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Tolchin v. Supreme Court of the State of N.J.

May 2, 1997

ROBERT J. TOLCHIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

APPELLANT,

v.

THE SUPREME COURT OF THE STATE OF NEW JERSEY; ROBERT WILENTZ (INTENDED TO BE THE CHIEF JUDGE OF THE SUPREME COURT OF NEW JERSEY); STEPHEN W. TOWNSEND (INTENDED TO BE THE CLERK OF THE SUPREME COURT); THE NEW JERSEY STATE BOARD OF BAR EXAMINERS; SAMUEL J. UBERMAN (INTENDED TO BE THE ASSISTANT SECRETARY OF THE NEW JERSEY SUPREME COURT WHO PLAINTIFF BELIEVES TO DIRECT THE STATE BOARD OF BAR EXAMINERS); THE NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION; JOSEPH J. HOGYA (INTENDED TO BE THE INSTITUTE FOR CONTINUING LEGAL EDUCATION SKILLS TRAINING COURSE DIRECTOR)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 94-cv-04860)

Before the Sackman revision, the Rule presumed that without a principal office in New Jersey, an attorney would lose contact with New Jersey law and procedure, and would therefore be unable to serve clients competently. Id. But the Court observed that to the extent this premise might be true, it is only marginally true. Id. at 1021. The Court concluded that "the public would be better served if licensed New Jersey attorneys residing, for example, in New York and Philadelphia were subject to no greater restrictions in their practice in New Jersey than those residing in Newark and Camden" because more qualified attorneys would be available to the New Jersey public. Id. at 1019.

LEWIS, Circuit Judge.

Filed May 2, 1997

ARGUED SEPTEMBER 10, 1996

OPINION OF THE COURT

To practice law in New Jersey, an otherwise qualified attorney must maintain an office and attend continuing legal education courses there. The question before us is whether such requirements are lawful. We conclude that they are, and thus will affirm the district court's grant of summary judgment in favor of the Appellees.

I.

Rule 1:21-1(a) of the Rules Governing the Courts of the State of New Jersey (the "Rule") indicates who may practice and appear in New Jersey courts. The New Jersey Supreme Court amended this Rule, effective September 1, 1996, while this appeal was pending. The Rule now states that

no person shall practice law in this State unless that person is an attorney, holding a plenary license to practice in this State, has complied with the R.1:26 skills and methods course requirement in effect on the date of the attorney's admission, is in good standing, and maintains a bona fide office for the practice of law in this State regardless of where the attorney is domiciled.

N.J.Ct.R. 1:21-1(a) (1996) (emphasis added).

A.

The Bona Fide Office Requirement

The Rule defines "bona fide office" as "more than a maildrop, a summer home that is unattended during a substantial portion of the year, an answering service unrelated to a place where business is conducted, or a place where an on-site agent of the attorney receives and transmits messages only." Id.

The Rule also outlines some indicia of a bona fide office. It

is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney's behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time. Id.

The bona fide office requirement is the successor to New Jersey's more stringent residency requirement for members of the New Jersey bar. Indeed, as we discuss below, over the years New Jersey has sought to diminish the disparity in treatment between resident and nonresident attorneys. Moreover, the history of New Jersey's residency and bona fide office requirements demonstrates the interests at stake in this case. As we will explain, each revision has sought to strike a different balance of the public interest, the interests of the New Jersey bar and the interests of potential members of the bar. Because those interests are at the core of the dispute in this case, we will briefly trace the relevant history and meaning of the various revisions to the Rule.

At the outset we note that until 1969, New Jersey required that attorneys be residents of New Jersey in order to practice there. In re Sackman, 448 A.2d 1014, 1017 (1982); see Pressler, Current New Jersey Court Rules, Comment R. 1:21-1 (1969). The rationale for this requirement was that "residence in New Jersey implies a community commitment in terms of both interest and activity which better serves local clients and their interests." Editorial, Proposed Revision of the Rules of the Court, 90 N.J.L.J. 164 (1967) ("1967 Editorial"). Supporters of the residency requirement maintained that it ensured that the general public had access to qualified and committed counsel. Id. But while the residency requirement was in effect until 1969, the New Jersey Supreme Court had been considering revising it since 1960.

In 1960, the New Jersey Supreme Court appointed the Coordinating Committee on the Revision of the Rules of Court to review the state's rules of court, including the residency requirement. Sackman, 448 A.2d at 1017.

