Parnell v. WV Supreme Court ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALBERT H. PARNELL,
Plaintiff-Appellant,
v.
No. 96-1245
THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA; WEST VIRGINIA
STATE BAR,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
William M. Kidd, Senior District Judge.
(CA-95-108-1)
Argued: October 31, 1996
Decided: April 14, 1997
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Williams and Judge Motz joined.
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COUNSEL
ARGUED: Michael Edward Hutchins, HAWKINS & PARNELL,
Atlanta, Georgia, for Appellant. John M. Hedges, BYRNE &
HEDGES, Morgantown, West Virginia, for Appellee Court of
Appeals; Robert Mason Steptoe, Jr., STEPTOE & JOHNSON,
Clarksburg, West Virginia, for Appellee State Bar. ON BRIEF:
Thomas G. Tidwell, HAWKINS & PARNELL, Atlanta, Georgia, for
Appellant. Lori A. Dawkins, STEPTOE & JOHNSON, Clarksburg,
West Virginia, for Appellee State Bar.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
A lawyer appearing pro hac vice in West Virginia must be spon-
sored by a member of that state's bar who practices law on a daily
basis from an office located in West Virginia. Albert H. Parnell, a
Georgia lawyer who is also licensed in West Virginia, appeals the dis-
trict court's decision that West Virginia's in-state office requirement
for local counsel does not violate the Privileges and Immunities
Clause of the United States Constitution. We affirm.
I.
The Supreme Court of Appeals of West Virginia (West Virginia or
State Supreme Court) promulgates rules governing the practice of law
in that state. See W.Va. Const. art. 8,§ 3; W.Va. Code § 51-1-1a.
These rules are embodied in the State Supreme Court's Rules for
Admission to the Practice of Law (Practice Rules). See W.Va. Code
Ann. Ct. Rules (Michie 1997). The West Virginia State Bar, an
administrative agency of the court, see W.Va. Code § 51-1-4a(d),
from time to time makes recommendations to the court for amend-
ments to the Practice Rules.1
This case stems from a 1995 amendment to West Virginia's Prac-
tice Rule for visiting lawyers, Rule 8.0, "Admission Pro Hac Vice."2
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1 "All persons practicing law" in West Virginia are required to be mem-
bers of the State Bar. See W.Va. Code § 51-1-4a(d).
2 The Latin phrase "pro hac vice" means: "For this turn; for this one
particular occasion. For example, an out-of-state lawyer may be admitted
to practice in a local jurisdiction for one case only." Black's Law Dictio-
nary 1212 (6th ed. 1990). We will use the Latin phrase because it is
widely understood and convenient shorthand.
2
Prior to the amendment, the rule simply required the pro hac vice
applicant to "be associated with an active member in good standing
of the state bar, who shall be a responsible local attorney in the action
. . . ." This version of the rule raised questions about whether a mem-
ber of the West Virginia bar whose office and principal place of prac-
tice was outside West Virginia could serve as a"responsible local
attorney" under Rule 8.0. As a result, on the motion of the West Vir-
ginia State Bar, the State Supreme Court on March 1, 1995, amended
Rule 8.0(c) to clarify who qualifies as a "responsible local attorney:"
"In order to be a `responsible local attorney' the local attorney must
maintain an actual physical office equipped to conduct the practice of
law in the State of West Virginia, which office is the primary location
from which the `responsible local attorney' practices law on a daily
basis." The State Supreme Court and the State Bar maintain that the
amendment is an appropriate exercise of the court's authority to regu-
late the practice of law by out-of-state lawyers not licensed in West
Virginia by requiring them to associate with local counsel who will
be accessible and meaningfully involved in a given case.
The 1995 amendment prevents Parnell from being a"responsible
local attorney," even though he is a member in good standing of the
West Virginia State Bar. Parnell's situation is as follows. He is a resi-
dent of Atlanta, Georgia, where he practices law as a partner at Haw-
kins & Parnell (formerly Freeman & Hawkins), a firm of over forty
lawyers. Parnell has been a member of the State Bar of Georgia since
1969, and he became a member of the West Virginia State Bar in
1989.
