PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALBERT H. PARNELL,

Plaintiff-Appellant,

v.

No. 96-1245

THE SUPREME COURT OF APPEALS OF

WEST VIRGINIA; WEST VIRGINIA

STATE BAR,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

William M. Kidd, Senior District Judge.

(CA-95-108-1)

Argued: October 31, 1996

Decided: April 14, 1997

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by published opinion. Judge Michael wrote the opinion, in

which Judge Williams and Judge Motz joined.

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COUNSEL

ARGUED: Michael Edward Hutchins, HAWKINS & PARNELL,

Atlanta, Georgia, for Appellant. John M. Hedges, BYRNE &

HEDGES, Morgantown, West Virginia, for Appellee Court of

Appeals; Robert Mason Steptoe, Jr., STEPTOE & JOHNSON,

Clarksburg, West Virginia, for Appellee State Bar. ON BRIEF:
Thomas G. Tidwell, HAWKINS & PARNELL, Atlanta, Georgia, for

Appellant. Lori A. Dawkins, STEPTOE & JOHNSON, Clarksburg,

West Virginia, for Appellee State Bar.

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OPINION

MICHAEL, Circuit Judge:

A lawyer appearing pro hac vice in West Virginia must be sponsored by a member of that state's bar who practices law on a daily

basis from an office located in West Virginia. Albert H. Parnell, a

Georgia lawyer who is also licensed in West Virginia, appeals the district court's decision that West Virginia's in-state office requirement

for local counsel does not violate the Privileges and Immunities

Clause of the United States Constitution. We affirm.

I.

The Supreme Court of Appeals of West Virginia (West Virginia or

State Supreme Court) promulgates rules governing the practice of law

in that state. See W.Va. Const. art. 8,§ 3; W.Va. Code § 51-1-1a.

These rules are embodied in the State Supreme Court's Rules for

Admission to the Practice of Law (Practice Rules). See W.Va. Code

Ann. Ct. Rules (Michie 1997). The West Virginia State Bar, an

administrative agency of the court, see W.Va. Code § 51-1-4a(d),

from time to time makes recommendations to the court for amendments to the Practice Rules.1

This case stems from a 1995 amendment to West Virginia's Practice Rule for visiting lawyers, Rule 8.0, "Admission Pro Hac Vice."2

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1 "All persons practicing law" in West Virginia are required to be members of the State Bar. See W.Va. Code § 51-1-4a(d).

2 The Latin phrase "pro hac vice" means: "For this turn; for this one

particular occasion. For example, an out-of-state lawyer may be admitted

to practice in a local jurisdiction for one case only." Black's Law Dictionary 1212 (6th ed. 1990). We will use the Latin phrase because it is

widely understood and convenient shorthand.

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Prior to the amendment, the rule simply required the pro hac vice

applicant to "be associated with an active member in good standing

of the state bar, who shall be a responsible local attorney in the action

. . . ." This version of the rule raised questions about whether a member of the West Virginia bar whose office and principal place of practice was outside West Virginia could serve as a"responsible local

attorney" under Rule 8.0. As a result, on the motion of the West Virginia State Bar, the State Supreme Court on March 1, 1995, amended

Rule 8.0(c) to clarify who qualifies as a "responsible local attorney:"

"In order to be a `responsible local attorney' the local attorney must

maintain an actual physical office equipped to conduct the practice of

law in the State of West Virginia, which office is the primary location

from which the `responsible local attorney' practices law on a daily

basis." The State Supreme Court and the State Bar maintain that the

amendment is an appropriate exercise of the court's authority to regulate the practice of law by out-of-state lawyers not licensed in West

Virginia by requiring them to associate with local counsel who will

be accessible and meaningfully involved in a given case.

The 1995 amendment prevents Parnell from being a"responsible

local attorney," even though he is a member in good standing of the

West Virginia State Bar. Parnell's situation is as follows. He is a resident of Atlanta, Georgia, where he practices law as a partner at Hawkins & Parnell (formerly Freeman & Hawkins), a firm of over forty

lawyers. Parnell has been a member of the State Bar of Georgia since

1969, and he became a member of the West Virginia State Bar in

1989.

Parnell is widely known for his expertise in the defense of asbestos

personal injury cases. He has represented defendants in a number of

these cases in West Virginia, with several of them going to trial in

both state and federal court. In 1995 Parnell was representing three

defendants in an asbestos case in the Circuit Court of Monongalia

County, West Virginia, a state trial court. On August 17, 1995, purporting to be a responsible local attorney, he filed a motion to have

three other lawyers in his firm admitted pro hac vice in that case. In

his motion Parnell said that the three were "specialists in the area of

asbestos litigation." He later said that his clients wanted the three lawyers "to assist [him] in pretrial matters and at the trial of the [ ] case."

The state trial judge denied the motion to admit Parnell's colleagues

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pro hac vice on the ground that Parnell "does not meet the requirements to be a `responsible local attorney' as defined in Rule 8.0(c) [of

the Practice Rules]" because he does not have a West Virginia office

that is "the primary location from which he practices law on a daily

basis."