In 1966, The Committee recommended that the residence requirement be modified so that a nonresident attorney could practice law in New Jersey as long as he or she was "in regular attendance at an office in this state maintained for the practice of law." 1967 Editorial; see Sackman, 448 A.2d at 1017. This proposed revision was intended to benefit attorneys who chose to live in New York or Pennsylvania and to practice in New Jersey. 1967 Editorial. These attorneys argued that the residency requirement placed an unreasonable restriction on their choice of residence because they were equally -- if not more-- qualified to practice in New Jersey than resident attorneys who primarily practiced in another state. Id. The proposed revision was tailored to prevent the occasional practice of law by those who practiced primarily in another state. Sackman, 448 A.2d at 1017.

The 1966 recommendation was criticized for several reasons. First, it was unclear what "regular attendance" meant. 1967 Editorial. Critics suggested that the proposed revision would allow attorneys who predominantly practiced in New York or Philadelphia to meet the requirement by attending a New Jersey office on a regular but infrequent basis. Id. Furthermore, some members of the New Jersey bar feared that this revision would make it more difficult for people to secure qualified and committed counsel. Id. They believed that New Jersey residents would be better served by local counsel who would be "presumably, better equipped, in terms of currency and facility with New Jersey law and practice." Id. Finally, the proposal was criticized because of its "adverse impact on the economic interests of the New Jersey bar . . . ." Id. The proposal was not implemented.

In 1969, the Coordinating Committee proposed another revision which allowed any attorney to practice in New Jersey who was either domiciled there or maintained his or her principal office there. Sackman, 448 A.2d at 1017. While allowing for a more expansive choice of residence for members of the New Jersey bar, this recommendation implicitly rejected the possibility of attorneys engaging in multi-state practice. Id. The New Jersey Supreme Court implemented this recommendation. Id.

However, the 1969 Rule failed to limit multi-state practice completely. Some attorneys practiced in New Jersey by virtue of their residency in the state, but did not maintain a bona fide office there either because their office was in another state or because their New Jersey practice was irregular. Pressler, Current New Jersey Court Rules, Comment R. 1:21-1 (1982).

Thus, effective September 1978, the Rule was amended again to require that a resident attorney maintain a bona fide office in New Jersey and that a nonresident attorney maintain his or her principal office there. Id. This version of the Rule was more restrictive of nonresidents than of residents because only the former had to maintain their principal offices in New Jersey. As a result of this requirement, a nonresident attorney's New Jersey practice could not be subordinate to a practice in another state. Id.

"Bona fide office" was not defined in the 1978 Rule, leading to another amendment in September, 1981. This amendment defined a bona fide office as

a place where the attorney or a responsible person acting on his behalf can be reached in person and by telephone during normal business hours. A bona fide office is more than a maildrop, a summer home that is unattended during a substantial portion of the year, or an answering service unrelated to a place where business is conducted.

Sackman, 448 A.2d at 1018; N.J.Ct.R. 1:21-1(a) (1983).

In 1982, the New Jersey Supreme Court, as part of its decision in Sackman, amended the Rule again in order to excise the facial discrimination against nonresidents. Under the revised Rule, both residents and nonresidents had to maintain bona fide offices in New Jersey in order to practice there. Sackman, 448 A.2d at 1019.

From 1982 to 1996, the only official changes made to the Rule were not substantive. However, in 1994, following a formal hearing concerning a bar member who had attempted to satisfy the bona fide office requirement by renting, but not actually using, office space in New Jersey, the Committee on Attorney Advertising, appointed by the New Jersey Supreme Court, issued Opinion 19 to clearly define "bona fide office." 138 N.J.L.J. 320. The Committee recommended that the attorney be disciplined and stated that a bona fide office had to be "a place where clients are met, files are kept, the telephone is answered, mail is received and a responsible person acting on the attorney's behalf can be reached during normal business hours." Id. In 1996, the New Jersey Supreme Court adopted the substance of Opinion 19 in its revision of the Rule. N.J.Ct.R. 1:21-1 (1996).

Thus, there is no question that over the last few decades, New Jersey has sought to reduce facial discrimination against nonresident attorneys. There is also no question that the bona fide office requirement imposes at least some restriction on all attorneys who wish to practice in New Jersey. One of the issues in this appeal is the extent to which these ...


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