No. 17-409 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF MULTIJURISDICTION PRACTICE, et al., Petitioners, v. BERYL A. HOWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Respondent. --------------------------------- --------------------------------- On Petition For Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit --------------------------------- --------------------------------- BRIEF OF AMICUS CURIAE ASSOCIATION OF PROFESSIONAL RESPONSIBILITY LAWYERS IN SUPPORT OF PETITION --------------------------------- --------------------------------- WILLIAM T. BARKER, Counsel of Record DENTONS US LLP 233 S. Wacker Dr. #5900 Chicago IL 60606 (312) 876-8140 [email protected]Counsel for Amicus Curiae Association of Professional Responsibility Lawyers ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM
WILLIAM T. BARKER, Counsel of Record DENTONS US LLP 233 S. Wacker Dr. #5900 Chicago IL 60606 (312) 876-8140 [email protected] Counsel for Amicus Curiae Association of Professional Responsibility Lawyers
In Frazier v. Heebe, 482 U.S. 641, 649 (1987), this Court, in the exercise of its supervisory power, held that a New Orleans federal district court bar admis-sion rule was invalid because it “unnecessarily and ar-bitrarily discriminates against out-of-state attorneys.” The bar admission rules of the D.C. district court dis-criminate against lawyers from other jurisdictions by requiring them, but not D.C. lawyers, to have a princi-pal law office in a state where they are admitted to practice.
Did the courts below err by judging that discriminatory requirement by the equal-pro-tection rational-basis test instead of the more demanding test established by Frazier v. Heebe?
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TABLE OF CONTENTS
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Question Presented ............................................. i
Table of Contents ................................................. ii
Table of Authorities ............................................. iv
Statement of the Case ......................................... 3
Summary of Argument ........................................ 6
A. The courts below applied the wrong stand-ard to dismissal of the Complaint, because Frazier v. Heebe invalidates district court bar admission rules that exclude out-of-state lawyers when doing so is “unneces-sary and irrational” ................................... 8
1. This Court has consistently exercised its supervisory power to require that district court bar admission and exclu-sion decisions be based on actual needs of the administration of justice ............. 8
2. The established supervisory power standard demands more than a conceiv-able rational basis to support discrimi-nation against out-of-state lawyers in admission to a district court’s bar ......... 14
3. This Court should broadly apply the requirement for factual justification of restrictions on eligibility of lawyers for district court bar admission ........... 18
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TABLE OF CONTENTS – Continued
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B. Because the facts alleged here and those subject to judicial notice could show that the principal-office-location requirement is “unnecessary and irrational,” the case should be remanded for factual develop-ment ........................................................... 21
Charles W. Wolfram, Expanding State Jurisdic-tion To Regulate Out-Of-State Lawyers, 30 HOFSTRA L. REV. 1015 (2002) .................................. 25
D.C. BarRule XI .......................................................... 24
Gary A. Munnecke, Multijurisdictional Practice of Law: Recent Developments in the National Debate, 27 J. LEGAL PROF. 91, 101, 103-04 (2002) ......... 2
APRL is an organization whose membership en-compasses lawyers who provide services in all aspects of legal ethics and professional responsibility. Besides representing respondents in disciplinary matters, APRL lawyers also represent and advise lawyers on ethics and professional responsibility, risk manage-ment, legal malpractice, and the law of lawyering. APRL members also include academics and judges. APRL remains the largest organization of lawyers pri-marily representing other lawyers in disciplinary and other proceedings and advising lawyers on their pro-fessional responsibility obligations. It has more than 500 members.
APRL members are passionate about professional responsibility and share their experiences, insights and expertise. APRL marshals the talent, energy and perspectives of its members to bring about positive
1 No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution in-tended to fund the preparation or submission of this brief. No per-son other than amicus curiae, its members, or its counsel made a monetary contribution to its preparation or submission. Notice was given to counsel for the parties and their letters of consent have been filed with this Court.
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change in the areas of legal ethics and the law of law-yering. It also issues public statements and files ami-cus briefs.
The bar admission rule challenged here is said to be justified by the utility of local regulatory supervi-sion of lawyers eligible for admission. Issues relating to regulatory supervision are central to the concerns of most APRL members and an area in which APRL has special expertise.
