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Judges and Judiciary,
Ethics/Professional Responsibility,
State Bar & Bar Associations

Feb. 9, 2018

California has an anachronistic bar membership requirement

The Golden State should reform unnecessary, out-of-date and overly protectionist bar admission policies in federal district courts.

No matter how long you have been a practicing attorney, many federal district courts still require you to become a member of the state bar of the state in which the court resides. The justification for this requirement was the composition of the court's dockets, which in the early part of the 20th century was dominated by state law claims in diversity. Before 1938, federal courts also applied local procedural rules.

But this is no longer the case.

The vast majority of cases heard in federal district courts have their basis in federal law. First, federal courts apply federal procedural rules, whether civil, criminal, bankruptcy, or evidence, as well as the court's local rules, to the claims before them. On the substantive side, criminal cases are governed by federal criminal statutes and the Federal Rules of Criminal Procedure and the U.S. Constitution. Most laws at issue in bankruptcy and admiralty proceedings are also federal. On the civil side, cases fall into two major categories: cases arising under federal law, for which state law is only rarely even a small part of the governing authority, and diversity cases, in which state law is the basis for the underlying claim, but which may originate from either applicable state.

In short, requiring that an attorney be a member of a particular state bar is inconsistent with the federal nature of case in modern federal courts. So how do we explain the promulgation of such requirements?

Protectionism

A striking example of this type of protectionist rule is the U.S. District Court for the Northern District of California. California is especially egregious, because it 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 exam. 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. So a diverse group of attorneys and organizations who wished to see the rule reformed took a different route.

A diverse group of legal organizations and attorneys, including the Pacific Legal Foundation and ACLU, sent a letter to the chief judge, and filed a petition with the District Court for the Northern District of California on Feb. 6 requesting the court amend its local rule to eliminate the California bar admission requirement as a matter of policy, not law. Policy justifications for changing the rule include it's not being reasonably necessary, California bar admission requirements being overly burdensome, pro hac vice admission not being a feasible alternative, and the requested rule change not having the potential to adversely affect attorney discipline.

Spearheaded by Professor Alan Morrison of the George Washington University Law School in Washington, D.C., this petition was signed onto by 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 a 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.

Hopefully this effort will be the opening salvo in an effort to reform these unnecessary, out-of-date and overly protectionist bar admission policies in federal district courts.

#346020

Ben Armistead

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