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NAAMJP Asks 9th Circuit Judicial Council to Follow the ABA and Adopt Reciprocal Bar Admission for All Sister-State Attorneys

The NAAMJP has petitioned the Ninth Circuit Judicial Council on October 12, 2009 to review all federal district court “local” rules, and to follow the ABA’s recommendation for reciprocity.
This Honorable Judicial Council has a mandatory duty to periodically review the District Court “local” rules; and it is authorized to abrogate any “local” rule in its circuit that contradicts 28 U.S.C. §§ 2071 or 2072. 28 U.S.C. § 332 (d)(4) provides:

Each judicial council shall periodically review the rules which
are prescribed under section 2071 of this title by district courts within its
circuit for consistency with rules prescribed under section 2072 of this title.
Each council may modify or abrogate any such rule found inconsistent in the
course of such a review.

The Reporter comments specify there is no such thing as a rule becoming sacrosanct from passing prior review.

Below is a graphic representation of bar admission based on either national rules [FRAP 46, Supreme Court Rule (5)] or laws enacted by Congress [5 U.S.C. § 500]. All sister-state attorneys are entitled to practice before these federal courts. The national Rules are approved by Congress.

admission on motion

Below is a graphic representation of the federal district court “local” bar admission Rules.

admission on motion

District Court “local” rules in Pennsylvania, Ohio, Tennessee, and Missouri are divided. Some mandating forum State bar membership and others provide full reciprocity. This federal inconsistency demonstrates forum State bar membership is not necessary.

Below is a graphic representation of the federal district court “local” bar admission rules when the U.S. government is representing itself.

admission on motion

28 U.S.C. § 2071. Rule-Making Power Generally, in pertinent part provides:

(a) …Such (local) rules shall be consistent with Acts of Congress and rules of
practice and procedure prescribed under section 2072 of this title.

28 U.S.C. § 2072. Rules of procedure and evidence; power to prescribe, provides:

(b) Such (local) rules shall not abridge, enlarge or modify any substantive
right.

These U.S. District Court “local” general bar admission rules violate both of these statutory standards. First, the “local” attorney admission rules are not consistent with the national attorney admission rules as is required by 28 U.S.C. § 2071(a). Rules prescribed under 28 U.S.C. § 2072 are approved by Congress. Congress has authorized every State-licensed attorney to obtain reciprocal bar admission and practice before the U.S. Courts of Appeals (FRAP 46), federal administrative agencies (5 U.S.C. § 500), and in the U.S. Supreme Court (Rule 5) there is only a three year experience requirement. All sister-state attorneys are presumed equal.

Second, the local rules further trespass 28 U.S.C. § 2072(b) because they enlarge the privileges of forum State attorneys and they modify and abridge the rights of non-forum State attorneys.

The Judicial Council standard of review of these local rules is not rational basis. The Judicial Council heightened scrutiny standard of review is set forth in 28 U.S.C. § 2071(a) and § 2072(b). Congress, in revising the Rules Enabling Act in 1988, has decreed local Rules shall not favor any person or group.

Case law from over twenty years ago concludes forum State admission is necessary because the federal district court does not have discipline apparatus, and thus must rely on the forum State. This rationale, however, has been rejected by the Supreme Court. It has repeatedly held it will not presume that any attorney will violate his professional obligations, or not familiarize himself or herself with local law. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985); Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1987)(holding admission on motion is a constitutionally protected privilege and immunity). The High Court has further squarely held difficulties in policing a nation-wide bar does not justify discrimination in bar admission. Barnard v. Thorstenn, 489 U.S. 546, 556-57 (1989). More specifically, there is also no reason to speculate any State will shirk its duty to investigate and discipline its attorneys. States today generally claim jurisdiction to discipline any attorney living or working in the State regardless of where he or she is licensed.

According to the ABA, experienced attorneys should not have to take another Sate bar exam to practice in the federal district courts. Federal practice and procedure are supposed to be uniform and guided by federal law. U.S. District Courts have exclusive jurisdiction over many areas of federal practice, such as patents, trademarks, copyright, securities, and bankruptcy. As implied in the ABA’s MacCrate report, bar exams do not measure nine out of 10 fundamental lawyering skills. As to the one skill it does test, Dr. Geoff Norman has written it is almost impossible to get essay graders to agree with each other. If federal district courts grant general bar admission privileges to novice forum State attorneys then general bar admission should be granted to experienced sister-state attorneys.

Permanent Link: NAAMJP Asks 9th Circuit Judicial Council to Follow the ABA and Adopt Reciprocal Bar Admission for All Sister-State Attorneys



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