APRL has long been concerned with multijurisdic-tional practice issues. In February, 2001, APRL sub-mitted a proposal to the American Bar Association Commission on Multijurisdictional Practice (“MJP Commission”) urging that “states establish a common, uniform system permitting the free movement of law-yers and the free trade in legal services across state lines, without derogating from the states’ legitimate and historic interests in regulating the legal profes-sion.” In March, 2002, APRL joined with the American Corporate Counsel Association, the National Organi-zation of Bar Counsel, and the ABA Section of Law Practice Management to submit to the MJP Commis-sion a “Common Sense Proposal” calling for rules by which states would, for many purposes, recognize the credentials of lawyers licensed in other states.2 APRL has long supported rules permitting lawyers to be ad-mitted on motion in jurisdictions where they are not
2 This proposal and its impact are described in Gary A. Munnecke, Multijurisdictional Practice of Law: Recent Develop-ments in the National Debate, 27 J. LEGAL PROF. 91, 101, 103-04 (2002).
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yet licensed. APRL members have taken active roles in implementing Model Rule 5.5 – the multijurisdictional practice rule – at the ABA level and in many of the 47 states that have adopted versions of it.
Just as importantly, APRL members are on the front lines in advising lawyers about the applicable rules for multijurisdictional practice generally, and the admissions rules in the various federal districts in par-ticular. They see first-hand the impact these rules and restrictions have on the ability of their lawyer-clients to practice across state and district lines, as is often required in order to fully service law clients in the 21st Century.
All of these experiences inform the positions APRL takes here.
This is a challenge to local rules of the United States District Court for the District of Columbia (“District Court”) restricting the eligibility of lawyers admitted elsewhere than D.C. to be admitted as mem-bers of the District Court’s bar.
The District Court’s Local Rule 83.8(a) provides that:
Admission to and continuing membership in the Bar of this Court are limited to:
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(1) attorneys who are active members in good standing in the District of Columbia bar; or
(2) attorneys who are active members in good standing of the Bar of any state in which they maintain their principal law office; or
(3) in-house attorneys who are active mem-bers in good standing of the Bar of any state and who are authorized to provide legal ad-vice in the state in which they are employed by their organizational client.3
Petitioner Marina L. Callaway is a lawyer admit-ted only in Illinois but whose principal law office is in California.4 Petitioner Patent Lawyer Doe is “a patent attorney in good standing” but his principal law office is in a state where he is not licensed.5 Petitioner Na-tional Association for the Advancement of Multijuris-dictional Practice seeks to represent lawyer members, including Callaway and Doe, who desire admission to the Bar of the District Court but are ineligible under Local Rule 83.8(a).6
Petitioners allege that Local Rule 83.8(a) runs afoul of the supervisory power rule this Court an-nounced in Frazier v. Heebe, 482 U.S. 641 (1987).7 The
D.C. Circuit disagreed. (A.7a n.2) That court also con-cluded that it did not have comparable supervisory power comparable of its own, and that the only other body with authority to modify or abrogate Local Rule 83.8(a) would be the circuit’s judicial council. (A.6a-7a)
The D.C. Circuit instead judged Local Rule 83.8(a)’s discrimination against out-of-state lawyers by the rational basis standard. (A.7a-8a) Under that standard, it found the discrimination permissible:
Here the Principal Law Office Provision ensures that attorneys who practice before the District Court – but who avoid supervision by the D.C. Bar Association – are subject to supervision by the state to which their prac-tice is most geographically proximate. The Principal Office Provision embodies a reason-able assumption: local licensing control is bet-ter positioned to facilitate training sessions, conduct monitoring programs, and field com-plaints from the public – all rational bases for the Local Rule.8 [A.8a-9a]
Besides alleging violation of Frazier v. Heebe, Peti-tioners allege that Local Rule 83.8(a)’s discrimination against non-D.C. attorneys is unjust in various ways.9 If Frazier v. Heebe is not violated, they seek to invoke
8 The D.C. Circuit further noted that “much more restrictive district court local rules have passed rational basis review in other circuits.” (A.9a, citing NAAMJP v. Simandle, 658 F. Appx. 127, 130 (3d Cir. 2016); NAAMJP v. Lynch, 826 F.3d 191, 195, 197 (4th Cir. 2016). 9 Amended Complaint ¶¶ 31-44.
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fresh exercise of this Court’s supervisory power to de-clare that rules discriminating against out-of-state lawyers are invalid if they are shown to be “unneces-sary and irrational,” as the rule at issue in Frazier v. Heebe was found to be.10 (Petition, 27-38)
Roughly 60% of the federal district courts have lo-cal rules that, like the rule here, discriminate against out-of-state lawyers.11
The issue here is whether the District Court’s dis-crimination against out-of-state lawyers can be up-held, as the courts below did, by conjuring up some plausible basis or whether, instead, there must be a factual assessment of the discrimination’s utility to the District Court’s administration of justice and the bur-den imposed on out-of-state lawyers. That question af-fects the validity of bar admission rules now in effect in most federal judicial districts.
