Increasing Access to Federal Courts: Petition to Reform CA Bar Membership Requirement

February 06, 2018 | By TIMOTHY SNOWBALL

No matter how long you have been a practicing attorney, many states require becoming a member of that specific state’s bar in order to represent clients or conduct business in federal district courts within the state’s geographic boundaries. Before 1938, federal courts applied local procedural rules, and many claims heard in federal courts in diversity actions were based on state law. But this is no longer the case. The vast majority of cases heard in federal district courts have their basis in federal law. Restrictive rules requiring state bar membership in local district courts no longer makes sense.

A striking example of this protectionist rule is the U.S. District Court for the Northern District of California. California does not grant reciprocity to allow attorneys from other jurisdictions to be admitted to the California Bar on motion. Hence any attorney wishing to be admitted to the California Bar, for the purposes of practice within the state or just to conduct business in one of the state’s federal district courts, is forced to sit for the notoriously onerous California Bar Examination. When considered in the context of the composition of most modern federal litigation, California’s lack of reciprocity with other states, and the notoriously difficult California bar exam, this requirement is revealed as both arbitrary and antiquated.

Having to take the California Bar Exam imposes heavy burdens of time and money on attorneys who may have already been practicing for decades. In addition, once admitted, a lawyer must continue to be an active dues-paying member of the California Bar to remain a member of the Bar of any district court in California, even when that lawyer does not regularly practice in California. These burdens are wholly out of proportion to any possible benefit to parties or any district court. Legal efforts to challenge the legality of other district court bar admission requirements have not been successful.

The petition we signed onto today takes a different approach. Spearheaded by Professor Alan Morrison of The George Washington University Law School, this petition asks the District Court for the Northern District of California to amend its local rule to eliminate the California Bar admission requirement as a matter of policy, not law. Policy justifications include the current rule not being reasonably necessary, California Bar admission requirements being overly burdensome, pro hac vice admission not being a feasible alternative, and that the requested rule change not adversely affecting attorney discipline. Proposed petitioners include individual attorneys licensed to practice law in other states and/or the District of Columbia, who would like to apply for admission to the District Court for the Northern District of California, but who contend that there is no reason for them to have to be admitted to the California Bar to practice in federal court. Some of the other petitioners are organizations whose employees or members include attorneys who are similarly situated to the individual attorney petitioners, while others are attorneys who are admitted to practice in the Court, but who support the elimination of the California bar membership requirement as unnecessary.