Supreme Court of NH v. Piper

Article IV's Privileges and Immunities Clause promotes interstate harmony and a national economic union by requiring States generally to afford nonresidents substantial equality in important economic pursuits. The Court's precedents recognize the pursuit of a common calling as among the Clause's most fundamental protections, even though purely recreational activities, such as elk hunting, need not receive the same protection.

Practicing law is important to commercial intercourse and the national economy. Lawyers also serve a broader public function: nonresident counsel may represent clients pressing unpopular federal claims, and in some circumstances such representation may be essential to vindicating federal rights. Those economic and noncommercial functions make the opportunity to practice law sufficiently important to the Union to qualify as a protected privilege.

New Hampshire argued that lawyers are officers of the court who exercise state power and are intertwined with the administration of justice. The Court rejected that premise. Under In re Griffiths, lawyers make their own professional decisions, operate their own practices, collect their own fees, and do not hold offices involving state policy or uniquely governmental responsibility.

A State may reserve core political functions, such as voting and holding elective office, to residents because those functions define the State as a separate political community. But merely being licensed as a lawyer does not make a person a state official or a formulator of government policy. Thus, the State's authority to regulate bar qualifications, recognized in Leis v. Flynt, did not authorize a blanket exclusion of otherwise qualified nonresidents.

The Privileges and Immunities Clause does not prohibit every distinction between residents and nonresidents. A State may discriminate only when it has a substantial reason for doing so and when its means bear a close or substantial relationship to that reason. In assessing that fit, the Court may consider whether less restrictive alternatives could adequately serve the State's interests.

New Hampshire's concern that nonresident lawyers would be less familiar with local rules and procedures was unsupported and poorly matched to a residency requirement. Lawyers who expect to have a meaningful New Hampshire practice have professional incentives to learn local law, and the State could use less restrictive measures, such as training or practice-skills requirements. The rule was also underinclusive because lawyers who later moved away could retain their New Hampshire bar memberships.

The Court found no reason to assume that nonresident lawyers would behave less ethically. A lawyer's professional reputation supplies incentives for ethical conduct wherever the lawyer practices, and New Hampshire retained authority to discipline all of its bar members regardless of residence.

The Court acknowledged that distant nonresident lawyers could sometimes be unavailable for unscheduled court proceedings. But a blanket exclusion was unnecessary. Lawyers willing to take the New Hampshire bar would often live nearby, and courts could require local counsel or otherwise ensure availability in particular cases where distance created a genuine problem.

The asserted concern that nonresidents would not perform enough pro bono or volunteer work likewise did not justify exclusion. Most lawyers admitted to a state bar have professional reasons to contribute to that bar's community, and New Hampshire could directly require indigent representation or formal legal-aid participation. Economic protectionism for resident lawyers, moreover, would be precisely the kind of discrimination the Clause was designed to prevent.