This Court has utilized its supervisory power to require that district court bar admission and exclu-sion decisions be based on actual, rather than hypo-thetical, needs. In particular, Frazier v. Heebe held that a district court had no power to impose a requirement
10 Petitioners also make other constitutional and statutory arguments. APRL takes no position regarding those arguments. 11 http://www.msba.org/uploadedFiles/Member_Groups/Sections/ Litigation/USDCTMDSurvey0115.pdf.
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discriminating against out-of-state lawyers unless the utility of that requirement was supported by empirical evidence. A similar requirement should apply here.
Requiring factual justification of restrictions on lawyer eligibility for admission to a district court’s bar is well justified as a matter of policy, because such re-strictions limit clients’ ability to utilize the counsel of their choice, at least without incurring the extra ex-pense of finding and retaining compatible local coun-sel. In criminal cases, the Sixth Amendment right to counsel includes a qualified right to counsel of choice. While no equivalent right applies in civil cases, clients’ ability to utilize counsel of choice ought not to be lim-ited without a factually supported basis relevant to the administration of justice.
Between the allegations of the amended complaint and facts subject to judicial notice, factual develop-ment is required to determine whether the principal office location requirement is actually useful to the dis-trict court’s administration of justice and whether any such utility justifies the burden which the requirement imposes on lawyers and litigants. Because federal law and procedure are uniform nationally, there is little reason to question the competence of a lawyer (not ad-mitted locally) to practice in a district court. And the rule here recognizes that good standing in any state provides sufficient evidence of competence.
The discriminatory principal-office-location re-quirement is defended as facilitating regulatory super-vision of non-D.C. lawyers. But it is questionable
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whether there is any factual need for such facilitation, which roughly 40% of the district courts do not require. In general, good standing in a state bar should create a presumption of fitness to practice, absent some rea-son (such as a disciplinary record) to question that fit-ness. Moreover, lawyers are generally subject to discipline wherever they may practice, even if not ad-mitted there. And discipline by a jurisdiction where the lawyer is not admitted will generally be followed by re-ciprocal discipline by the jurisdiction(s) where the law-yer is admitted. Petitioners should be permitted to develop the facts which they claim will show that prin-cipal-office-location requirement is “unnecessary and irrational.”
A. The courts below applied the wrong stand-ard to dismissal of the Complaint, because Frazier v. Heebe invalidates district court bar admission rules that exclude out-of-state lawyers when doing so is “unneces-sary and irrational.”
1. This Court has consistently exercised its supervisory power to require that dis-trict court bar admission and exclusion decisions be based on actual needs of the administration of justice.
Attorneys are officers of the court before which they practice, and the court must have the authority to
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assure that they are competent and fit to practice be-fore it. Attorneys who are incompetent or unfit cannot be relied upon to provide the court with the assistance it needs to administer justice. Moreover, such attor-neys would create an unwarranted risk of injuring lit-igants, thereby obstructing the ability of the court to reach just results.
Accordingly, as this Court has long held, “a federal court has the power to control admission to its bar and to discipline attorneys who appear before it.”12 This power is “incidental to all Courts.”13 This authority has now been codified: “all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business.”14
This Court has exercised supervisory power to re-view the exercise of a district court’s authority over the attorneys practicing before it. In Theard v. United States,15 it vacated a district court’s permanent disbar-ment of an attorney that had been based on a similar disbarment by the Louisiana Supreme Court. The lat-ter disbarment, in 1954, was based on conduct in 1935,
although at the time of the fateful conduct he was concededly in a condition of mental irre-sponsibility so pronounced that for years he was in an insane asylum under judicial re-straint. The proceedings also establish that as
12 Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). 13 Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531 (1824). 14 28 U.S.C. § 2071(a). 15 Theard v. United States, 354 U.S. 278 (1957).
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an active practitioner for six years preceding disbarment, after recovering his capacity, in-cluding the argument of thirty-six cases be-fore the Louisiana Supreme Court and the Court of Appeals for the Parish of Orleans, no charge of misconduct or impropriety was brought against him.16
As this Court emphasized, “disbarment by federal courts does not automatically flow from disbarment by state courts,”17 and the district court had apparently believed itself bound. In vacating the disbarment, this Court focused the district court on what was actually necessary to the conduct of its business: “We do not think that ‘the principles of right and justice’ require a federal court to enforce disbarment of a man eighteen years after he had uttered a forgery when concededly he ‘was suffering under an exceedingly abnormal men-tal condition, some degree of insanity.’ ”18
In re Snyder19 reversed the Eighth Circuit’s sus-pension of a lawyer for a letter that court found disre-spectful. This Court concluded that:
The record indicates the Court of Appeals was concerned about the tone of the letter; pe-titioner concedes that the tone of his letter was “harsh,” and, indeed it can be read as ill-mannered. . . . However, even assuming that the letter exhibited an unlawyerlike rudeness,
16 354 U.S. at 280. 17 Id. at 282. 18 Id. 19 In re Snyder, 472 U.S. 634 (1985).
