, I have no empirical evidence to show how many lawyers may have been attracted to particular areas of the state, but I do know that, for instance, our legal services program and farm bill will rely upon this rule to bring attorneys in and get them admitted so they can represent indigent people in that area.

You know, the rule does serve that beneficial purpose.

So, in effect, we view waiver of the examination as an incentive to give lawyers the opportunity to come into the state and devote their full time and make their availability to the practice of law and the service of Virginia clients.

In that sense, the rule, we submit, is a bridge which actually promotes interstate mobility.

It's a bridge across state lines and it is a bridge which is not provided by twenty-eight other states which require all practitioners to take the bar examination.

Unidentified Justice: Yes, but it still would perform that function if you knocked out the feature of the rule that they challenge.

Mr. Lucyk: Justice Stevens, I think the problem is that it would not perform that function to the extent the Virginia Supreme Court would like it to because, again, we are talking about an attorney's commitment to full-time availability.

And someone who leaves the state, who leaves the area, and goes to a distant location in another state is not going to be available to the same extent as someone who resides directly in the community and is available for a visit in the evening.

The other thing that the residence requirement does in terms of aiding in the enforcement, or at least compliance with full-time practice, is it ensures that the attorney's social contacts and community contacts aren't going to bring that attorney additional business.

Now, if our attorney who resides in Vienna, Virginia, you know, has social contacts, meets people on weekends and the evenings, people who ask legal questions and need services, and the attorney says, sure, come on into my office and we'll talk about it, that attorney is not facing the potential of developing a substantial out-of-state practice.

Whereas our attorney in Cheverly, Maryland, who is meeting with his or her social contacts in the evenings or on the weekends, who are Maryland residents, and these are persons who are saying, look, I've got this legal problem, come on in to my office, well, then we see an expanding or growing out-of-state practice which defeats the purpose of full-time practice.

Unidentified Justice: Well, I certainly want to congratulate Virginia on wanting to get more lawyers in this way.

It certainly is that most states seem to think they have too many, and you're describing this as really a device to bring in as many lawyers as possible.

I thought we were arguing about an exclusionary aspect of it, not an inclusionary aspect of it.

Mr. Lucyk: Well, Justice, I think our point here is that that you've got to look at the rule as a whole and what is it intended to do.

If you look at it at a narrow focus, and if you look at it from the eyes of someone who thinks there should be no restrictions in each state for admission to the bar, then it may appear to be exclusionary.

But if you look at it from the eye of a state supreme court that wants to make legal services available to its citizens, yet still provide some guarantee of competence and commitment among its attorneys, then it is an inclusionary rule.

It does.

It serves as an invitation for experienced attorneys to come into the state and begin servicing Virginia clients on a full-time basis.

So, it is, indeed, we would submit, an inclusive not an exclusive rule.

It is a bridge across state lines which applies only to foreign attorneys.

It does not apply to resident attorneys.

The rule is intended to apply and it's called foreign attorneys, to allow those foreign attorneys to migrate, settle and abide in Virginia and begin earning their living and assisting Virginia clients by engaging in the practice of law.

Unidentified Justice: If we agree with the Appellee in this case, what will be the consequence?

Will everybody have to take the exam or nobody will have to take the exam is what I'm talking about.

Mr. Lucyk: That would be up to the Virginia Supreme Court.

I do know the supreme court, if this requirement of residence is struck down, will re-examine its rule to determine whether it meets their expectations of assuring commitment and competence from untested practitioners.

And I think, I would submit, I'll speculate, and I'd be willing to bet all the money in my pocket on that the fact that if residence is struck that reciprocity in Virginia will be eliminated.

I think that we have to consider that it's not a ramification that may occur only in Virginia.

There's been amicus brief filed by four states in this case, and all of those four states joined in a brief that said residence is going to cut into our ability to ensure that our practitioners are committed to serving, to practice the law, in the state.

One of those states, Wyoming, has already abolished its reciprocity rule.

It did that in December.

Unidentified Justice: Four out fifty is not a very good recommendation to me.

Mr. Lucyk: Well, Justice, there are already twenty-eight states which do not provide admission without examination, so we are looking at twenty-two states.

Of those twenty-two, seven of them require residence.

Unidentified Justice: Twenty-two doesn't say too much to me.

Mr. Lucyk: So the numbers really are, I think, more in favor of our position and if these seven states abolish reciprocity then we are looking at no more than fifteen, a handful of states which still include reciprocity.

The other point that we would like to make is that discretionary admission without examination has been subject to further Constitutional attacks on a regular basis involving these so-called interstate harmony provisions of the Constitution.

We can see further attacks down the road on the full-time practice requirements.

For instance, a non-resident attorney will then challenge the full-time practice requirement saying it imposes an excessive burden on the non-resident who has to maintain an office in the state.

So we may see full-time practice disappear.

