Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.


The Nationwide Practice of Law—New Lawsuit Seeks to Expand General Admission to Federal Courts

A recently filed lawsuit seeks to loosen limits on California attorneys’ ability to seek general admission to practice in many federal district courts nationwide.  The impact on the legal profession could be extreme.

The lawsuit challenges common local federal court admission “reciprocity rules,” as well as other federal court local rules limiting general bar admission only to attorneys licensed to practice in the state where the federal court sits.  If successful, the lawsuit could pave the way for California attorneys to pursue admission to practice in any federal court nationwide, including federal district courts, appellate courts, and federal administrative agencies, without having to seek admission pro hac vice on a case-by-case basis or otherwise comply with current admission rules.

But the reverse is also true.  If the lawsuit succeeds, any attorney admitted to any state bar might apply for general admission to practice in California federal courts, arguably eroding California’s ability to regulate the profession of law and to set higher standards for admission to practice here.  For example, an attorney admitted to the South Dakota state bar might apply for admission to practice in a California federal court and could maintain a full-time federal court practice here, but could not practice in a California state court.

The Los Angeles-based National Association for the Advancement of Multijurisdictional Practice (“NAAMJ”) filed the lawsuit in December in the U.S. District Court for the District of Columbia.  The lawsuit claims the U.S. Supreme Court has mandated that state bar-admitted attorneys have a right to seek admission to the bar of any federal court nationwide.  Complaint ¶ 1, Civil Action No. 1:13-CV-1963 TFH (D.D.C.), citing Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988) and Frazier v. Heebe, Chief Judge, United States District Court for the Eastern District of Louisiana et. al, 482 U.S. 641, 649 (1987).

Under District of Columbia federal district court local rules, admission is restricted.  Only attorneys admitted to practice to the District of Columbia Bar, or admitted to practice in another state and in one of 25 district courts granting reciprocal admission to attorneys admitted to the District of Columbia federal bar, can apply for admission.  DDC LCvR 83.8; see DDC LCvR 83.2(c)-(d) (limiting practice of non-members).  This type of admission requirement has been called a “you get reciprocity if we get reciprocity” restraint.  Complaint ¶ 9.  California federal courts are not among the 25 districts granted reciprocity admission in the District of Columbia.  See http://www.dcd.uscourts.gov/dcd/reciprocal-admission.

California federal courts, such as the Southern District of California, limit general admission to members in good standing of the State Bar of California, but permit pro hac vice admission to members in good standing of the bar of any other state or federal court.  SDCA Civil Rule 83.3(c)(4).  Pro hac vice admission is not the same as general admission or “admission upon motion,” and thus it is not sufficient to confer reciprocity admission in many other federal courts.

For years, restrictive bar admission rules have earned jabs from some organizations.  Some claim geographic restrictions on practice, such as the federal district court local rules at issue and even state-by-state bar admission rules, restrict mobility and competition among lawyers.  Others argue that states and the federal district courts within them have the right to set their own standards of professional practice.  States must regulate the practice of law as a profession, just like states regulate the practice of medical doctors and other professionals.  Otherwise, the legal profession would become a vocation open to anyone who graduates law school anywhere in the country.

While bar admission and reciprocity rules can be complex and varying, the issues related to a nationwide practice of law in federal court can be phrased simply: If an attorney is a member in good standing of any state bar with a few years of experience, does that attorney then have the right to seek admission to any federal court?  Is he or she universally qualified to practice?

The NAAMJ Complaint seems to argue both answers are “yes”:

“The United States Supreme Court has held ‘the location of a lawyer’s office simply has nothing to do with his or her intellectual ability or experience in litigating cases in Federal District Court.’  Frazier v. Heebe,  Chief Judge, United States District Court for the Eastern District of Louisiana et al., 482 U.S. 641, 649 (1987).”

Complaint ¶ 1, Civil Action No. 1:13-CV-1963 TFH.

California and other states’ practitioners will watch this lawsuit to see whether it gets any traction in the District of Columbia.  However, the thought of a truly national practice of law is interesting.  In theory, the system advocated by the lawsuit could promote “legal tourism” by luring out-of-state attorneys to take the easiest bar exam, pay the bar dues of that state, and then earn the right to practice in any federal court or federal administrative agency without taking another bar exam or being admitted to any other bar.  Yet many attorneys already have nationwide practices, because they are admitted to practice pro hac vice or otherwise to many different federal courts.

Regardless of the outcome of the lawsuit, unless federal courts take the extraordinary and unexpected step of adopting a truly uniform system of practice rules (by eliminating local and chambers’ rules), in-depth knowledge of local practice will remain important to success.  Regulating lawyers will remain critical to upholding the standards of our profession.  And frequent and personal interaction with the same judges and lawyers will remain critical to advancing civility among members of the bar.

–Erin P. Gibson, DLA Piper LLP (US)

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**