Parnell is widely known for his expertise in the defense of asbestos
personal injury cases. He has represented defendants in a number of
these cases in West Virginia, with several of them going to trial in
both state and federal court. In 1995 Parnell was representing three
defendants in an asbestos case in the Circuit Court of Monongalia
County, West Virginia, a state trial court. On August 17, 1995, pur-
porting to be a responsible local attorney, he filed a motion to have
three other lawyers in his firm admitted pro hac vice in that case. In
his motion Parnell said that the three were "specialists in the area of
asbestos litigation." He later said that his clients wanted the three law-
yers "to assist [him] in pretrial matters and at the trial of the [ ] case."
The state trial judge denied the motion to admit Parnell's colleagues
3
pro hac vice on the ground that Parnell "does not meet the require-
ments to be a `responsible local attorney' as defined in Rule 8.0(c) [of
the Practice Rules]" because he does not have a West Virginia office
that is "the primary location from which he practices law on a daily
basis."
Parnell promptly filed a declaratory judgment action in the United
States District Court for the Northern District of West Virginia
against the West Virginia Supreme Court and the State Bar. Parnell
sought an order declaring the rule unconstitutional, arguing, among
other things, that Rule 8.0(c) is in effect a residency restriction that
violates the Privileges and Immunities Clause, U.S. Const. art. IV,
§ 2, cl. 1. After briefing and oral argument on the merits, the district
court rejected Parnell's argument and dismissed his complaint. See
Parnell v. Supreme Court of Appeals of West Virginia , 926 F. Supp.
570 (N.D. W. Va. 1996). Parnell now appeals.
II.
Parnell argues that sponsoring pro hac vice applications "is a neces-
sary and fundamental part of practicing law." Brief for Appellant at
6-7. According to Parnell, Practice Rule 8.0(c)-- which requires him
to have a West Virginia office for the daily practice of law in order
to sponsor such applications in the courts of that state -- is in effect
a residency requirement that violates the Privileges and Immunities
Clause.
Article IV, § 2, cl. 1 of the United States Constitution provides that
the "Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States." The primary purpose of
this clause "was to help fuse into one Nation a collection of indepen-
dent, sovereign States. . . . In line with this underlying purpose, it was
long ago decided that one of the privileges which the clause guaran-
tees to Citizens of State A is that of doing business in State B on
terms of substantial equality with Citizens of that State." Toomer v.
Witsell, 334 U.S. 385, 395-96 (1948). Although the clause uses only
the term "Citizens," it is also read in most cases to cover residency.
See Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64 (1988).
The United States Supreme Court has developed a two-step analy-
sis for determining whether a residency-based restriction of an activ-
4
ity offends privileges and immunities protections. First, "the activity
in question must be `sufficiently basic to the livelihood of the Nation
as to fall within the purview of the Privileges and Immunities
Clause.'" Id. at 64 (quoting United Bldg. & Constr. Trades Council
v. Mayor and Council of Camden, 465 U.S. 208, 216 (1984)). In other
words, a "fundamental right" must be implicated: the "out-of-state
resident's interest [in the activity restricted] in another State [must be]
sufficiently `fundamental' to the promotion of interstate harmony so
as to fall within the purview of the [Clause]." United Bldg. & Constr.
Trades Council, 465 U.S. at 218 (quoting Baldwin v. Montana Fish
& Game Comm'n, 436 U.S. 371, 388 (1978)). Second, "if the chal-
lenged restriction deprives nonresidents of a protected privilege," the
restriction is invalidated only if it "is not closely related to the
advancement of a substantial state interest." Friedman, 487 U.S. at 64
(citing Supreme Court of New Hampshire v. Piper , 470 U.S. 274, 284
(1985)).
