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Supreme Court of Virginia v. Friedman

    Brief Fact Summary. In order to be admitted to the Virginia bar “on motion,” the applicant must be a permanent resident of Virginia. Myrna Friedman, a Maryland resident, challenged the requirement when she was denied admission to the bar “on motion”.

    Synopsis of Rule of Law. A state must only accord residents and non-residents equal treatment for privileges bearing on the vitality of the nation as a single unit. If a state denies non-residents such a privilege, it must have a substantial justification for the difference in treatment that substantially relates to the state’s objective in correcting the problem.

    Facts. Myrna E. Friedman lived in Virginia from 1977 until 1986. During that time she was admitted to the Illinois Bar and District of Columbia Bar by reciprocity. She worked in Virginia from 1977 to 1982 and in Washington, D.C. from 1982 to 1986. In 1986 she again started working in Virginia at her company’s principal place of business. In 1986 Friedman moved from Virginia to Maryland and applied for admission to the Virginia bar on motion. Virginia denied her motion based on a statute that said attorneys who wish to obtain a license “on motion” must be permanent residents of the Commonwealth. Friedman satisfied all of the requirements except residency.

    Issue. Does the Virginia residency requirement for admission to the bar “on motion” burden the right to practice law, a privilege protected by the Privileges and Immunities Clause, by discriminating among otherwise equally qualified applicants solely on the basis of citizenship or residency?

    Held. Justice Kennedy opinion: Yes. Decision of the Court of Appeals for the Fourth Circuit affirmed.
    The practice of law, like other occupations, is sufficiently basic to the national economy to be deemed a privilege protected by the Clause. As the court noted in Piper, the Clause is implicated whenever a State does not permit qualified nonresidents to practice law within its borders on terms of substantial equality with its own residents.
    Although Virginia did not totally exclude nonresidents from practicing in the State that does not mean its rule is beyond the reach of the Privileges and Immunities Clause.
    The State does have a substantial interest in assuring that the admitted attorney has a stake in her professional licensure and a concomitant interest in the integrity and standards of the bar. Virginia is justifiably concerned with ensuring that its attorneys keep abreast of legal developments but it can protect these interests through other equally and more effective means that do not infringe constitutional protections.
    The restrictions placed here by the state do not closely relate to the advancement of its interests. Lawyers who are admitted in other states and seek admission in Virginia are not less likely to respect the bar and further its interests solely because they are nonresidents. When a state waives the examination requirement, it cannot make a distinction between residents and nonresidents.
    The facts here prove this point. Friedman earns her living working as an attorney in Virginia and it is of scant relevance that her residency is located in Maryland. She has a substantial stake in the practice of law in Virginia. Although the state says Friedman’s case is atypical, many attorneys admitted on motion show their intention to maintain an office and regular practice in the State.

    Dissent. Justice Rehnquist and Scalia dissenting.
    The Privileges and Immunities Clause does not require states to ignore residency when admitting lawyers to practice in the way that they must ignore residency when licensing traders in foreign goods. The Court extends the reasoning of Piper too far.

    Discussion. If a Privileges and Immunities question from Article IV arises and the statute denies “fundamental rights” to out-of-state residents merely because they are living outside the state, then the statute is void unless the State can find a valid reason unrelated to the location of the residents that would justify the discrimination.


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