Parnell promptly filed a declaratory judgment action in the United

States District Court for the Northern District of West Virginia

against the West Virginia Supreme Court and the State Bar. Parnell

sought an order declaring the rule unconstitutional, arguing, among

other things, that Rule 8.0(c) is in effect a residency restriction that

violates the Privileges and Immunities Clause, U.S. Const. art. IV,

§ 2, cl. 1. After briefing and oral argument on the merits, the district

court rejected Parnell's argument and dismissed his complaint. See

Parnell v. Supreme Court of Appeals of West Virginia , 926 F. Supp.

570 (N.D. W. Va. 1996). Parnell now appeals.

II.

Parnell argues that sponsoring pro hac vice applications "is a necessary and fundamental part of practicing law." Brief for Appellant at

6-7. According to Parnell, Practice Rule 8.0(c)-- which requires him

to have a West Virginia office for the daily practice of law in order

to sponsor such applications in the courts of that state -- is in effect

a residency requirement that violates the Privileges and Immunities

Clause.

Article IV, § 2, cl. 1 of the United States Constitution provides that

the "Citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States." The primary purpose of

this clause "was to help fuse into one Nation a collection of independent, sovereign States. . . . In line with this underlying purpose, it was

long ago decided 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 Citizens of that State." Toomer v.

Witsell, 334 U.S. 385, 395-96 (1948). Although the clause uses only

the term "Citizens," it is also read in most cases to cover residency.

See Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64 (1988).

The United States Supreme Court has developed a two-step analysis for determining whether a residency-based restriction of an activ-

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ity offends privileges and immunities protections. First, "the activity

in question must be `sufficiently basic to the livelihood of the Nation

as to fall within the purview of the Privileges and Immunities

Clause.'" Id. at 64 (quoting United Bldg. & Constr. Trades Council

v. Mayor and Council of Camden, 465 U.S. 208, 216 (1984)). In other

words, a "fundamental right" must be implicated: the "out-of-state

resident's interest [in the activity restricted] in another State [must be]

sufficiently `fundamental' to the promotion of interstate harmony so

as to fall within the purview of the [Clause]." United Bldg. & Constr.

Trades Council, 465 U.S. at 218 (quoting Baldwin v. Montana Fish

& Game Comm'n, 436 U.S. 371, 388 (1978)). Second, "if the challenged restriction deprives nonresidents of a protected privilege," the

restriction is invalidated only if it "is not closely related to the

advancement of a substantial state interest." Friedman, 487 U.S. at 64

(citing Supreme Court of New Hampshire v. Piper , 470 U.S. 274, 284

(1985)).

Of course, the privileges and immunities analysis is only applied

if the restriction is based on residency. We turn first to that threshold

issue.

A.

The West Virginia Supreme Court and the State Bar argue that the

privileges and immunities analysis has no bearing on this case

because Practice Rule 8.0(c) does not impose a residency requirement. They emphasize that the rule does not say a member of the

West Virginia bar must be a state resident to serve as local counsel.

But Parnell maintains that the rule in effect has a residency requirement because local counsel must have a West Virginia office from

which he practices law on a daily basis.3 Although Parnell offered no

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3 Parnell says that West Virginia's intent to impose a residency requirement for local counsel is confirmed by a comment made by the Chief

Justice of the West Virginia Supreme Court at a State Bar meeting

shortly after Rule 8.0(c) was amended in 1995. The Chief Justice said

that one of the reasons for the amendment was "to level the playing

field." We expect the Chief Justice simply made this comment in recognition of the fact that a number of other states expressly condition pro

hac vice admission upon association with an in-state lawyer who resides

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evidence to the district court on the subject, he makes the sweeping

claim in his brief that "nonresident West Virginia bar members do not

and cannot practice law on a daily basis from an office in West Virginia." Brief for Appellant at 9. However, in its opinion the district

court noted that "numerous nonresident West Virginia bar members

can and do practice law on a daily basis from offices located in West

Virginia." Parnell, 926 F. Supp. at 572. This statement was apparently based on the district judge's own experience over many years

on both the state and federal bench.

West Virginia is bordered by five states and its northern and eastern panhandles are narrow. A look at a regional map reveals that

numerous locations in West Virginia are within commuting distance

from places in Virginia, Maryland, Pennsylvania, Ohio, and Kentucky. We do not know exactly how many nonresident lawyers commute into West Virginia each day to work, but we are convinced that

West Virginia's configuration and location prevent Rule 8.0(c) from

imposing a residency restriction. We therefore agree with the district

court that Rule 8.0(c) contains "no prohibition against any nonresident West Virginia bar member practicing law on a daily basis in

West Virginia and thus qualifying as a responsible local attorney." Id.

Moreover, the daily practice requirement applies to both resident and

nonresident bar members in the same way. A State Bar member who

resides in West Virginia but who practices law on a daily basis in an

office outside the state does not qualify as local counsel under the

rule.

