JUSTICE POWELL delivered the opinion of the Court.
The Rules of the Supreme Court of New Hampshire limit bar admission to state residents. We here consider whether this restriction violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, 2.
On May 7, 1980, Piper requested from the Clerk of the New Hampshire Supreme Court a dispensation from the residency requirement. Although she had a "possible job" with a lawyer in Littleton, New Hampshire, Piper stated that becoming a resident of New Hampshire would be inconvenient. Her house in Vermont was secured by a mortgage with a favorable interest rate, and she and her husband recently had become parents. According to Piper, these "problems peculiar to [her] situation . . . warrant[ed] that an exception be made."
On May 13, 1980, the Clerk informed Piper that her request had been
denied. She then formally petitioned the New Hampshire Supreme Court for
permission to become a member of the bar. She asserted that she was well
qualified and that her "situation [was] sufficiently unique that the granting
of an exception . . . [would] not result in the setting of any undesired
precedent." The Supreme Court denied Piper's formal request on December
Derived, like the Commerce Clause, from the fourth of the Articles of Confederation, the Privileges and Immunities Clause was intended to create a national economic union. It is therefore not surprising that this Court repeatedly has found that "one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State...."
There is nothing in Ward, Toomer, or Hicklin suggesting that the practice of law should not be viewed as a "privilege" under Art. IV, 2. Like the occupations considered in our earlier cases, the practice of law is important to the national economy. The "activities of lawyers play an important part in commercial intercourse."
The lawyer's role in the national economy is not the only reason that
the opportunity to practice law should be considered a "fundamental right."
We believe that the legal profession has a noncommercial role and duty
that reinforce the view that the practice of law falls within the ambit
of the Privileges and Immunities Clause. Out-of-state lawyers may - and
often do - represent persons who raise unpopular federal claims. In some
cases, representation by nonresident counsel may be the only means available
for the vindication of federal rights. The lawyer who champions unpopular
causes surely is as important to the "maintenance or well-being of the
Union," as was the shrimp
fisherman in Toomer or the pipeline worker in Hicklin.
Lawyers do enjoy a "broad monopoly . . . to do things other citizens
may not lawfully do." We do not believe, however, that the practice
of law involves an "exercise of state power" justifying New Hampshire's
The Supreme Court of New Hampshire offers several justifications for its refusal to admit nonresidents to the bar. It asserts that nonresident members would be less likely (i) to become, and remain, familiar with local rules and procedures; (ii) to behave ethically; (iii) to be available for court proceedings; and (iv) to do pro bono and other volunteer work in the State. We find that none of these reasons meets the test of "substantiality," and that the means chosen do not bear the necessary relationship to the State's objectives.
There is no evidence to support appellant's claim that nonresidents might be less likely to keep abreast of local rules and procedures. Nor may we assume that a nonresident lawyer - any more than a resident - would disserve his clients by failing to familiarize himself with the rules. As a practical matter, we think that unless a lawyer has, or anticipates, a considerable practice in the New Hampshire courts, he would be unlikely to take the bar examination and pay the annual dues of $125.
We also find the appellant's second justification to be without merit, for there is no reason to believe that a nonresident lawyer will conduct his practice in a dishonest manner. The nonresident lawyer's professional duty and interest in his reputation should provide the same incentive to maintain high ethical standards as they do for resident lawyers. A lawyer will be concerned with his reputation in any community where he practices, regardless of where he may live.
There is more merit to appellant's assertion that a nonresident member of the bar at times would be unavailable for court proceedings. In the course of litigation, pretrial hearings on various matters often are held on short notice. At times a court will need to confer immediately with counsel. Even the most conscientious lawyer residing in a distant State may find himself unable to appear in court for an unscheduled hearing or proceeding. Nevertheless, we do not believe that this type of problem justifies the exclusion of nonresidents from the state bar. One may assume that a high percentage of nonresident lawyers willing to take the state bar examination and pay the annual dues will reside in places reasonably convenient to New Hampshire. Furthermore, in those cases where the nonresident counsel will be unavailable on short notice, the State can protect its interests through less restrictive means. The trial court, by rule or as an exercise of discretion, may require any lawyer who resides at a great distance to retain a local attorney who will be available for unscheduled meetings and hearings.
The final reason advanced by appellant is that nonresident members of
the state bar would be disinclined to do their share of pro bono and volunteer
work. Perhaps this is true to a limited extent, particularly where the
member resides in a distant location. We think it is reasonable to believe,
however, that most lawyers who become members of a state bar will endeavor
to perform their share of these services.....
JUSTICE REHNQUIST, dissenting.
Today the Court holds that New Hampshire cannot decide that a New Hampshire lawyer should live in New Hampshire. This may not be surprising to those who view law as just another form of business frequently practiced across state lines by interchangeable actors; the Privileges and Immunities Clause of Art. IV, 2, has long been held to apply to States' attempts to discriminate against nonresidents who seek to ply their trade interstate. The decision will be surprising to many, however, because it so clearly disregards the fact that the practice of law is - almost by definition - fundamentally different from those other occupations that are practiced across state lines without significant deviation from State to State. The fact that each State is free, in a large number of areas, to establish independently of the other States its own laws for the governance of its citizens, is a fundamental precept of our Constitution that, I submit, is of equal stature with the need for the States to form a cohesive union. What is at issue here is New Hampshire's right to decide that those people who in many ways will intimately deal with New Hampshire's self-governance should reside within that State.....
Exploring Constitutional Conflicts