November 2006

Topic:
A rule prohibiting a non-admitted attorney from maintaining a law office in a state where he or she does not posses a law license does not offend the constitution even when that that non-admitted attorney merely confers with out-of-state clients by telephone from the in-state office, regardless of the nature of the legal issues or the whereabouts of the client.

Montgomery Blair Sibley v. Barbara L. Hergenroeder and Melvin Hirshman, 2006 WL 3354137, No. DKC 2006-1222 (D.Md. November 17, 2006). Hergenroeder is Director of Character and Fitness for the Maryland State Board of Law Examiners. Hirshman is Bar Counsel for the Attorney Grievance Commission of Maryland. Sibley happens to be a member in good standing of the Bars of New York, Florida, and the District of Columbia. During 2002, two grievances were filed against him with the Florida Bar, one alleging that he failed to pay child support, the other claiming that he was too litigious. As of the date of this opinion, however, the Florida Bar had not filed any formal charges against him in response to those grievances. While the grievances were pending, Sibley passed the Maryland Bar Examination and was notified of his test score in October 2005. In late 2005, however, Hergenroeder wrote him a letter requesting verified information about the Florida grievances. Sibley then realized that he would not be admitted in Maryland until the Florida grievance process was over. It should be noted that the admissions policy in this situation seems consistent with admissions practice in most jurisdictions. As a practical matter, many prospective admitting states defer making any ultimate admissions decision until extant grievances in other states of licensure are concluded without the filing of formal charges. Sibley did not like this mode of operation and requested that Maryland proceed with its admissions recommendation as the Florida matter was “likely to drag on for years and [I am] being denied the ability to practice in Maryland on allegations which have not been proved…” At this same time, Hirshman wrote Sibley concerning Sibley's letterhead. His letterhead read “Law Office of Montgomery Blair Sibley, Chartered,” and listed a Rockville, Maryland address, despite the fact that Sibley was not a member of the Maryland Bar. Hirshman informed Sibley that it was his duty to investigate any possible unauthorized practice of law by members of the Bars of other jurisdictions and requested a response from Sibley explaining his activities in Maryland. Sibley, who fancies himself to be an “international and nation-wide pro hac vice” lawyer, defended his actions to Hirshman on the grounds that: (1) his letterhead clearly indicates that he is not admitted to practice law in Maryland; (2) he is a resident of Rockville and leases space there to avoid the commute to his other office in Washington, D.C.; (3) he has no Maryland clients; (4) he does not advertise in Maryland; and (5) his sole activity in his Rockville office is to receive mail and answer telephone calls from out-of-state clients. After receiving this information, Hirshman wrote Sibley that, to the extent that Sibley was regularly advising clients on the telephone from a Maryland office, he was engaged in the unauthorized practice of law in violation of Maryland rules and, “It would appear that it may be necessary for me to seek injunctive relief.” The federal suit followed, Sibley claiming that the admissions and disciplinary process denied him due process and violated the Commerce Clause, the Sherman Anti-Trust Act the First Amendment, and Privileges and Immunities. Motions to dismiss were filed by the state actors. As to Sibley’s challenge of the admissions policy, the district court declined review the issue. Agreeing that the Maryland admissions policy could potentially raise constitutional concerns, the district court nevertheless ruled that Sibley did not attack the admissions rule itself, he only challenged its application in his particular case. As a result, because the court lacked subject matter jurisdiction to review the admissions procedures as it applied to a particular applicant, the claim against Hergenroeder had to be dismissed. Further, to the extent that Sibley was petitioning the court to issue a writ of mandamus compelling the Board to make a determination regarding his specific application, the district court again lacked jurisdiction to grant review. As to the disciplinary issue concerning his letterhead, the district court also applied the Feldman doctrine and held that Hirshman’s investigation was essentially a state judicial proceeding for purposes of federal court jurisdiction notwithstanding the fact that no formal charges had ever been filed against Sibley. According to the district court, Feldman clearly precludes a federal district court from rehearing a particularized adjudication and thus the court could not review Bar Counsel's decision as to Sibley. Sibley, however, challenged the constitutionality of the disciplinary rules, specifically those that Hirshman used to define the unauthorized practice of law to include “advising out-of-state clients by telephone from Maryland on non-Maryland legal issues.” The district court agreed that it had the jurisdiction to hear a challenge to general state bar rules and it could review the sufficiency of Sibley's complaint in this regard. Sibley’s complaint was, however, deficient as a matter of law because an attorney has no right to due process from a ruling denying that attorney the ability to practice pro hac vice. The district court’s most interesting discussion in granting Hirshman’s motion to dismiss dealt with the Commerce Clause issue. The relevant Maryland rule provides that a non-admitted attorney may not maintain an office in Maryland from which he or she advises clients by telephone, regardless of the nature of the legal issue or the location of the client. The district court had to determine whether the rule was per se invalid and in doing so, the court held that the rule does not directly regulate interstate commerce because it applies to activities occurring solely within Maryland, even if it might incidentally affect the interstate provision of legal services. Further, the rule did not favor in-state economic interests, it merely distinguished between members and non-members of the Maryland Bar. The court also held that a rule prohibiting a person not licensed in Maryland from maintaining a Maryland law office from which he or she advises clients is not unduly burdensome. The rule does not prohibit all lawyers licensed elsewhere from ever using a phone within Maryland to advise their clients. Rather, it limits only those who maintain an office within the state. A lawyer licensed elsewhere who wants to practice extensively in Maryland, such that he requires an office in the state, has the option of applying to the Maryland Bar or petitioning the state court for permission to practice pro hac vice. The burden on interstate commerce does not outweigh the state's legitimate interest in regulating the practice of law within its borders. Thus, Sibley failed to state a claim upon which relief could be granted.

This multi-jurisdictional practice decision appears to be somewhat at variance with federal rulings from other jurisdictions. See e.g., Surrick v. Killion , 449 F.3d 520 (3rd Cir. June 2, 2006), the NOBC June 2006 Featured Disciplinary Case found at: http://www.nobc.org/cases/0606.asp. It also raises interesting and fundamental issues concerning big firm law practices.