We may also see the requirement of reciprocity disappear, because it is, indeed, a reciprocity program.

Texas, for instance, will not admit Florida lawyers to its bar because Florida law requires everyone to take an examination.

The same applies to Louisiana lawyers, all of whom are required to take an examination.

I can see the Louisiana lawyer suing the Texas State Bar because they do not grant reciprocity to Louisiana lawyers, and that being struck down on the Commerce clause because reciprocity is a protectionist provision that the Commerce clause bars.

And once that happens, then all of the rest of those states are going to fall like dominoes and we are going to have a complete vulcanization of the legal profession.

Unidentified Justice: Louisiana follows the Napoleonic law and not the common law?

Mr. Lucyk: That's correct, Justice.

Louisiana's different.

All of the states, I would submit to you, are different, some more so than others.

Unidentified Justice: It has civil law.

Mr. Lucyk: Justice, I think you are correct that Louisiana is the only state that has civil law--

Unidentified Justice: Thank you.

Mr. Lucyk: --but, indeed, all of the states and the principles of federalism, you know, provide that each state has its own laws.

Not every state has the uniform commercial code or other uniform laws.

In Virginia--

Unidentified Justice: You might try the Commonwealth of Puerto Rico.

That might help you out a little.

Mr. Lucyk: --Thank you, Justice Scalia.

So, our position then is that the application of the interstate harmony provisions of the Constitution against these reciprocity rules doesn't really make sense, because in a sense you are defeating the very purpose that these rules are intended to promote.

And I'd just like to state a few more words about why we believe that privileges and immunities clause ought not apply to discretionary admission without examination.

First, a holding in this case that we must admit the Maryland lawyer who under Rule 1(a)(1) without regard to residence, in fact, would require absolute equality in Virginia's treatment of residents and non-residents.

We submit this Court has recognized on numerous occasions that absolute equality is not a prerequisite of the privileges and immunities clause.

And, in fact, this Court has approved the principle that the clause is satisfied if a state provides a reasonable and adequate means for the non-resident's enjoyment of the regulated activity.

Here, the bar examination is, in fact, a reasonable and adequate alternative means.

Unidentified Justice: May I ask you a question about the general subject because you know so much more about it than I do.

Has anybody ever challenged the reciprocity requirement itself?

In other words, what is the reason for saying a Florida lawyer where they don't have it should not be admitted whereas an Illinois lawyer may be admitted.

What's the reason for that?

Mr. Lucyk: What is the reason for the rule?

Unidentified Justice: Has anybody said that's subject to challenge?

Or any of these... talking about all the others.

Mr. Lucyk: No, Your Honor.

To my knowledge, that case hasn't been brought yet.

But it's only in very recent years that we've seen commerce clause and privileges and immunities challenges to these discretionary admission provisions.

And it's only recently that the courts have begun to apply those provisions to these discretionary admission--

Unidentified Justice: I'm just reflecting, in terms of the interest you describe of giving good service to the Virginia clients, it is puzzling to me why a Florida lawyer wouldn't qualify as much as an Illinois lawyer, if he had met the restrictions of full-time practice and residence if he moved from Florida.

But he would not be eligible?

He or she would not be eligible?

Mr. Lucyk: --Justice Stevens, let me articulate one reason why I think, you know... the presumption seems to be in this day and age that if there is any condition which limits admission to the bar it must be the product of economic protectionism.

But there is another very valid reason for a bar, a state bar, wanting to maintain a reasonable and controllable size of the bar it is required to regulate.

And by the 1990s, there will be one million practicing attorneys in this country.

It's a staggering thought for a bar-regulating authority to have to consider, even if just ten percent of those attorneys seek admission to the bar by reciprocity, regulating a bar of 100,000 attorneys or even more, especially for a bar like Virginia which has only 14,000 attorneys at this time.

And trying to regulate all of the potential misconduct problems that could arise.

Indeed, most of the states now have great backlogs in their disciplinary proceedings because they simply cannot keep up with the numbers.

But not only regulating misconduct problems, but also trying to enforce, for instance, mandatory continuing legal education requirements on a national scale.

Unidentified Justice: Well, I think that all makes good sense, but I would suppose that is directed at the distinction between reciprocity states and nonreciprocity states, just as in the same way that you might say we'll only take lawyers whose names begin with A through M.

Because that would serve the same purpose.

Mr. Lucyk: Justice, it certainly may serve the same purpose, but we submit here that Virginia's rule does achieve a number of very laudable purposes.

It does open the doors to reciprocity for and grant a right of travel to non-resident attorneys, so they may come into the state and engage in the practice of law.

At the same time, it still ensures a guarantee of competence and commitment from those attorneys.

So we submit that the Virginia rule does achieve a balance, a good balance, from the complete exclusion that was presented, for instance, in the Piper case, and from the unregulated, uncontrollable bar which might exist if there were no limitations on the authority of a state to impose some conditions on admission.

