May 23, 2018

PLF to 9th Circuit Judicial Council: “End protectionist policy for lawyers.”

By Timothy R. Snowball Attorney

Back in February I wrote about the petition that Pacific Legal Foundation (PLF) signed onto with almost a dozen other ideologically diverse legal organizations and attorneys (protectionism, at least in regards to the legal profession, appears to traverse ideological lines), asking the U.S. District Court for the Northern District of California to amend its local rule to eliminate its protectionist California Bar admission requirement.

No matter how long you have been a practicing attorney, many jurisdictions, like the Northern District of California, require that you become a member of their local state bar in order to represent clients or conduct business in that court. 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, so this requirement of local affiliation may have made more sense. But not anymore. The vast majority of modern cases heard in federal district courts have their basis in federal and not state law.

The situation in California is even more egregious, as the state 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.

Our petition took 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.

In a terse letter composed of only three sentences with no further explanation, on April 3, 2018, the Chief Judge of the Northern District, Judge Phyllis J. Hamilton, related that the Court’s local Rules Committee had voted to deny our petition, concluding with: “Thank you for your interest in our local rules.”

But that is not the end of the story. Today, PLF and its allies petitioned Chief Judge Sidney R. Thomas of the U.S. Court of Appeals for the Ninth Circuit, and Chair of the Judicial Council of the Ninth Circuit, requesting that the Council review the unsupported decision of the Northern District’s Rules Committee.

We will continue to update this story as it develops.

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