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a single incident of rudeness or lack of profes-sional courtesy – in this context – does not support a finding of contemptuous or contu-macious conduct, or a finding that a lawyer is “not presently fit to practice law in the federal courts.” Nor does it rise to the level of “conduct unbecoming a member of the bar” warranting suspension from practice.20
In Frazier v. Heebe,21 a case even more closely on point, this Court reversed a district court’s exclusion of a lawyer from its bar and articulated the standard ap-plicable to the sort of rules at issue here. The Eastern District of Louisiana rules limited admission to its bar to lawyers with offices or residences in Louisiana. Fra-zier was admitted in Louisiana, but his office and res-idence were in Mississippi. He sued challenging his exclusion as unconstitutional. After a trial, the district court upheld the rule and the Fifth Circuit affirmed.22 This Court did not reach the constitutional questions, instead relying on its supervisory power to hold that the district court lacked power to impose that qualifi-cation, because this Court found it “unnecessary and irrational,” a test which Local Rule 83.8(a) also fails in this case.23
20 Id. at 646-47. 21 Frazier v. Heebe, 482 U.S. 641 (1987). 22 Id. at 643-45. 23 Id. at 646.
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This Court explained the basis of its action:
[A] district court has discretion to adopt local rules that are necessary to carry out the con-duct of its business. This authority includes the regulation of admissions to its own bar. A district court’s discretion in promulgating lo-cal rules is not, however, without limits. This Court may exercise its inherent supervisory power to ensure that these local rules are con-sistent with “the principles of right and jus-tice.”. . . . Today we invoke our supervisory authority to prohibit arbitrary discrimination against members of the Louisiana Bar, resid-ing and having their office out-of-state, who are otherwise qualified to join the Bar of the Eastern District.24
In this Court’s view, there was no reason to believe that lawyers with offices and residences outside Loui-siana “are less competent than resident attorneys.”25 Nor could the rules be justified by any “alleged need for immediate availability of attorneys in some pro-ceedings.”26 Lawyers in Louisiana might be located very far from the district court, and the court had other means “to ensure prompt attendance at important con-ferences.”27 Accordingly, the residency requirement
24 Id. at 645-46 (emphasis added, citations and footnotes omitted). 25 Id. at 647. 26 Id. at 648. 27 Id. at 649.
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“unnecessarily and arbitrarily discriminates against out-of-state attorneys.”28
The local office requirement was similarly invalid:
Similarly, we find the in-state office require-ment unnecessary and irrational. First, the requirement is not imposed on in-state attor-neys. A resident lawyer is allowed to maintain his or her only office outside of Louisiana. A resident lawyer with an out-of-state office is equally as unavailable to the court as a non-resident lawyer with an out-of-state office. In addition, the mere fact that an attorney has an office in Louisiana surely does not warrant the assumption that he or she is more compe-tent than an out-of-state member of the state bar. Requiring petitioner to have a Louisiana address and telephone number, and an in-state answering service will not elevate his or her understanding of the local Rules. As the failure to require in-state attorneys to have an in-state office reveals, the location of a law-yer’s office simply has nothing to do with his or her intellectual ability or experience in liti-gating cases in Federal District Court.29
Nor did it matter that Frazier could have litigated particular cases pro hac vice, because, as this Court
28 Id. 29 Id. (emphasis added).
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noted, the terms of pro hac vice practice were less fa-vorable than practice as an admitted member of the district court’s bar.30
2. The established supervisory power stand-
ard demands more than a conceivable ra-tional basis to support discrimination against out-of-state lawyers in admission to a district court’s bar.