If there are no further questions, I'd like to reserve a few minutes for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Lucyk.

We will hear now from you, Mr. Hitchcock.

ORAL ARGUMENT OF CORNISH F. HITCHCOCK, ESQ. ON BEHALF OF APPELLEE

Mr. Hitchcock: Thank you, Mr. Chief Justice, and it may it please the Court:

There are two ways that a lawyer may be admitted to the Virginia Bar.

The first method is to take and pass the bar examination which is administered twice a year and which is available to all applicants who meet certain educational and character requirements.

The second method is the one at issue here and it allows lawyers to be admitted without taking the bar examination if they meet three requirements: first, they have been licensed for a least five years by a state which extends the same opportunity to Virginia lawyers; second, they are willing to comply with the full-time practice requirement; and, third, they are permanent residents of Virginia.

I should add that these are ongoing requirements, that one may be liable to expulsion from the Virginia Bar if a motion applicant moves out of the state or ceases to practice there on a full-time basis.

The residency requirement that is the focus of today's case is justified on two grounds: first, that it assures a lawyer's commitment to the state; and, second, that it helps to assure compliance with the full-time practice rule.

If I may, at this point, I'd like to respond to a point Mr. Lucyk made in response to Justice O'Connor's question about after hours availability.

This is the first time we have heard the argument that lawyers must be available after 5 o'clock or that that's one of the purposes of why the rule is in effect.

I think it's unlike the cases involving police officers or fire officers who are expected by municipality to be available after hours.

To the extent that Virginia did want to impose such a requirement, however, Ms. Friedman is willing to honor any commitment that Virginia imposes upon its own citizens.

That's really what I think is the core issue here.

She is willing to do whatever Virginia asks its own citizens to do in order to be admitted on motion.

She is complying with the full-time practice rule.

She is willing to pay Virginia Bar dues.

She is willing to take the continuing legal education requirements that Virginia imposes upon bar members, regardless of whether they are admitted on motion or by examination.

She is willing to do pro bono volunteer work.

Despite all of these commitments, her application was denied solely because of the fact that when she leaves the parking lot at night she goes home to Maryland.

Before discussing the privileges and immunities clause legal issues, I'd like to make a comment on the facts here which might help put the issue in perspective and show how unconnected residence is with the goals that the state is advancing.

Ms. Friedman began work with her current employer in Virginia in January of 1986.

At that time, she was living in Virginia and qualified for admission on motion under Rule 1(a)(1).

The problem in her situation is that the next month she got married and moved to her husband's home in Maryland.

Suppose instead of getting married then, she had waited a year, had been admitted on motion.

If at the time she got married a year later, she wanted to move into her husband's home in Maryland, she had to chose between facing the possibility of some expulsion or disciplinary action under Rule 1(a)(3) or else sitting down and taking the full Virginia Bar examination.

While the situation may not be universal, I suggest it illustrates one way in which this rule does not advance the goals that the Commonwealth suggests.

Unidentified Justice: Is that such a terrific hardship to sit down and take the Virginia Bar?

I mean that's really what this all comes down to, that she just doesn't want to take the Virginia Bar examination.

Mr. Hitchcock: It is, Your Honor, particularly vis-a-vis equally qualified applicants in the same situation she is who are making the same commitment.

Let me, since you bring it up, illustrate that it does impose a hardship.

First of all, a lawyer who has to take the examination must wait up to six or seven months in order for the examination to be administered.

They then must wait an additional three--

Unidentified Justice: That is true of everybody getting out of law school.

They have to wait for awhile for the exam and no one gets it instantly.

Mr. Hitchcock: --Yes, Mr. Chief Justice, but here again we are dealing with experienced lawyers who the state is willing to say we will excuse you from this waiting time, from this obligation, if you live in Virginia.

As a result of that, it puts her in a slightly different position.

Unidentified Justice: She just couldn't work at her job for six or seven months.

Mr. Hitchcock: That is true, too.

The other thing here is that this rule offers a special opportunity for experienced lawyers, people who are out practicing, holding down a full-time job, holding a full-time practice, who have to take time away from that practice in order to study for and prepare for the bar examination.

As we've pointed out, that is a fairly substantial burden on a practicing lawyer.

The review course which a lawyer would have to take, the most popular one meets for twenty hours a week for six weeks before the bar examination.

A lawyer is likely to have to take that, plus spend additional time preparing.

Moreover, the lawyer who has to go through--

Unidentified Justice: But there is no doubt, I take it, that Virginia could require that of everyone.

Mr. Hitchcock: --That is correct.

They could require the examination of everyone.

But what Virginia has said: we don't believe that people should, that experienced lawyers should be obliged to take this test.

They don't have to prove themselves if they are willing to live in Virginia.

