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Lacavera, who has been waiting for a green card, said she started her challenge back when she was a first-year lawyer at White & Case.
“I took the patent bar exam and I understood I was going to be given limited recognition,” she recalled. “In essence, I asked myself: What is limited recognition? It’s the equivalent of no recognition. I could work for a fully registered patent practitioner and assist him without limited recognition. That’s what they gave me.”
And there were other requirements. Each time she filed a patent application with the PTO, she said, she had to file evidence of her “limited recognition.”
“It just seemed like I was doing double duty,” said Lacavera, who has pursued her case pro se. “The immigration office approved my admission for purposes of being a patent attorney and the patent office decided it wanted a second crack at that.”
In her suit and now in her Supreme Court petition, Lacavera v. Dudas, 06-338, Lacavera argued that the PTO’s authority to govern the recognition and conduct of attorneys is expressly limited by statute to considering whether the attorney has “good moral character” and the “necessary qualifications” to practice patent law before the office. There is nothing in the statute that says immigration status is a qualification, she added.
The PTO’s own rules show that citizenship and immigration status are not necessary qualifications, she noted. The PTO’s rules, for example, permit full registration of Canadian citizens residing in Canada, practicing Canadian patent law and having no immigration status in the United States. The Canadian practitioner is not required to pass the patent registration exam.
In the lower court, the PTO argued that nonimmigrant status is inconsistent with registration because it is limited in time and scope while registration is not. Without limited recognition, the office said, it would be forced “to use its investigative power to determine whether petitioner’s representations to clients and the [PTO] are in concert with her visa restrictions.”
The Federal Circuit sided with the PTO. Although it noted the statute was silent on whether the PTO may consider visa restrictions in determining recognition, the court said it was “reasonable for the PTO to interpret legal authority to render service as being a necessary qualification.”
In the high court, Lacavera argues again that the PTO has exceeded its statutory authority and has violated nonimmigrant aliens’ right to equal protection.
The PTO rule challenged by Lacavera has drawn attention from international as well as patent lawyers. Last summer, the section on international law of the American Bar Association drafted proposed recommendations urging PTO registration of any attorney who meets the statutory requirements, without regard to citizenship, residency or visa status.
The section’s report, not yet formally adopted by the ABA, said of the PTO restriction: “No other federal agency or court has adopted a similar policy or practice applicable to persons qualified or permitted to appear. This unique rule is a ‘sore thumb’ sticking out from the generally hospitable description of the U.S. market for legal services in the [World Trade Organization's General Agreement on Trade in Services].”
STATE CHALLENGE
New Orleans’ Maw and fellow United Kingdom citizen Caroline Wallace are petitioners in Wallace v. Calogero, 05-1645, and they are represented in the high court by S. William Livingston, a partner at Washington’s Covington & Burling. In the companion case, Leclerc v. Webb, 06-11, a Canadian and three French lawyers are represented by Jeffrey Sarles, co-chairman of the Supreme Court and appellate practice group of Chicago-based Mayer, Brown, Rowe & Maw.
Karen Leclerc and her fellow petitioners are now doing death penalty and other types of work, according to Sarles.
“Our petitioners are all here legally on visas lasting six to 10 years or longer,” he said.
Like Maw and Wallace, they cannot practice in Louisiana because of Louisiana Supreme Court Rule XVII Section 3(B) which provides that every applicant for admission to the bar must be “a citizen of the United States or a resident alien thereof.” The Louisiana Supreme Court enforces that rule, and in 2002 it reversed its decades-old, prior interpretation and declared that “resident alien” referred only to aliens who were entitled to permanent residence in the United States.
In the high court, Livingston and Sarles argue that the Fifth Circuit erred in failing to apply strict scrutiny to Rule 3(B). They rely on In re Griffiths, 413 U.S. 717 (1973), an equal protection challenge in which the high court struck down a Connecticut bar rule that prevented all aliens from practicing law. They contend that the Supreme Court has repeatedly held that state laws that discriminate solely against subclassifications of lawfully admitted aliens also must meet strict scrutiny review.
They also argue that federal immigration law, which makes clear that an H-1B visa holder is admitted to the United States for the purpose of engaging in a “specialty occupation,” pre-empts state licensing regimes that bar those visa holders from obtaining a license.
And Sarles warns, “If a state can forbid nonimmigrant alien lawyers from obtaining a license to practice law, it can forbid nonimmigrant aliens from obtaining licenses to engage in other lines of work as well.”
NO BURDEN
But Harry Rosenberg of New Orleans’ Phelps Dunbar, who represents the state Supreme Court, said that the Fifth Circuit was correct to apply less than strict scrutiny review to the rule because the rule neither burdens a fundamental right nor targets a suspect class.
The rule “rationally relates to Louisiana’s duty to monitor attorneys and, when necessary, to take action vis-a-vis the attorneys,” he said.
“Visa holders who leave the U.S. are beyond the reach of the judicial system.”
There is also no supremacy clause preclusion of state action, he argues, because the federal Immigration and Nationality Act specifically contemplates the states exercising their licensing functions.
Livingston and Sarles contend that Louisiana stands alone among the states with its licensing ban on nonimmigrant attorneys.
If it doesn’t stand alone, it is most likely in the minority, noted Northwestern’s Silver, adding that states have varying requirements for the licensing of foreign lawyers.
She said that Louisiana’s rule is “odd” because of the state’s unique civil and common law system.
The justification for the restrictions by Louisiana and the PTO, she explained, is to make sure that the lawyer is actually able physically to represent a party, and that if that’s not guaranteed through immigration status, it could be problematic. “This is really an ethical issue to me,” she said. “I would think the ethical rules do a fine job of regulating that issue. I’m a little surprised they feel they need help.”
Away from the rarified atmosphere of Supreme Court arguments, Maw deals with the practical impact of the Louisiana rule.
“It’s very frustrating, in part because I did go to a Louisiana law school, and the need [for lawyers] is so great here,” she explained.
“It means a stretch. I’m practicing in Mississippi and working on Louisiana cases as a paralegal, although our caseload is almost 10-1 Louisiana.”
Marcia Coyle is a reporter with The National Law Journal, a Recorder affiliate based in New York City.
