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In re Roberts

June 30, 1982



Before: ALDISERT, HUNTER, and SLOVITER, Circuit Judges


Per Curiam.

The question for decision in this appeal by an attorney denied admission to the bar of the United States District Court for the District of New Jersey is whether the district court's limitation of bar membership to members of the New Jersey bar violates the fifth amendment or federal statute.*fn1 Finding no constitutional or statutory violation, we affirm the order of the district court.


Appellant, Julian J. Roberts, applied for admission to practice before the District Court for the District of New Jersey. He also submitted an affidavit stating that he had been admitted to the New York State bar, the United States Tax Court, and the United States District Courts for the Eastern and Southern Districts of New York, and that he has not been disbarred or suspended from practice in any court. He also indicated that he received an L.L.B. degree from "an approved law school" in 1938, received an L.L.M. degree in taxation from Rutgers University School of Law in 1950, and has taught law at a New Jersey college. Roberts indicated that he desired to specialize in federal tax practice and offered to limit his practice before the court to federal tax cases.

Roberts requested the court to "change or ignore" its New Jersey bar requirement, maintaining that his qualifications "substantially exceed the restricted qualifications" contained in Rule 4B. He argued that the court's application of the rule to him would be unconstitutional and that the exemption from state bar membership for patent attorneys (Rule 4E) and attorneys representing the United States (Rule 4F) should be also allowed attorneys wishing to specialize in federal taxation or any branch of federal law. The district court denied Roberts' application.


Roberts claims that he has a constitutional right to be admitted to the bar of the district court because the record below is barren of evidence that would tend to show that he is morally or professionally unfit to practice law. Insofar as Rule 4B stands in the way of his admission, Roberts claims that it violates the Due Process Clause of the United States Constitution.*fn2

To invoke the protections of the fifth amendment, a litigant must first establish that the individual interest asserted is encompassed within its terms. Olegario v. United States, 629 F.2d 204, 223 (2d Cir. 1980). See Board of Regents v. Roth, 408 U.S. 564, 570, 571, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Attwell v. Nichols, 608 F.2d 228, 230 (5th Cir. 1979), cert. denied, 446 U.S. 955, 100 S. Ct. 2924, 64 L. Ed. 2d 813 (1980). The amendment protects property interests created and defined by independent sources such as statutes, legal rules, or mutually explicit understandings, but it does not create property interests of its own force.See Leis v. Flynt, 439 U.S. 438, 441, 442, 58 L. Ed. 2d 717, 99 S. Ct. 698 (1979); Board of Regents v. Roth, 408 U.S. at 577. Roberts does not cite any rule or statute, nor does he refer to any mutually explicit understanding, that would support his claim of denial of a property right to practice law in the district court. Nor can we conclude that application of Rule 4 deprives appellant of a liberty interest protected by the fifth amendment. See Board of Regents v. Roth, 408 U.S. at 575; Attwell v. Nichols, 608 F.2d at 230.

Appellant next contends that Rule 4B as applied to him violates his right to equal protection of the laws. Roberts notes that Rules 4E and 4F permit admission of attorneys who are not members of the New Jersey bar who limit their practice to cases arising solely under the patent laws of the United States; and attorneys who represent the United States. He argues that these exemptions from the state bar requirement must be extended to any attorney admitted to another federal district court who limits his practice to a specialized branch of federal law.

Although the fifth amendment contains no equal protection clause, the Due Process Clause forbids discrimination in a similar manner as the fourteenth amendment and analysis of equal protection claims is often the same under both. See Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 48 L. Ed. 2d 495, 96 S. Ct. 1895 (1975); Buckley v. Valeo, 424 U.S. 1, 93, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 638, 43 L. Ed. 2d 514, 95 S. Ct. 1225 n.2 (1975). In the context of the attorney admission qualifications in this case, since no impairment of a fundamental right*fn3 or classification based on a suspect criterion is involved, any requirement for admission will be upheld that is rationally related to the applicant's fitness to practice law in the court where he seeks admission. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 1 L. Ed. 2d 796, 77 S. Ct. 752 (1957): Murphy v. State Bd. of Law Exam. for Com. of Pa., 429 F. Supp. 16, 18 (E.D. Pa. 1977); Ricci v. State Bd. of Law Examiners, 427 F. Supp. at 618; Potter v. New Jersey Supreme Court, 403 F. Supp. 1036, 1037 (D.N.J. 1975) summ. aff'd., 546 F.2d 418 (3d Cir. 1976).

Roberts contends there is no rational relationship between membership in the New Jersey bar and fitness to practice federal tax law in the district court. We do not agree. Because there is no federal procedure in the district court for determining an applicant's fitness to practice law before it, the court may properly rely on prior admission to the bar of the supreme court of the state in which the district court sits.Counsel appointed to represent the district court points out also that tying district court admission to state bar membership tends to protect the interests ofthe public. For example, when a choice of either a federal or a state forum is available in a particular case an attorney admitted only to the federal court may choose that forum solely for that reason, possibly disregarding the interests of his client. Moreover, issues of state law are often dispositive in federal tax cases, further supporting the application of the state bar requirement to lawyers specializing in federal taxation.

We believe that the exemptions extended to certain patent lawyers and lawyers representing the United States and its agencies, but withheld from federal tax practitioners, are based on reasonable distinctions related to the court's interest in ensuring the competence of counsel appearing before it.Attorneys admitted to practice before the patent office must pass a uniform, national examination.This procedure serves as an adequate substitute for state examination for determining fitness to practice in this limited area of federal law. There is no similar uniform screening procedure for federal taxation specialists and New Jersey is among the many states that recognizes patent law but not federal law as an area of specialization. In the case of counsel representing the United States, the court's interest in ensuring competence of lawyers appearing before it is satisfied by its reliance on the ...

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