Having made that decision and having an applicant such as Ms. Friedman who has made exactly the same commitments and is presumably as competent as an equally qualified resident, the only issue is whether the fact she is willing to live in Maryland at night means that she must be tested to the same extent as someone just out of law school or somebody who already lives in the state.

Unidentified Justice: Well, Mr. Hitchcock, at least one state, rather one court, the Seventh Circuit, I believe, has held in a very similar situation that the right to be admitted to practice on motion just isn't a fundamental privilege, protected under the privileges and immunities clause.

Isn't that right?

Mr. Hitchcock: Let me address that.

The court, before it got to that point--

Unidentified Justice: In the Sestric case.

Mr. Hitchcock: --The Sestric case, yes.

The Sestric case was distinguishable first of all because it held that the clause doesn't apply because the universe of people being advantaged are new residents of Illinois and the people being discriminated against were old Illinois residents as well as non-residents.

Finding no symmetry between residents versus non-residents, the court said that the clause does not apply for that reason.

That is not the situation here.

Unidentified Justice: I think the court also had the view that admission on motion just isn't a fundamental privilege.

Mr. Hitchcock: That was an additional point which they discussed.

But, here, the distinction that was made here, and I think in Sestric as well, is that as long as a state gives you some opportunity to get a license, that it is free to impose preferential or discriminatory conditions even if, as in this case, they would be run afoul of the Constitution.

It's like an unconstitutional condition that the court has recognized in other cases, that even if a state has no obligation to give a certain gratuitous benefit to people it still must grant that benefit in a manner that's consistent with the Constitution.

Unidentified Justice: Well, if admission on motion is not a fundamental privilege, then there's nothing unconstitutional about imposing that condition.

Mr. Hitchcock: If it were, but I think that you have to focus on what Piper held.

Piper said, consistent with a number of earlier cases, that it is the opportunity to practice law that is at issue.

More specifically, in Toomer, in Austin, the court said the inquiry is whether out-of-state residents are being treated on terms of substantial equality with non-residents.

Have state residents demanded for themselves a benefit which is not being extended to equally qualified non-residents.

That's precisely the situation here.

Virginia residents have the opportunity to be admitted in a very efficient and inexpensive manner, indeed, almost a risk-free manner and that option is simply denied to out-of-state residents.

I think the problem with the argument that's advanced by the state and in Sestric is the assumption that the clause only applies if lawyers are totally excluded from the bar, if out-of-staters are totally excluded from a certain privilege.

This Court has never held that.

I think this case is closest to the cases involving commercial licenses where a state has said we will let out-of-staters in but we are simply going to charge them a higher licensing fee.

Now, there may be no fundamental right to pursue a certain occupation.

In the fishermen cases, for example, the state may say that we are going to put such and such type of fish are off limits for environmental purposes and allow no one the opportunity.

But once they make a decision to allow someone to pursue their professional career in the state, they must make it available on terms of substantial equality to residents as well as non-residents.

To follow up on Justice Scalia's earlier question, there just is not that term of substantial equality here, to make lawyers, as a practical matter, take time away from their existing practice to review courses they may not have examined since they were in law school and probably are not going to be practicing in their practice in Virginia, to have to wait for ten or eleven months to be admitted through the exam process when lawyers can be admitted on four months by examination, to have basically a risk-free way of getting into the bar as opposed to the risk that any lawyer faces upon taking examination.

Indeed, I would suggest, for experienced lawyers that risk may be particularly greater.

If a lawyer has specialized in the tax field, there are a lot of subjects that that lawyer may not have addressed since he or she was in law school and must bone up on them and risk the possibility of failure even though that lawyer is not going to deal with them.

Finally, there's one additional aspect where there is a penalty here.

If Ms. Friedman had stayed in Virginia, she could have been admitted to the bar on motion by paying a fee of $225.00.

Because she moved out of the state, she is required to pay $100.00 extra in order to take the bar examination.

It's an example of the preferential treatment.

Unidentified Justice: Can't a state make an added fee there for non-residents because of the added difficulties of investigating their background?

Mr. Hitchcock: It may, Mr. Chief Justice.

Indeed, in this case, for exam applicants there is a differential that is directly related to that cost.

If a lawyer seeking admission on examination wants to take the examination, he or she is interviewed by a local bar committee in his or her home county.

The cost, I believe, is $50.00 for everything else... I'm sorry, $150.00.

But if that lawyer lives out of the state and wants to take the examination, there is an extra charge of $175.00 solely for the character reference analysis.

That sort of distinction, which is directly tied to the extra burdens of investigating character of people who live out of state, I don't think we would challenge because of that direct tie.

It's closely tailored.

There is a substantial relationship under the criteria this Court has enunciated for that kind of criteria.

But that's not this case.

You take a person who is equally qualified and the fact that she gets married and moves to her husband's home in Maryland means she has to pay more--

Unidentified Justice: Did you challenge that explicitly in the Fourth Circuit?

Did they cover that in their opinion?

Mr. Hitchcock: --No.