Of course, the privileges and immunities analysis is only applied
if the restriction is based on residency. We turn first to that threshold
issue.
A.
The West Virginia Supreme Court and the State Bar argue that the
privileges and immunities analysis has no bearing on this case
because Practice Rule 8.0(c) does not impose a residency require-
ment. They emphasize that the rule does not say a member of the
West Virginia bar must be a state resident to serve as local counsel.
But Parnell maintains that the rule in effect has a residency require-
ment because local counsel must have a West Virginia office from
which he practices law on a daily basis.3 Although Parnell offered no
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3 Parnell says that West Virginia's intent to impose a residency require-
ment for local counsel is confirmed by a comment made by the Chief
Justice of the West Virginia Supreme Court at a State Bar meeting
shortly after Rule 8.0(c) was amended in 1995. The Chief Justice said
that one of the reasons for the amendment was "to level the playing
field." We expect the Chief Justice simply made this comment in recog-
nition of the fact that a number of other states expressly condition pro
hac vice admission upon association with an in-state lawyer who resides
5
evidence to the district court on the subject, he makes the sweeping
claim in his brief that "nonresident West Virginia bar members do not
and cannot practice law on a daily basis from an office in West Vir-
ginia." Brief for Appellant at 9. However, in its opinion the district
court noted that "numerous nonresident West Virginia bar members
can and do practice law on a daily basis from offices located in West
Virginia." Parnell, 926 F. Supp. at 572. This statement was appar-
ently based on the district judge's own experience over many years
on both the state and federal bench.
West Virginia is bordered by five states and its northern and east-
ern panhandles are narrow. A look at a regional map reveals that
numerous locations in West Virginia are within commuting distance
from places in Virginia, Maryland, Pennsylvania, Ohio, and Ken-
tucky. We do not know exactly how many nonresident lawyers com-
mute into West Virginia each day to work, but we are convinced that
West Virginia's configuration and location prevent Rule 8.0(c) from
imposing a residency restriction. We therefore agree with the district
court that Rule 8.0(c) contains "no prohibition against any nonresi-
dent West Virginia bar member practicing law on a daily basis in
West Virginia and thus qualifying as a responsible local attorney." Id.Moreover, the daily practice requirement applies to both resident and
nonresident bar members in the same way. A State Bar member who
resides in West Virginia but who practices law on a daily basis in an
office outside the state does not qualify as local counsel under the
rule.
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in or has an office in the forum state. See, e.g., Ark. Court Rules Govern-
ing Admission to the Bar, Rule 14 (residency requirement); Ga. Bar Rule
1-203 (same); Iowa Court Rule 113 (same); Kan. Stat. Ann. § 7-104(same); Neb. Rev. Stat. § 7-103 (same); Nev. Rule of Court 10-2 (same);
N.C. Gen. Stat. § 84-4.1 (same); S.D. Codified Laws § 16-18-2 (same);
Tenn. Court Rules Ann. 19 (same); Wyo. Court Rules Ann. 104 (same);
Del. Supreme Court Rule 71 (in-state office requirement); Mo. Supreme
Court Rule 9.03 (same); N.J. Rules of Court, Rule 1:21-2 (same). The
Chief Justice also said that a purpose of the amendment was "to ensure
the accountability of lawyers [licensed in other states] who practice in
West Virginia."
6
Because Rule 8.0(c) accords equal treatment to nonresidents and
residents and because nonresidents can qualify as local counsel under
the rule, there is no residency classification that requires scrutiny
under the Privileges and Immunities Clause.
B.
Even if we assume that Practice Rule 8.0(c) amounts to an in-state
residency requirement, the privileges and immunities protections still
do not apply to the activity (sponsoring pro hac vice applicants) regu-
lated by the rule. We reach this conclusion by examining the first
prong of the privileges and immunities test, which centers on whether
a fundamental right is implicated.