Because Local Rule 83.8(a) “neither burdens a fun-damental right nor targets a suspect class,” the D.C. Circuit applied the rational basis standard. (A.7a-8a) Under that standard, it reasoned that “a rule ‘comes . . . bearing a strong presumption of validity, and those attacking the rationality of the [rule] have the burden to negative every conceivable basis which might sup-port it.’ Accordingly, ‘[w]here there are plausible rea-sons for [the challenged rule], our inquiry is at an end.’ ” (A.7a-8a) That court rejected the contention that Frazier created or applied a more demanding standard. (A.7a n.2)
But this Court’s cases on federal court bar regula-tion call for a more demanding standard. Surely, one could conceive of a state of facts that would provide a rational basis for disbarring a lawyer who a state court had disbarred for forgery. Yet, rather than relying on “rationally conceivable . . . facts” to uphold the disbar-ment in Theard, this court directed consideration of ac-tual facts of the particular case to determine whether,
30 Id. at 650-51.
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under “the principles of right and justice” disbarment was actually appropriate.31
Similarly, in Frazier, this Court rejected exclusion of out-of-state residents in part because “[n]o empirical evidence was introduced at trial to demonstrate why this class of attorneys, although members of the Loui-siana Bar, should be excluded from the Eastern Dis-trict’s Bar.”32 The rational basis test does not require empirical evidence. As the D.C. Circuit correctly held, that test permits “plausible reasons” to sustain a chal-lenged discrimination, even if those reasons are unsup-ported by any evidence. (A.7a-8a)
Moreover, Frazier relied on Supreme Court of New Hampshire v. Piper.33 Frazier noted that Piper “re-jected the notion that nonresident attorneys should be presumed to be less competent or less available than resident attorneys” and held that “a State may dis-criminate against nonresident attorneys only where its reasons are substantial and the difference in treat-ment bears a close relationship to those reasons.”34 This analogy in Frazier also supports the conclusion that federal court bar regulations require more than a rationally conceivable basis.
Finally, this Court specifically declared that dis-crimination against admission of out-of-state lawyers
31 Theard, 354 U.S. at 282. 32 Frazier, 482 U.S. at 646-47. 33 Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). 34 Frazier, 482 U.S. at 647 n.7.
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was less justifiable in federal court than it would be in state court:
Rules that discriminate against nonresi-dent attorneys are even more difficult to jus-tify in the context of federal-court practice than they are in the area of state-court prac-tice, where laws and procedures may differ substantially from State to State. There is a growing body of specialized federal law and a more mobile federal bar, accompanied by an increased demand for specialized legal ser-vices regardless of state boundaries. The Court’s supervisory power over federal courts allows the Court to intervene to protect the integrity of the federal system, while its au-thority over state-court bars is limited to en-forcing federal constitutional requirements.35
Additionally, Frazier did not look merely at whether there was a rational basis for the discrimina-tion against out-of-state lawyers. Rather it found that discrimination invalid because “unnecessary and irra-tional.”36 At a minimum, evaluation of a bar admission rule discriminating against out-of-state lawyers must include consideration of whether actual facts show a genuine need for the rule in relation to the district court’s ability to conduct its business and in relation to
35 Id. 36 Frazier, 482 U.S at 646.
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the burden it imposes on out-of-state lawyers37 – i.e., that it is necessary and rational.
The D.C. Circuit denied that Frazier v. Heebe es-tablished a standard that it was obliged to apply. (A.7a n.2) It effectively treated that case as limited to forbid-ding application of the particular Louisiana rule that was before this Court. But this Court does not sit to correct individual injustices. It sits to establish princi-ples that should thereafter be applied by other courts. It was error for the D.C. Circuit to disregard the prin-ciples established by Frazier.
In Frazier, this Court recognized what APRL members advising lawyers attempting to practice across federal district lines have long known: blanket restrictions on allowing lawyers admitted in one fed-eral district to practice in another frustrate lawyers and their clients while serving no useful purpose. The free movement and ready communications that mod-ern technology provides make it even more important that lawyers be permitted to serve their clients wher-ever that service is needed – especially when state in-terests, such as knowledge of varying state procedures, are not implicated. The reality is that protectionist lo-cal rules like Local Rule 83.8(a) detract from lawyers’
37 There is no need here to consider how utility to the conduct of the district court’s business should be weighed against any bur-den on lawyers. The point is simply that Frazier does not allow the burden to be ignored. Trifling contributions to conduct of the district court’s business might not justify great burdens on law-yers.
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ability to serve clients in a national economy while do-ing nothing to protect the public or promote the integ-rity of the judicial system.
Application by the courts below of the rational ba-sis standard was improper. Only because evidence was unnecessary under the rational basis standard could the courts below dispose of this case on a motion to dis-miss. Because Frazier v. Heebe does require “empirical evidence,” dismissal was improper.
3. This Court should broadly apply the re-
quirement for factual justification of re-strictions on eligibility of lawyers for district court bar admission.
