Supreme Court of Virginia v. Friedman

The Supreme Court of Virginia failed to prove that its residency requirement as a prerequisite for admission to the Virginia State Bar Association did not discriminate against nonresidents. The Court found that the right to practice law was an essential activity protected by conditional criteria stipulated under the Privileges and Immunities Clause. This decision reaffirmed a standard of implementation of the Privileges and Immunities Clause set in previous precedents, which could be applied to other professions regarded as vital to national interests.

Myrna E. Friedman, a resident of Virginia from 1977 to 1986, was employed as a civilian attorney by the Department of the Navy in Arlington, Virginia, from 1977 to 1981, and as an attorney in private practice in Washington, D.C., from 1982 to 1986. In January of 1986 she started working as associate general counsel for ERC International, Inc., a Delaware corporation, and she was practicing and maintaining her offices at the company's place of business in Vienna, Virginia. In February of 1986 she married and moved to Maryland. Four months later, in June of 1986, she applied for admission to the Virginia bar "on motion." Because she had experience practicing law, she requested admission to the Virginia bar without taking Virginia's bar examination.

The Virginia Supreme Court Rule 1A:1 permits admission on motion of qualified lawyers who had been admitted to practice in another state. This rule was designed as an ameliorative provision for those lawyers who had previously practiced in another jurisdiction and who wanted to become new residents of Virginia. The rule required, among other things, reciprocity between states; the other jurisdiction must admit Virginia's attorneys without examination. As a part of the procedure, the Virginia Supreme Court stipulated that the applicant:

(a) Is a proper person to practice law, (b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination, (c) Has become a permanent resident of the Commonwealth, (d) Intends to practice full-time as a member of the Virginia bar.

Friedman offered her arguments in a letter accompanying her application saying that she would practice full-time as a member of the Virginia bar and that she would keep informed of changes in the local law. Stating that her petition as a nonresident for admission to the bar, on motion, was under the protection of the Privileges and Immunities Clause of Article IV, 2, of the Federal Constitution, she also referred to the U.S. Supreme Court's decision in Supreme Court of New Hampshire v. Piper (1985). However, Friedman's request was denied on the grounds that she was no longer a resident of Virginia. The rationale for denial by the clerk of the Supreme Court of Virginia stated that the court had concluded that the U.S. Supreme Court's decision in Piper was not applicable to the "discretionary" residence requirement of the Virginia rule. (Virginia had "discretionary" freedom to choose to apply the residency requirement as a condition of admission by reciprocity.)

The case of Supreme Court of New Hampshire v. Piper (1985) invalidated a state residency requirement for admission to practice, holding that it violated the Privileges and Immunities Clause. The clause forbade any discrimination against residents of other states in favor of its own and was intended to create a national economic union, but it also protected other interests relating to the union (e.g., in Doe v. Bolton [1973], the right to seek medical care). The clause is self-executory: its enforcement is dependent upon the judicial process. In deciding the Piper case, the U.S. Supreme Court used a previously established, two-pronged test which was intended for residency restrictions that may have limited privileges and immunities protections. The test examined if the activity in question was essential for the interest of the nation and whether restrictions bore a substantial relationship to the objectives of a state. In the Piper case, the Court also recognized the right to practice law as an essential activity.