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Reciprocity Case Analysis

Although Mostkoff was unsuccessful, and the Supreme Court did not consider his constitutional challenges even worthy of discussion, this may not be the end of the matter. Just last month, a federal court in North Carolina held that a state-specific reciprocity provision, identical in all relevant respects to Wisconsin’s, violated the Fourteenth Amendment right to travel, in a case involving nearly identical facts. Morrison v. Board of Law Examiners of the State of North Carolina, No. 5:04-CV-92-BO(3), 2005 WL 602588 (Feb. 4, 2005, E.D.N.C.).

Morrison graduated from law school in 1979, and is licensed to practice in Indiana, Ohio, and California. He maintained offices in both Ohio and Indiana until he moved to California in 1984, obtaining admission in 1985. In 2000, he moved to North Carolina. North Carolina has reciprocity (comity) agreements with Ohio and Indiana, but not California.

In 2003, he applied for comity admission to the North Carolina Bar. In the six years immediately preceding the application, he practiced law in both California and as in-house counsel in North Carolina.

Similar to Wisconsin SCR 40.05, North Carolina Rule .0502 provides that, to obtain comity admission, an applicant must prove that he is "duly licensed to practice law in a state, or territory of the United States, or the District of Columbia, having comity with North Carolina and that in such state, or territory of the United States, or the District of Columbia, while so licensed therein, the applicant has been for at least four out of the last six years, immediately preceding the filing of the application with the Secretary, actively and substantially engaged in the full-time practice of law."

The bar examiners denied Morrison admission because, rather than living in Indiana or Ohio (states having comity admission with North Carolina), he had resided in California (a state without comity admission) during the preceding years.

Morrison brought suit in federal court, alleging that both the comity requirement, and the state-specific requirement that he have practiced for four of the past six years in a comity state, violate the Constitution. The court held that Morrison lacked standing to challenge the comity requirement, and that, as a resident of North Carolina, he could not assert a claim under the Privileges and Immunities Clause.

However, the court agreed that the state-specific prior practice restriction violated Morrison’s Fourteenth Amendment right to travel, relying on the U.S. Supreme Court decision in Saenz v. Roe, 526 U.S. 489 (1999).

In Saenz, the court struck down a California statute that limited AFDC benefits to new residents to the amounts they could have received in the state of their prior residence. The court held that, by distinguishing between two groups of beneficiaries based solely on the location of their prior states of residence, the statute discriminated against citizens in violation of their right to travel.

Applying Saenz to Morrison’s case, the federal district court acknowledged that the text of the rule considers location of prior practice, and not residence, but concluded, "the Rule in fact considers Plaintiff’s prior residence because plaintiff both lived and worked in California."

The court added, "like the statute at issue in Saenz, the state-specific practice requirement treats him differently based on his immediately prior state of residence."

The court defined the "favored group" of applicants as "those admitted in a jurisdiction having comity with North Carolina who have practiced in that jurisdiction for four of the past six years and are in good standing in every jurisdiction in which they are admitted to practice."

The court listed several categories of applicants who fall into "disfavored groups," but found only one group whose identity is based solely on the location of prior residence and practice location: "lawyers admitted in a comity jurisdiction who have been practicing law for four of the past six years and are in good standing with every jurisdiction in which they are admitted but have not been practicing in a comity jurisdiction."

The court acknowledged that North Carolina had a legitimate and important purpose in having only the most competent attorneys be licensed to practice in North Carolina, but found the state-specific requirement was not narrowly tailored to serve that interest.

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The court reasoned, "[North Carolina’s] purpose is served by the comity requirement alone. Admission in a state having comity with North Carolina indicates an applicant’s competence as a lawyer." The court noted that North Carolina’s purpose is further served by the requirements that the applicant have been actively engaged in the full-time practice of law, and be in good standing in every state in which he is licensed.

However, the court found the state-specific rule did not serve the government interest, reasoning, "There is no jurisdiction in the United States that has a particularly deficient legal bar. Thus, there is little chance that a lawyer’s experience practicing in a non-comity jurisdiction could adversely affect his professional competence.

Here, Plaintiff has spent the last six years practicing in both North Carolina and California. Neither jurisdiction’s legal bar is so defi
cient as to raise questions about plaintiff’s competence as an attorney."

Thus, notwithstanding the Wisconsin Supreme Court’s decision, Mostkoff and other attorneys in his position have, at their disposal, ready-made persuasive authority should they wish to challenge the state-specific practice requirement in federal court.

– David Ziemer

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David Ziemer can be reached by email.

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