In NAAMJP v. Lynch,38 the Fourth Circuit held Frazier inapposite as involving residence-based dis-crimination, which that case (like this one) does not.39 But that court failed to consider the broader applica-bility of the principles announced pursuant to this Court’s supervisory authority. Under those principles, any discrimination against lawyers admitted in other states must be factually justified by its utility to the conduct of the district court’s business (which utility must be considered in relation to the burden the rule imposes on out-of-state attorneys) and must not be “unnecessary and irrational.”
38 NAAMJP v. Lynch, 826 F.3d 191 (4th Cir. 2016). 39 Id. at 195 n.6.
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Such a requirement is well justified. Restrictions on lawyer eligibility for admission to a district court’s bar tend to restrict the ability of clients to utilize cho-sen counsel if that counsel is not eligible. In criminal cases, a defendant’s Sixth Amendment right to counsel includes a qualified right to counsel of choice.40 “Fur-thermore, ‘ “[a] defendant’s right to the counsel of his choice includes the right to have an out-of-state lawyer admitted pro hac vice.” ’ ”41
While no equivalent constitutional right to coun-sel of choice applies in civil cases, it must be remem-bered that both the right to bring and the right to defend civil cases are constitutionally protected under the right to petition for redress of grievances.42 Counsel is critical to effective exercise of the rights to bring and defend civil litigation, and a litigant’s ability to utilize counsel of choice ought not to be needlessly restricted.
To be sure, admission into a state bar or the bar of another federal court does not guarantee the right to practice in a federal district court. “Federal courts may set reasonable standards of admission, independent of
40 United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (“an element of [the Sixth Amendment] right is the right of a de-fendant who does not require appointed counsel to choose who will represent him”). 41 United States v. Gonzalez-Lopez, 399 F.3d 924, 929 (8th Cir. 2005), aff ’d, 548 U.S. 140 (2006) (quoting United States v. Ries, 100 F.3d 1469, 1471 (9th Cir. 1996)). 42 NAACP v. Button, 371 U.S. 415, 444 (1963); Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 741 (1983).
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the requirements established by coequal courts.”43 Nor is there any constitutional right to admission pro hac vice.44
But some circuits have recognized principles in re-garding pro hac vice admission which deserve recogni-tion under the supervisory power rule of Frazier v. Heebe. “At a minimum, a court’s decision to deny pro hac vice admission must be based on criteria reasona-bly related to promoting the administration of jus-tice.”45
And, despite the lack of any absolute right of an out-of-state lawyer to be admitted, the Ninth Circuit has reasoned that
[a]dmission to the state bar is the essential determinant of professional ethics and legal competence. The substantive knowledge re-quired to practice in federal court is generally the same throughout the country. Since 1938, the federal courts have been engaged in the task of applying a uniform body of procedure and evidence; federal statutes are applicable in all jurisdictions. As a consequence, attor-neys throughout the country are aware of the nature and extent of the relevant law, and there is little reason for a district court to test substantive knowledge on the part of lawyers admitted in other jurisdictions. Similarly, eth-ical doubts are best resolved through state bar
43 Zambrano v. Tustin, 885 F.2d 1473, 1483 (9th Cir. 1989). 44 Leis v. Flynt, 439 U.S. 438, 443 (1979). 45 In re United States, 791 F.3d 945, 957 (9th Cir. 2015).
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proceedings. “Admission to a state bar creates a presumption of good moral character that cannot be overcome at the whims of the Dis-trict Court.”46
Of course, a district court need not blindly defer (in determining a lawyer’s competence or fitness to practice before it) to the fact that the lawyer is cur-rently in good standing in some state bar. But, under Frazier v. Heebe, additional requirements must actu-ally make a meaningful contribution to establishing such competence or fitness, a contribution sufficient to justify any burden imposed on lawyers subjected to those requirements.
B. Because the facts alleged here and those sub-
ject to judicial notice could show that the principal-office-location requirement is “un-necessary and irrational,” the case should be remanded for factual development.
Local Rule 83.8(a) limits eligibility of non-D.C. attorneys to those whose principal law office is located in a state where they are admitted. While that rule implicitly concedes the competence of all attorneys admitted by any state, the principal-office-location requirement is said to be justified as providing im-proved supervision by lawyer regulators. (A.8a-9a) But approximately 40% of the district courts admit all sister-state attorneys in good standing (absent some
46 Zambrano, 885 F.2d at 1483; (quoting In re Evans, 524 F.2d 1004, 1007 (5th Cir. 1975)).
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individualized reason to deny admission).47 If other district courts function easily without some equivalent of the principal-office-location requirement, that sug-gests that this requirement may be “unnecessary and irrational” in D.C.
