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U.S. District Court rule for Maryland survives constitutional challenge

A federal appeals court on Friday upheld the constitutionality of the U.S. District Court for Maryland’s refusal to admit to its bar attorneys who maintain offices in the state but are not licensed in Maryland.

In its ruling, the 4th U.S. Circuit Court of Appeals said the district court’s prohibition serves the legitimate goal of encouraging Maryland bar membership for attorneys who intend to practice regularly in the federal courts in Baltimore and Greenbelt as evidenced by having an office in the state.

The 4th Circuit’s 3-0 decision affirmed the U.S. District Court in Baltimore’s dismissal of a challenge to the restriction by a lawyers’ group opposed to local restrictions on the practice of law before federal courts. The Los Angeles-based National Association for the Advancement of Multijurisdiction Practice had argued that the Maryland federal court’s limitation, known as Rule 701, violates the constitutional rights of free speech and equal protection.

But the 4th Circuit said the First Amendment right to free speech does not apply to the U.S. district court’s requirement, which imposes no restriction on what attorneys can say publicly but merely regulates the legal profession.

“The rule does not compel attorneys to speak or regulate speech based on its content,” Judge John A. Gibney wrote for the 4th Circuit.

“Neither does the rule restrict attorneys from speaking,” added Gibney, a U.S. District judge for Eastern Virginia, sitting on the circuit court by designation. “Applying the appropriate test, Rule 701 qualifies as a generally applicable licensing provision.”

With regard to equal protection, the 4th Circuit said the rule need only have a rational basis to pass constitutional muster because it neither infringes upon a fundament right, like free speech, nor disadvantages a disparate minority, such as blacks.

Rule 701 has the rational goal of encouraging Maryland bar membership for lawyers who have offices in Maryland and practice in Maryland’s federal courts, the 4th Circuit said.

The appellate court also roundly rejected as “bold – if not borderline frivolous” the NAAMJP’s argument that the district court’s rule violates the Constitution’s Supremacy Clause, which provides that federal laws trump non-conforming state statutes.

“NAAMJP focuses on the fact that Rule 701 incorporates Maryland state licensing requirements, but ignores the fact that nothing prohibits federal law from incorporating state standards,” Gibney wrote. “Rule 701’s use of these state standards, however, does not transform Rule 701 into a state law.”

In addition, the association argued in vain that Rule 701 violates the federal Rules Enabling Act.

The 4th Circuit said the act gives U.S. district courts broad authority to “prescribe rules for the conduct of their business.”

“In enacting Rule 701, the district court prescribed a rule ‘for the conduct of [its] business,’ denoting which attorneys may practice before it,” Gibney wrote. “The rule does not violate any acts of Congress or any federal ‘rules of practice and procedure’” adopted by the Supreme Court, he added.

In its lawsuit filed July 1, 2014, the NAAMJP named as defendants the U.S. attorney general and every judge on the U.S. District Court for Maryland. These judges recused themselves from hearing the case so U.S. District Judge Robert J. Conrad Jr. of Western North Carolina was called in to preside over the association’s complaint.

Conrad dismissed the lawsuit on Aug. 18, 2015, prompting NAAMJP to appeal.

Joseph Robert Giannini, a NAAMJP director who argued the association’s appeal, did not return telephone messages seeking comment Friday.

Judges Henry F. Floyd and Stephanie D. Thacker of the 4th Circuit joined Gibney’s published opinion in National Association for the Advancement of Multijurisdiction Practice et al. v. Loretta Lynch et al., No 15-1982.