We did not challenge the differing fee.

The point I'm making, to get back to Justice Scalia's first question, it's part of the burden that is being placed on lawyers who are as qualified as Virginia residents but who have to take the examination.

Justice Scalia asked isn't this about somebody who doesn't want to take the examination.

My answer is yes, because there are important practical consequences if one must take the examination as opposed to being able to be admitted on motion.

And they are: the greater risk, the higher cost, the review course, and the additional time that has to be spent.

Those are practical matters that concern experienced lawyers.

Unidentified Justice: Mr. Hitchcock, I tend to agree with your point that this a pretty blunt way and inefficient way of achieving what Virginia asserts it has in mind, that is some assurance of full-time interest.

But I would think it would normally, that fit, would normally be enough in a run-of-the-mind equal protection case, to meet a rationality test.

It's pretty blunt, but close enough for government work as we say.

What you're arguing, it seems to me, is that once you identify a fundamental right that's subject to the privilege and immunity clause, every aspect that has anything to do with that right suddenly gets elevated to a point where there can't be any loose fit at all.

You're really requiring very refined judgements by the legislature, by the Supreme Court of Virginia here.

Why should we go along with that?

Why shouldn't we just say, if you're excluded that's bad.

But here, you're not excluded.

What we're arguing about is whether you have to take the bar exam.

That's not a privilege or immunity.

Mr. Hitchcock: The answer, Justice Scalia, is that this Court has required a heightened form of scrutiny whenever there is preferential treatment for out-of-staters vis-a-vis equally qualified in-staters.

It's part of the importance that the privileges and immunities clause plays on the Constitutional framework, of not allowing equally qualified people from another state to be denied a certain benefit.

The standard, I guess, in the Camden case, as well as in the Court's decision in Piper, is not... it says that there must be a substantial reason for the discrimination or the preference in question and there must be a close fit.

It has employed heightened scrutiny, more than is required in the rational basis cases, given the importance of the clause in not erecting barriers between people who are trying to pursue professional pursuits in the different states.

So, my answer is the Court has required the opportunities, but they do provide opportunities if the consideration is closely tailored.

As I indicated in response to the Chief Justice's question, if somebody wants to take the examination but lives out of the state and cannot be examined by a local character committee, he may be able to charge them a little bit more money to have the National Conference of Bar Examiners do the work.

But that's very different in kind from a rule that says we have two equally qualified lawyers, both working side by side in the same office, both making the same commitment, both willing to represent Virginia lawyers, and one of them can be admitted because he or she lives in Virginia... on motion because he or she lives in Virginia... and the other has to take the bar examination because she crosses the Theodore Roosevelt Bridge on her way home at night is not a substantial fit.

There's not a substantial reason for making a distinction on that basis.

There are other more closely--

Unidentified Justice: Well, is this much different than would be a Virginia rule that said if you graduate from a law school in Virginia you need not take the bar?

But if you graduate from any other law school you must?

Mr. Hitchcock: --I think if the rule said that Virginia lawyers may be admitted without taking examination--

Unidentified Justice: No.

Graduates from Virginia law schools.

Mr. Hitchcock: --provided that admission to a Virginia law school was available to out-of-state residents, that out-of-staters could try to get in to the Virginia Bar through this method, no, I don't see a problem with that.

Unidentified Justice: Well, if they say if you graduate from Virginia law schools you need not take the bar, but if you graduate from any other law school in the country you must take the bar?

Mr. Hitchcock: I don't think there would be a problem with that.

And the reason is that if you're creating a preferential way of obtaining a license, so long as there's an option for lawyers who want to avoid the examination of taking advantage of that, i.e., by attending the Virginia law school, then I wouldn't see the problem because you have the open access.

The critical point is that one must attend the Virginia law school, and lawyers who say I want to practice in Virginia, without having to take an examination, have an opportunity to pursue that option regardless of their state of citizenship or where they come from.

Unidentified Justice: So, the bar exam isn't much of a fundamental right, having to take the bar exam?

Mr. Hitchcock: The fundamental right is the opportunity to pursue one's professional pursuits free from restrictions that discriminate solely on the basis of state citizenship and which are not substantially related to a state's goal.

That's really what we're talking about here.

The question is not do you have some means of pursuing your profession?

The Court did not ask that question in the fishermen cases or even in Piper.

The argument in Piper was: sure, you can practice in New Hampshire.

You can appear pro hac vice and come in on individual cases.

We're not keeping you out.

There's a way you can come in and practice law in our state, but we're just not going to let you obtain a particular license.

The fundamental right, going back to Courtfield v. Coryell, and in every subsequent case through Piper, has focused on can somebody pursue their career in a manner, with the same, on terms of substantial equality with in-state residents.

That is simply not being provided here.

The only reason why she's being excluded is her citizenship in another state.

Virginia has made a decision that its own citizens don't have to take the bar examination if they meet these criteria.