Additionally, the District Court does not impose the principal-office-location requirement on all non-D.C. lawyers it admits. It admits “in-house attorneys who are active members in good standing of the Bar of any state and who are authorized to provide legal ad-vice in the state in which they are employed by their organizational client.”48 That suggests that, even if some requirement beyond good standing in some state is justified, any justifying purposes might be ade-quately served if outside lawyers were similarly re-quired only to be authorized to provide whatever legal services they offer where their principal offices are lo-cated (e.g., because their practices were authorized by federal law49 or permitted by the local analogue to ABA Model Rule of Professional Conduct 5.5(c)-(d).
Moreover, the basis asserted for the principal of-fice location requirement overlooks or ignores signifi-cant facts. When imposed by Maryland, a similar requirement was said to promote “effective regulation
47 http://www.msba.org/uploadedFiles/Member_Groups/Sections/ Litigation/USDCTMDSurvey0115.pdf. 48 D.D.C.R. 83.8(a)(3), quoted A.15a-16a. 49 Sperry v. Florida, 373 U.S. 379, 384-85 (1963) (patent office practice); Surrick v. Killion, 449 F.3d 520, 529-34 (3rd Cir. 2006) (practice before a federal court to whose bar the lawyer is admit-ted); In re Desilets, 291 F.3d 925, 930 (6th Cir. 2002) (same).
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of the conduct of that attorney, including any necessary discipline. Where the principal law office is not located where the attorney is a member of the bar, essential public oversight of the attorney’s practice is dimin-ished.”50 But that reasoning mistakenly assumed that only a state in which a lawyer is licensed may disci-pline that lawyer.
Maryland itself rejected that proposition. Rule 8.5(b) of the Maryland Rules of Professional Conduct provides that:
A lawyer not admitted by the Court of Ap-peals to practice in this State is subject to the disciplinary authority of this State for conduct that constitutes a violation of these Rules and that:
(1) involves the practice of law in this State by that lawyer, or
(2) involves that lawyer holding himself or herself out as practicing law in this State. . . . 51
50 In re Carlton, 708 F. Supp. 2d 524, 527 (D. Md. 2010). 51 MD. RULES, tit. 19, Rule 19-308.5(b). Indeed, the Maryland court regularly disciplines non-Maryland attorneys. Attorney Grievance Comm’n v. Barneys, 805 A.2d 1040 (Md. 2002) (disbar-ring nonadmitted lawyer for unauthorized practice of law and other violations); id. at 1047 (collecting prior cases disciplining nonadmitted lawyers). Other states have also disciplined out-of-state lawyers. E.g., Iowa Sup. Ct. Discip. Bd. v. Carpenter, 781 N.W.2d 263 (Iowa 2010) (suspension for neglect, trust account vi-olations, and other misconduct); Ky. Bar v. Yocum, 294 S.W.3d 437 (Ky. 2009) (suspension for filing false documents and other mis-conduct).
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This rule is based on a widely adopted ABA model.52 So virtually all states assert the authority to discipline nonadmitted lawyers. Moreover, some juris-dictions began imposing such discipline before adop-tion of this provision of the rules,53 so even the few (including D.C.) that have not adopted such language might also do that.54 With many APRL members rep-resenting lawyers in disciplinary proceedings nation-wide, APRL knows that these proceedings recurrently involve locally non-admitted lawyers. Notably, the D.C. Circuit did not rely on any supposed inability of D.C. to discipline errant lawyers practicing before the Dis-trict Court if those lawyers were not admitted in D.C. (though it did suggest that such lawyers might other-wise “avoid supervision by the D.C. Bar Association” (A.8a)).
Of course, standing alone, discipline by a state where a lawyer was not licensed to practice might have limited effect. But states regularly employ a process of
52 MODEL RULES OF PROFESSIONAL CONDUCT, R. 8.5(a) (2015); similar provisions for discipline of lawyers not admitted in the state have been adopted in all but a few states. http://www.american bar.org/content/dam/aba/administrative/professional_responsibility/ mrpc_8_5.authcheckdam.pdf 53 E.g., Kennedy v. Bar Ass’n, 561 A.2d 200 (Md. 1989). 54 D.C. Bar Rule XI asserts disciplinary jurisdiction over non-D.C. lawyers in various contexts, but its terms would not currently cover a non-D.C. lawyer admitted generally (rather than pro hac vice) in the District Court. Factual development of this case could consider the impact of any limits on the disciplinary jurisdiction of the D.C. courts.
