Fourth Circuit affirms local rule restricting out of state attorneys in Maryland
This is a case about bar membership. Specifically, the NAAMJP challenged Local Rule 701 of the U.S. District Court for the District of Maryland under the First Amendment, the Equal Protection Clause, the Rules Enabling Act and the Supremacy Clause.
Rule 701 allows admission to the District Court for Maryland attorneys, or to non-Maryland attorneys only in states whose district courts observe reciprocity for admissions with the District Court. The Court will also not admit a non-Maryland attorney if they have an office in Maryland.
Under the First Amendment, professional licensure is permissible so long as the government does not try to control public discourse through regulation of the profession. The Fourth Circuit concluded that the licensure requirement of Rule 701 does not regulate speech and therefore the First Amendment is not implicated. The Court also dismisses with other First Amendment issues in a footnote:
We reject all other arguments raised by NAAMJP—including speaker discrimination and violation of the right to free association and petition—as meritless and utterly inapplicable to Rule 701. I would have liked to see more on those issues, honestly.
The Court also concludes that Rule 701 does not infringe any fundamental right or disadvantage any suspect class. Because there is a rational basis for the rule (encouraging bar membership in the state), the rule passes constitutional muster under the equal protection clause.
Rules Enabling Act
The Act allows the judiciary to make rules governing their business. NAAMJP argued that the statute mandated that the rules not abridge, enlarge or modify any substantive right. However, the Court concluded that reference was to rights afforded by rules of practice that come out of the rulemaking process, i.e., the Act tells District Courts not to use local rules to contravene rules of the Supreme Court.
The Supremacy Clause
If a federal law and state law conflict, the federal law wins. Rule 701 is a federal law, so the Supremacy Clause does not really apply – nor should it.
While I would love to see an organization like NAAMJP make progress on its apparent mission to have more cross-border attorneys, this particular fight was not one they could win in the Fourth Circuit.