We recognize, of course, that the United States Supreme Court has
held that the opportunity to practice law is a fundamental right under
the Privileges and Immunities Clause because of its importance to the
national economy and to the vindication of noncommercial rights.
Piper, 470 U.S. at 281-82. This broad holding, however, does not
answer the much narrower question of whether sponsorship of pro hac
vice applicants is a fundamental component of the right to practice
law.
The West Virginia Supreme Court and the State Bar contend that
this narrow question is covered by Leis v. Flynt , 439 U.S. 438 (1979).
In Leis v. Flynt the Supreme Court held that a state court could deny,
without a hearing, a lawyer's motion to appear pro hac vice. Id. at
443-44. This is because the interest in appearing pro hac vice is not
a "cognizable property [right] within the terms of the Fourteenth
Amendment." Id. at 443. Thus, whether to grant a visiting lawyer pro
hac vice admission is "wholly [ ] discretionary" with the forum state.
Id. at 444 n.5. Parnell responds that West Virginia's Leis v. Flynt
argument -- that pro hac vice admission is a discretionary privilege
-- has nothing to do with his situation. Parnell has not been denied
pro hac vice admission. Instead, he says that he has been denied the
opportunity to sponsor pro hac vice applicants, an opportunity he says
is necessary to the exercise of his right to practice law.
We understand the distinction between sponsorship and admission,
but we do not think the distinction saves Parnell's claim. We believe
7
that Leis v. Flynt's holding that practicing pro hac vice is not a Four-
teenth Amendment property right offers some support for the proposi-
tion that sponsoring pro hac vice applicants is not a fundamental
component of the right to practice law for purposes of the Privileges
and Immunities Clause. In any event, Parnell's own circumstance
confirms for us that sponsorship of pro hac vice applicants is not a
fundamental component of the right to practice law. As a member of
the West Virginia bar Parnell remains quite free to perform the essen-
tial tasks of a litigator in his area of specialty. When one of his clients
is sued in West Virginia, he can appear as lead counsel or co-counsel,
answer a complaint, make dispositive or procedural motions, take or
defend against discovery, try the case, and participate freely in any
appeal. He can do this even though he is a resident of Georgia, where
he is also a member of the bar and where his forty-person law firm
has its offices. Thus, West Virginia's rule governing who may spon-
sor pro hac vice applications has not stripped Parnell of his funda-
mental right to practice law.4
Because we find that no fundamental right is at stake, we need not
decide whether Rule 8.0(c) satisfies the "substantial state interest"
prong of the privileges and immunities analysis. 5
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4 None of the Supreme Court cases cited by Parnell go so far as to sug-
gest that making pro hac vice motions is a fundamental component of the
right to practice law. These cases include Barnard v. Thorstenn, 489 U.S.
546 (1989) (rule requiring applicants (i) to live in Virgin Islands for one
year prior to applying for bar admission and (ii) to state their intent to
remain in Virgin Islands violated the Privileges and Immunities Clause);
Friedman, 487 U.S. at 59 (rule requiring Virginia residency as a condi-
tion for reciprocal, examination free, admission to Virginia bar by lawyer
licensed in another state violated the Privileges and Immunities Clause);
Piper, 470 U.S. at 274 (rule limiting bar admission to state residents vio-
lated Privileges and Immunities Clause). Moreover, all of these cases
recognize the importance of not interfering with the ability of a state to
regulate those who practice law within its borders.
5 In his complaint Parnell alleges that Rule 8.0(c) places an undue bur-
den on interstate commerce in violation of the Commerce Clause, U.S.
Const. art. I, § 8, cl. 3. The district court found that the Commerce
Clause claim was abandoned because it was not briefed or argued. See
Parnell, 926 F. Supp. at 571 n.1. Although the issue has been briefed on
appeal to us, we decline to consider it because it was abandoned when
the merits of the case were litigated in district court. See Bakker v.
Grutman, 942 F.2d 236, 242 (4th Cir. 1991).
8
III.
The judgment of the district court is
AFFIRMED.
9