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reciprocal discipline analogous to the process crafted by this Court in Selling v. Redford.55
As explained by Prof. Wolfram:
In most states, regulations can now be found under which a locally admitted lawyer must promptly report to the state’s bar disciplinary authorities any imposition of professional dis-cipline in any other state in which the lawyer is admitted. That is supplemented by system-atic reporting by jurisdictions when they im-pose discipline, including to a national data bank maintained by the ABA. Once reported, or otherwise discovered by local bar discipli-nary authorities, a process of imposing recip-rocal discipline will be inaugurated. Again, the implicit policy is that professional disci-pline in another state – including, of course, such discipline based on acts that occurred outside the home state – is also a matter of po-tential disciplinary concern in each other state in which the lawyer is admitted.56
Procedures for reciprocal discipline generally fol-low an ABA model rule, itself modeled on Selling.57
55 Selling v. Redford, 243 U.S. 46 (1917). 56 Charles W. Wolfram, Expanding State Jurisdiction To Reg-ulate Out-Of-State Lawyers, 30 HOFSTRA L. REV. 1015, 1034-35 (2002) (emphasis added, footnotes omitted). 57 MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT, R. 22.
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This process normally leads to discipline equivalent to that imposed in the original disciplining jurisdiction.58
Thus, contrary to the stated basis underlying the Maryland district court’s principal-office-location re-quirement, a lawyer is subject to local disciplinary su-pervision wherever the lawyer provides legal services or holds out as able to practice law, particularly if the lawyer does so in Maryland. Discipline by such a juris-diction would normally be followed by reciprocal disci-pline in whatever jurisdictions have licensed the lawyer.
As already noted, Respondents do not argue that non-D.C. lawyers practicing before the District Court would be immune to discipline by the D.C. court if their conduct warranted that. Rather, Respondents contend that having a principal law office in a jurisdiction where the lawyer is admitted facilitates “training ses-sions, . . . monitoring programs, and field[ing] com-plaints from the public.” (A.8a)
While lawyer regulators commonly require law-yers to attend continuing education courses accredited by the regulators and regulatory personnel sometimes speak at such courses, in the experience of APRL’s members, regulators generally do not provide “training sessions” of their own, and those that do so offer them in competition with other accredited providers of con-tinuing legal education courses. The relevance of such
58 Id. R. 22(4); In re Barneys, 861 A.2d 1270 (D.C. 2004) (re-ciprocal discipline based on Attorney Grievance Comm’n v. Bar-neys, supra).
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“training sessions” in any jurisdictions that may pro-vide them is further undercut by the fact that the D.C. Office of Disciplinary Counsel itself neither provides such sessions nor requires its members to attend any continuing legal education courses (except that there is a mandatory CLE course for all new D.C. Bar mem-bers, sometimes taught by Disciplinary Counsel). The D.C. Bar does provide voluntary CLE courses.
In the experience of APRL’s members, monitoring programs are rarely, if ever, conducted by regulators except in connection with discipline, diversion pro-grams regarding complaints against lawyers, or condi-tional admission. So far as APRL is aware, neither regulatory training sessions nor regulatory monitoring affect any significant number of lawyers, so they would contribute little or nothing to maintaining or assuring the fitness of lawyers practicing before the District Court.
All lawyer regulators field complaints from the public. Such complaints are commonly directed to reg-ulators located where the alleged misconduct occurred; those regulators typically could themselves address such complaints even if the lawyer is not locally admit-ted, but they can and do also notify regulators in those jurisdictions where such a lawyer is admitted. If the misconduct occurred in D.C., location of the lawyer’s principal office for the practice of law in a state where the lawyer is admitted would contribute little to the ability of regulators in that state to investigate what occurred in D.C. Thus, it is quite doubtful that the lo-cation of the lawyer’s principal office for the practice of
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law in such a jurisdiction would make much difference to the conduct of the district court’s business.
Indeed, after admission to practice, only a small minority of lawyers have any interaction with lawyer regulatory authorities beyond routine annual registra-tion, certification of compliance with mandatory con-tinuing legal education requirements, routine trust account audits, and, occasionally, response to initial in-quiries from regulators regarding complaints submit-ted to those regulators.
Certiorari should be granted to determine the proper standard for judging validity of district court bar admission rules (found in roughly 60% of the dis-tricts) that discriminate against out-of-state lawyers.
Respectfully submitted,
WILLIAM T. BARKER Counsel of Record DENTONS US LLP 233 S. Wacker Dr. #5900 Chicago IL 60606 (312) 876-8140 [email protected] Counsel for Amicus Curiae Association of Professional Responsibility Lawyers