Having satisfied the same criteria, the only question is may she be excluded.

If I may, I'd like to turn now to the specific rationales that the Appellants have raised in defense of this particular rule.

The first rationale is that it promotes a lawyer's commitment to Virginia.

My initial comment is I'm not really sure what that means.

It seems to be a reformulation of the arguments which the Court rejected in Piper about how residence assures one's competence and commitment and ethical behavior and willingness to do volunteer work and the like.

I think there was a very straightforward answer which the Court gave in Piper that I think answers this concern.

The Court, as we read the case, took a very pragmatic approach.

It said: lawyers are not going to seek admission to a bar unless they anticipate a considerable practice there, unless they are willing to take on the burden of paying bar dues and continuing legal education requirements, and any pro bono requirements, anything else that the state may seek to impose.

There is an ongoing investment, a personal investment, of time and money that lawyers make if they seek admission to a bar, regardless of whether they are admitted on examination or admitted on motion.

Suppose, for example, an experienced lawyer is asked by a client can you represent me in Virginia or in Maryland.

If it's a one-time offer, the lawyer may have no need to be admitted and may not seek to be admitted as a member of the bar.

But if the client says can you represent me on a regular basis.

Can you come in and handle all the litigation I've got or all this kind of work that I have in that state, the lawyer may say it's worth my while to seek admission to that bar, with all the benefits as well as the responsibilities, that that entails.

So that is why, we would suggest, that the arguments about commitment which the Court rejected in Piper apply with equal force in the context of motion admissions, regardless of whether there's a lesser burden in terms of being able to be admitted on motion without taking the examination.

Lawyers don't seek admission to state bars unless they anticipate that they are going to use the opportunity to practice there and unless they are willing to shoulder the burdens.

I think that's particularly... I just added a footnote to that... true, I think, in states where lawyers seek to practice on a multi-state basis.

Lawyers are not going to want a license to practice in two or three states and expect to practice there unless they are willing to honor whatever commitments are entailed with multiple bar membership and multiple practice.

Even if the Court were not willing to stop there and say that these reasons... the argument is not sufficiently substantial... there is an additional factor here that is unique to Virginia that I think should lay to rest any doubts about the validity or invalidity of the residence requirement.

I'm speaking specifically about the full-time practice rule.

If Virginia may validly seek to say that all lawyers admitted on motion must commit themselves to full-time practice in the state, then the residency requirement becomes, as the Fourth Circuit says, redundant.

Unidentified Justice: Mr. Hitchcock, what do you understand is meant by the full-time practice requirement?

Mr. Hitchcock: The only interpretation that the Supreme Court of Virginia has provided is in the Titus case, which we cite in Footnote 2 of our brief, which is that a lawyer must have an office in Virginia and must practice there on a, quote, regular, unquote, basis.

The court... that's a 1972 or 1973 decision... has not construed it since then.

Regular, they apparently equate with full-time but I'm not sure about what would happen if lawyers did other things, even if they were living in Virginia, if they wanted to do things other than practice law forty hours a week, thirty-five hours a week, or whatever it may be.

The court has not provided any more specific guidance and there are no disciplinary opinions or other rulings that provide clearer guidance on this point.

Unidentified Justice: Mr. Hitchcock, do you think the full-time practice requirement is Constitutional?

Mr. Hitchcock: Your Honor, in cander we argued in Goldfarb v. Supreme Court of Virginia that the full-time practice requirement was invalid under the commerce clause.

Unidentified Justice: If that's an invalid requirement, how can it be a substitute for protection for what the state seeks to protect here?

Mr. Hitchcock: Well, as I indicated in the earlier point, I think the Court could stop just by saying... by following Piper in saying that one's commitment to Virginia is sufficiently assured without regard to whether or not there's a full-time practice requirement.

Unidentified Justice: You mean by the mere fact that your client applied for admission?

That's enough?

Mr. Hitchcock: The fact that she applied for admission and the fact that she was willing to do anything that Virginia seeks to ask her short of full-time practice would be enough here.

Unidentified Justice: Because she's represented she's willing to do it.

But how can they enforce those representations?

Mr. Hitchcock: I'm sorry, which representations?

Unidentified Justice: Well, you say she will practice full-time.

Supposing her client opened a branch office over in Annapolis or someplace, with a subsidiary, and asked her to devote part of her time to supervising the affairs of that corporation?

She couldn't do it.

Mr. Hitchcock: She couldn't do it, but neither could a lawyer who happened to live in Arlington.

If the Virginia firm--

Unidentified Justice: Unless both requirements are invalid.

Mr. Hitchcock: --Unless both requirements... well, for the--

Unidentified Justice: And both seem somewhat restrictive.

Mr. Hitchcock: --They are.

I mean, the full-time practice requirement does have some of the same problems of the residence requirement.