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in or has an office in the forum state. See, e.g., Ark. Court Rules Governing Admission to the Bar, Rule 14 (residency requirement); Ga. Bar Rule

1-203 (same); Iowa Court Rule 113 (same); Kan. Stat. Ann. § 7-104

(same); Neb. Rev. Stat. § 7-103 (same); Nev. Rule of Court 10-2 (same);

N.C. Gen. Stat. § 84-4.1 (same); S.D. Codified Laws § 16-18-2 (same);

Tenn. Court Rules Ann. 19 (same); Wyo. Court Rules Ann. 104 (same);

Del. Supreme Court Rule 71 (in-state office requirement); Mo. Supreme

Court Rule 9.03 (same); N.J. Rules of Court, Rule 1:21-2 (same). The

Chief Justice also said that a purpose of the amendment was "to ensure

the accountability of lawyers [licensed in other states] who practice in

West Virginia."

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Because Rule 8.0(c) accords equal treatment to nonresidents and

residents and because nonresidents can qualify as local counsel under

the rule, there is no residency classification that requires scrutiny

under the Privileges and Immunities Clause.

B.

Even if we assume that Practice Rule 8.0(c) amounts to an in-state

residency requirement, the privileges and immunities protections still

do not apply to the activity (sponsoring pro hac vice applicants) regulated by the rule. We reach this conclusion by examining the first

prong of the privileges and immunities test, which centers on whether

a fundamental right is implicated.

We recognize, of course, that the United States Supreme Court has

held that the opportunity to practice law is a fundamental right under

the Privileges and Immunities Clause because of its importance to the

national economy and to the vindication of noncommercial rights.

Piper, 470 U.S. at 281-82. This broad holding, however, does not

answer the much narrower question of whether sponsorship of pro hac

vice applicants is a fundamental component of the right to practice

law.

The West Virginia Supreme Court and the State Bar contend that

this narrow question is covered by Leis v. Flynt , 439 U.S. 438 (1979).

In Leis v. Flynt the Supreme Court held that a state court could deny,

without a hearing, a lawyer's motion to appear pro hac vice. Id. at

443-44. This is because the interest in appearing pro hac vice is not

a "cognizable property [right] within the terms of the Fourteenth

Amendment." Id. at 443. Thus, whether to grant a visiting lawyer pro

hac vice admission is "wholly [ ] discretionary" with the forum state.

Id. at 444 n.5. Parnell responds that West Virginia's Leis v. Flynt

argument -- that pro hac vice admission is a discretionary privilege

-- has nothing to do with his situation. Parnell has not been denied

pro hac vice admission. Instead, he says that he has been denied the

opportunity to sponsor pro hac vice applicants, an opportunity he says

is necessary to the exercise of his right to practice law.

We understand the distinction between sponsorship and admission,

but we do not think the distinction saves Parnell's claim. We believe

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that Leis v. Flynt's holding that practicing pro hac vice is not a Fourteenth Amendment property right offers some support for the proposition that sponsoring pro hac vice applicants is not a fundamental

component of the right to practice law for purposes of the Privileges

and Immunities Clause. In any event, Parnell's own circumstance

confirms for us that sponsorship of pro hac vice applicants is not a

fundamental component of the right to practice law. As a member of

the West Virginia bar Parnell remains quite free to perform the essential tasks of a litigator in his area of specialty. When one of his clients

is sued in West Virginia, he can appear as lead counsel or co-counsel,

answer a complaint, make dispositive or procedural motions, take or

defend against discovery, try the case, and participate freely in any

appeal. He can do this even though he is a resident of Georgia, where

he is also a member of the bar and where his forty-person law firm

has its offices. Thus, West Virginia's rule governing who may sponsor pro hac vice applications has not stripped Parnell of his fundamental right to practice law.4

Because we find that no fundamental right is at stake, we need not

decide whether Rule 8.0(c) satisfies the "substantial state interest"

prong of the privileges and immunities analysis. 5

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4 None of the Supreme Court cases cited by Parnell go so far as to suggest that making pro hac vice motions is a fundamental component of the

right to practice law. These cases include Barnard v. Thorstenn, 489 U.S.

546 (1989) (rule requiring applicants (i) to live in Virgin Islands for one

year prior to applying for bar admission and (ii) to state their intent to

remain in Virgin Islands violated the Privileges and Immunities Clause);

Friedman, 487 U.S. at 59 (rule requiring Virginia residency as a condition for reciprocal, examination free, admission to Virginia bar by lawyer

licensed in another state violated the Privileges and Immunities Clause);

Piper, 470 U.S. at 274 (rule limiting bar admission to state residents violated Privileges and Immunities Clause). Moreover, all of these cases

recognize the importance of not interfering with the ability of a state to

regulate those who practice law within its borders.

5 In his complaint Parnell alleges that Rule 8.0(c) places an undue burden on interstate commerce in violation of the Commerce Clause, U.S.

Const. art. I, § 8, cl. 3. The district court found that the Commerce

Clause claim was abandoned because it was not briefed or argued. See

Parnell, 926 F. Supp. at 571 n.1. Although the issue has been briefed on

appeal to us, we decline to consider it because it was abandoned when

the merits of the case were litigated in district court. See Bakker v.

Grutman, 942 F.2d 236, 242 (4th Cir. 1991).

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III.

The judgment of the district court is

AFFIRMED.

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