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In re Sackman

Decided: August 12, 1982.


On petition for review of the constitutionality of Rule 1:21-1(a) of the New Jersey Court Rules.

For dismissal -- Chief Justice Wilentz and Justices Pashman, Clifford, Handler, Pollock and O'Hern. Opposed -- none.

Per Curiam

[90 NJ Page 522] This ethics case presents a challenge both to the constitutionality and the wisdom of part of R. 1:21-1(a). The challenged portion requires out-of-state attorneys to maintain their principal

office in New Jersey. Attorneys who live in New Jersey need only a "bona fide" office. We do not reach the constitutional question. Exercising our plenary power over the practice of law, we have decided that henceforth all licensed New Jersey attorneys shall be treated alike, whether they live here or not. The only requirement for both, in order to practice in New Jersey, shall be that they maintain a bona fide office here.

Petitioner, Jay Mark Sackman, is a resident of New York City and is licensed to practice law in New York and New Jersey. He is the sole proprietor of the law firm of Jay Mark Sackman, and maintains four offices for the practice of law: in New York City and Westbury, New York, and in Hackensack and Freehold, New Jersey. An appreciable portion of his practice is devoted to New Jersey clients, many of whom are participants in a prepaid legal services plan for which petitioner provides legal representation. The plan is available to employees for whom Local 1115 Joint Board is the collective bargaining representative.*fn1 Eligible members include residents of New York and New Jersey who work in one of the two states. In addition to members of this plan, Sackman represents some other New Jersey clients.

Mr. Sackman staffs his New Jersey offices with two attorneys licensed to practice law in New Jersey who are domiciliaries of this State. They provide the majority of the services in the New Jersey offices. The work is reviewed by petitioner, who performs most of his administrative and supervisory work in his New York City office. He spends at least one day a week in his New Jersey offices and his Long Island office,*fn2 and estimates

that he devotes approximately 25 percent of his total time to clients who either live or work in New Jersey.

On November 28, 1978, Sackman received a letter from the New Jersey Board of Bar Examiners reminding him that as a non-domiciliary of New Jersey, he was not eligible to practice law in New Jersey and could be disbarred under R. 1:21-1(a) if one of his New Jersey offices was not his principal office. This was followed by a more expansive letter of inquiry into Sackman's multi-state practice from the Division of Ethics and Professional Services. Petitioner filed an action against the New Jersey Supreme Court and the Administrative Director of the Courts in Superior Court, Chancery Division, Bergen County, on March 20, 1979, challenging the constitutionality of the rule. He alleged that the rule violates the Privileges and Immunities Clause, Art. IV, § 2; the Commerce Clause, Art. I, § 8, cl. 3; and the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution.

Under an agreement between the parties by which a record was established for review, the constitutional issues were placed directly before this Court. The petitioner executed an affidavit in which he set forth an account of the facts relevant to the controversy; the Attorney General did not contest them. This Court granted petition to review the validity of R. 1:21-1(a) on June 10, 1981. 91 N.J. 236 (1981). On September 2, 1981, Leslie Ann Chen, temporarily licensed to practice law in New Jersey, was granted permission to intervene in the matter.*fn3

Under rules that have since been revised, Ms. Chen had sought full admission to the New Jersey bar despite her inability to comply with the domicile or principal office requirements of R. 1:21-1(a).

The challenged rule was adopted by this Court pursuant to its power to promulgate rules for admission to the New Jersey bar. N.J.Const. (1947), Art. VI, § II, par. 3. The rule provides in part:

(a) Qualifications. No person shall practice law in this State unless he is an attorney, holding a plenary license to practice in this State, is in good standing, and is either domiciled and maintains a bona fide office for the practice of law in this State or, if not domiciled in this State, maintains in this State his principal office for the practice of law . . .

For the purpose of this section, a bona fide office is a place where the attorney or a responsible person acting on his behalf can be reached in person and by telephone during normal business hours. A bona fide office is more than a maildrop, a summer home which is unattended during a substantial portion of the year, or an answering service unrelated to a place where business is conducted. [ R. 1:21-1(a)].

It thus establishes a more stringent requirement for non-domiciliaries practicing in New Jersey than for domiciliaries. Petitioner, a non-domiciliary, does not satisfy the rule: his principal office is in New York.

The rule has been amended several times and has been the subject of much debate. It represents the continuing effort to determine where the public interest lies when non-domiciliaries seek to practice law. If such practice poses a risk to the public, nowhere is it greater than in New Jersey. Located ...

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