What it does is it allows a lawyer into the state only if they agree to give up all interstate or multi-state practice.

I would add, although it's not essential to resolution of this case, multi-state practice is the sort of thing which I think states should be encouraging.

As Chesterfield Smith, the former American Bar Association president, noted in an article which the Court cited with approval in Piper, as lawyers get older and more experienced the demand for their services across state lines increases and restrictions which limit their ability to practice really disserve the public and disserve the clients who may need and wish to retain their services.

Unidentified Justice: Yes, but as you develop that argument what do you say about the state's position that really what's going to happen here is that the states are all going to start requiring bar exams and that will make the problem even more acute?

Mr. Hitchcock: Well, my answer is that... two answers to that.

First of all, there's no case of which I am aware involving discriminatory or preferential treatments where any court has tried to predict what's going to happen.

When a preferential law is struck down, a state has two choices: they can make the benefit available to everyone or they can make it available to no one.

This Court has never held, certainly, that a reviewing court or reviewing judge should say: what is the state likely to do?

Does that result constitute sound public policy in my mind and, therefore, I'm going to uphold the Constitutionality or strike down the Constitutionality based on that prediction.

Unidentified Justice: But it's very rare that the whole reason for an individual's asking us to strike it down is the same reason that would be frustrated by one of the courses that the state might take.

That's what seems, to me, ironic about this case.

The very reason you're urging this upon us is to enable freer commerce between the states in legal services.

And it's quite possible that the result you are going to achieve, if we hold the way you want, is to reduce that freedom rather than increase it.

Mr. Hitchcock: It may be a possibility but that's a risk involving any kind of preferential law.

There are also, I think, corrective mechanisms.

I mean, the people who are injured if this provision were to be withdrawn are not only lawyers from out of the states, but Virginia law firms who may want to make it easier to recruit lawyers, and may be willing to say to the Virginia Supreme Court or the legislature which created this option in the first place: we'd like the opportunity, it's really difficult because everyone has to take the bar exam, would you consider some kind of waiver of the exam for people, without regard to the fact that they may chose to live outside the state.

There are other corrective mechanisms but, again, regardless of the ironies, if an institution decides to close down or no longer make certain benefits available because it has to admit other people, that's not an argument that it's Constitutional or valid or should be upheld.

It's the Court's function, I would respectfully submit, to apply the law here and to let the consequences be decided based upon what the Court's ruling is.

And here, even if the Court does, if the full-time practice rule remains in effect... although as I indicated in response to Justice Stevens, there are problems with that... that should be enough to satisfy the goals that the state seeks to achieve with respect to assuring a compliance, competence, whatever else.

I think that specific argument is undercut by the fact that Virginia has no enforcement mechanism and the notion that without the residence requirement lawyers would be likely to set up sham residences is equally likely as the prospect that they will set up sham offices, which they're likely to do.

It might be said, ironically enough, if there are ironies in this case, the people who this rule keeps out now are those lawyers who cannot in good conscience say: I'm willing to practice full-time, I live in Virginia.

The lawyers who are allowed in under the rule may be those who don't honor their professional commitments to the same as someone like Ms. Friedman.

Those lawyers may be admitted to the bar.

They may be practicing in other states or living in other states.

The fact that there's no enforcement mechanism may be keeping out the people who can serve Virginia clients well, allowing in those who are not doing the sort of things Virginia seeks of people who want to be admitted on motion.

In the remaining time, I'd like to take a moment to talk about the other arguments.

If the Court should decide that the privileges and immunities clause doesn't apply here, as some of the questions have indicated, we still submit that the judgement should be invalidated under the equal protection clause, that there is no rational basis for holding that where a lawyer lives promotes compliance with the rule or promotes one's commitment to the jurisdiction.

In recent terms, the Court has struck down under that rational basis test some preferential tax laws which sought to give preferences to state residents vis-a-vis non-residents: the Court found that that effort to give the hometeam an advantage, as it said in one case, was not rationally connected to the goals which were advanced.

Unidentified Justice: What case are you referring to, Mr. Hitchcock?

Mr. Hitchcock: Metropolitan Life Insurance Company v. Ward, the Alabama tax insurance--

Unidentified Justice: Do you regard that as being good law today?

Mr. Hitchcock: --I'm not aware of any subsequent precedent that might cast doubt on it.

Unidentified Justice: I would think that Northeast Bank case cast considerable doubt on it.

Mr. Hitchcock: Well, in the Northeast Bank Corp, I think that was... Northeast Bank Corp. came before that, I think, by one term, but there is a difference there, I think, because you had the Congressional seal of approval upon the legislation in question there.

It was not simply an effort by a state to regulate without Congress having looked at the issue.

I think that would be a distinction, vis-a-vis this here.

Cases such as Williams v. Vermont, that was a case in which the state of Vermont gave an exception from paying a tax to Vermont residents who bought a car in another state, paid tax there and then came back to Vermont.

That was an exemption.

It's a benefit... something given to Vermont residents that was not given to citizens of other states who bought a car in, say, New York, paid the tax there, came into Vermont and had to pay the tax again.

The Court there rejected the justifications that were offered about what amounted to a higher burden on state residents, Vermont residents, vis-a-vis out-of-state residents.

We've also suggested that the provision would be invalid under the commerce clause for some of the reasons that I suggested earlier in colloquy with Justice Stevens.

And I see that my time has expired.

If the Court has no further questions, we would ask that the judgement of the Fourth Circuit be affirmed.

Chief Justice William H. Rehnquist: Thank you, Mr. Hitchcock.

Mr. Lucyk, you have four minutes remaining.

ORAL ARGUMENT BY GREGORY E. LUCYK, ESQ. ON BEHALF OF APPELLANTS -REBUTTAL

Mr. Lucyk: Thank you, Mr. Chief Justice.

If it please the Court:

I'd first like to respond to something that Justice White said during my... Appellee's argument here, and that is that you expressed concern that if the Appellee were required to take the bar examination she wouldn't be able to work for six or seven months.

That is simply not true.

The bar examination is only a two-day examination and the bar review course that is offered for that occurs in the evening hours.

In fact, the Appellee could apply for the bar examination in May, take the bar review course, take the exam at the end of July, and she'd admitted to the Virginia Bar by October.

Unidentified Justice: Well, a lot depends on when she decides to make this decision, isn't it?

The bar exam is given twice a year.

Mr. Lucyk: That's correct.

It's given in February and July.

In her case, she sought admission to the bar, she wrote her letter in early summer, and she was still within the time frame that would have allowed her to--

Unidentified Justice: She was working in Virginia.

She had a legal job in Virginia, and until she takes the bar and passes it, she is not supposed to act like a lawyer in Virginia.

Whatever the time is, it may be a day, it may be two weeks, but while she's waiting to pass the bar she can work as a lawyer.

Mr. Lucyk: --I think, you know, that's an interesting question, Justice White.

Unidentified Justice: Well, do you think she could open a law office and hold--

Mr. Lucyk: I think she certainly could advise her clients on federal securities law, which was the bulk of her work.

Unidentified Justice: --Well, could she open an office in Virginia until she passes the bar?

She couldn't, of course.

Mr. Lucyk: She could be employed by her corporation as she was.

Unidentified Justice: I just asked you, could she open an office and practice law?

Mr. Lucyk: She could not hang out her shingle as a sole practitioner.

No, she could not.

Unidentified Justice: And she can't act like a lawyer working for this organization, either.

Mr. Lucyk: But, Justice, neither can the reciprocity admit you until they get that license to practice law.

In reality, the time it takes is about the same.

If you apply for the bar exam in May and are admitted in October, that four to five month period is the same period of time that it takes for someone to apply for reciprocity, to have the papers processed by the National Conference of Bar Examiners, and to do the other things that have to be done.

The average period of time is about four months.

So, we're not talking about a difference in time commitment.

There's no question, and we're not going to deny, that the bar examination imposes a burden.

We believe that our restricted license by reciprocity also imposes a burden on applicants.

It offers a choice of burden.

The choice is: the burden imposed, or the initial burden, of taking the bar examination establishes the assurance of commitment and competence and frees that lawyer from any other long term burdens.

There's no requirement to maintain a full-time practice or even an office in Virginia.

And, certainly, there's no requirement of residence in Virginia.

On the other hand, the reciprocity rule imposes a long term burden.

Yes, it does alleviate the initial requirement of the examination but for as long as that person intends to practice law in Virginia, they have the burden of maintaining that full-time practice, complying with that rule of residing in the state, and making themselves available on a full-time basis to serve Virginia clients.

The facts in this case are atypical and for that reason we submit that the principle here is much broader.

The principles at stake are much broader than the facts of this case.

Yes, Ms. Friedman, the Appellee does live close to the border.

But the majority of reciprocity applicants aren't going to live that close.

They're going to live many more miles away and further distant locations.

So, the particular facts about her closeness or nextness to Virginia are not going to apply in the majority of the cases.

Unidentified Justice: Well, is that right if they practice full-time in Virginia?

Don't you have to presume they live pretty close?

Mr. Lucyk: Well, I don't think so.

I think if we must rely on the promise then we've got to rely on that same promise from someone who lives in Laurel or near Baltimore, that they, in fact, intend to commute every day to Virginia and when they go home in the evening they are not going to establish... you know, through social or community contacts... an outside practice.

If you require us to make that presumption in this case, where on its face, yes, it seems that that presumption may be legitimate, then we've got to make it in every case.

And that's my point, that the rule doesn't apply just to this unique factual situation.

It applies to all of the conceivable situations.

Chief Justice William H. Rehnquist: Mr. Lucyk, your time is expired.

The case is submitted.