Sanders holds that local pro hac vice rules must yield to litigant's right to counsel

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A vindictive court passed a rule shortly before these civil rights lawyers were to appear. That rule got struck down.

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A vindictive court passed a rule shortly before these civil rights lawyers were to appear. That rule got struck down.

Petitions for writs of mandamus from the United States District Court for the Southern District of Mississippi, Dan M. Russell, Jr., J., and William Harold Cox, Chief Judge, to determine validity of District Court rule. The Court of Appeals, Dyer, Circuit Judge, held that District Court rule permitting pro hac vice appearance by out-of-state attorneys in nonfee generating civil rights cases only if attorney is nonresident, in only one case in any 12-Month period, and only if attorney has been admitted to state bar for at least 5 years unless federal district court of his home state admits Mississippi attorneys under more lenient rule contravened Congressional intent as embodied in civil rights acts, imposed unreasonable limits and was invalid.

[Note by Lawyerdude: The bar associations in the various states jostle for control of the individual lawyers. It reminds me of the lawyers who think of their clients as their property. Similarly the bar thinks of us lawyers as their property. They make deals, such as the reciprocity agreements and thereby trade in the in the “property” of our license. My California license would permit me to practice in Florida but for the spiteful denial of reciprocity by the California bar. I have said many times: our government takes away our rights and sells them back to us as licenses. The individual lawyer is punished by foreign bar associations for the malicious rules made by the corrupt bar association in his “home state”. Most lawyers have no interest in joining the bar of their home state; they are forced to join. Therefore it is unfair to punish the lawyer. This situation angers me. Also, the bar associations have assigned a state bar to be the watchdog of each lawyer. I resent being assigned a “home state”.

The state bar organizations battle each other using our rights as fodder. See here: the Mississippi bar is angered that some states like California don’t extend reciprocity. California is angry that all other state require their lawyers to be graduates of ABA schools. This folly is the product of robber baron Andrew Carnegie who was a tax cheat who spend tax money doing evil in order to keep the poor in their place. The poor were the plentiful labor for Carnegie’s steel mills.]

Jonathan Shapiro, Jackson, Miss., John H. Schafer, Washington, D.C., for James E. Sanders.

R. L. Goza, Canton, Miss., William A. Allain, Jackson, Miss., John C. Satterfield, Yazoo City, Miss., for Judge Dan M. Russell.

Melvyn Zarr, Jack Greenberg, New York City, Anthony G. Amsterdam, Philadelphia, Pa., Paul Brest and Marian E. Wright, Jackson, Miss., William T. Coleman, Jr., Philadelphia, Pa., for Joan Anderson and others.

Before JOHN R. BROWN, Chief Judge, DYER, Circuit Judge, and GARZA, District Judge.

We are called upon in these mandamus proceedings to determine the validity of the rule of the United States District Court for the Southern District of Mississippi limiting the pro hac vice appearance of out of state attorneys as

applied in non-fee generating civil rights cases. That rule, which was promulgated on September 26, 1967, [FN1] imposes three limitations upon such appearances:

FN1. Prior to September 26, 1967, pro hac vice admission to the District Court merely required that a member of the bar of that court move the admission of a non-resident attorney. 'Rule Regulating Admission of Attorneys,' July 10, 1962.

(1) A pro hac vice appearance by an attorney is permitted only if he is a nonresident of the State of Mississippi;

(2) A pro hac vice appearance by an attorney is permitted in only one case in any twelve month period and; *243 (3) A pro hac vice appearance by an attorney can be made only if he has been admitted to a state bar for at least five years, unless the federal

district court of his home state admits Mississippi attorneys under a more lenient rule, in which event the more lenient rule applies. See footnote 2.

1. Any attorney admitted to practice in a state other than Mississippi and not qualified to practice in the courts of Mississippi may be permitted by this Court be comity to appear and participate in the particular case, when introduced to the Court with such recommendation by an attorney in good standing at the bar of this Court; but, no nonresident attorney shall be thus admitted by comity to appear in more than one case in any calendar year, or within the space of twelve months; and no such attorney shall be thus permitted to appear in any case under this rule unless such attorney has been admitted to practice for at least five years before the Court of the state from which he or she comes, unless it be shown to this Court that the federal court of such state from which the attorney comes admits attorneys from Mississippi to practice by comity under a more favorable or relaxed rule, in which event such more relaxed rule will be applied by this Court.

3. No person not admitted to the bar of this Court, or expressly authorized by order of the Court to appear before the Court in any case shall participate in any manner or to any extent in any discovery proceeding for or as an attorney (or present any matter to the Court for an order); or affix his name or permit his name to be affixed to any motion or pleading in any case in this Court as attorney for any litigant; and any infraction or violation of this rule or any part thereof will be treated and considered by the Court as a direct contempt in the presence of the Court and summarily punished accordingly.

The Rule as to Nonresident Attorneys was applied to refuse admission pro hac vice in the District Court to Lawrence Aschenbrenner, an attorney employed full time by the Lawyers' Committee for Civil Rights Under Law, in a damage suit under 42 U.S.C.A. <section> 1983, because he had already appeared in one other case in the District Court within the preceding twelve months. Jonathan Shapiro, another Lawyers' Committee Attorney, was also prevented, by application of the Rule, from appearing pro hac vice in a similar suit, and Paul and Iris Brest, attorneys employed by the NAACP Legal Defense and Educational Fund were prevented from appearing pro hac vice in seven school desegregation suits. The applications of the latter three attorneys were denied because they were not 'nonresident attorneys.' The Rule, as interpreted by the respondent Judges and by the Jackson Division Attorneys' Comity Committee, [FN3] makes the pro hac vice privilege unavailable to attorneys temporarily residing in Mississippi, and those three attorneys had been residing in Mississippi for limited periods while working for their respective civil rights organizations.

FN3. On October 2, 1967, the District Court entered an order appointing an Attorneys' Committee for the Jackson Division to process applications of nonresident attorneys and to make findings and recommendations thereon.

[1] At the outset the respondents assert that this Court has no jurisdiction to entertain the petitions for mandamus because we have no supervisory power to question rules promulgated by a District Court, not inconsistent with, and adopted under authority of statute and the rules of the United States Supreme Court, [FN4] and in any event mandamus is not the proper remedy. These arguments are patently without merit. [Lawyerdude says: the following is a badly formed sentence. It is too long. It is convoluted:] If, and as we later make clear there is no if, the Rule is not 'consistent with Acts of Congress' because it has the effect of precluding nonresident attorneys from appearing in civil rights cases under the circumstances here shown, there is no doubt of our supervisory power by the grant of a writ of mandamus to prohibit the District Court from enforcing its rule. As the Supreme Court said in La Buy v. Howes Leather Co.,1957, 352 U.S. 249, 259-260, 77 S.Ct. 309, 315, 1 L.Ed.2d 290: 'We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here.' While sounding the usual caveat that mandamus is an extraordinary remedy to be used under exceptional circumstances lest it become a substitute for an appeal or interlocutory appeal, we echoed in In re Watkins, 5 Cir. 1959, 271 F.2d 771, 76 A.L.R.2d 1113, what had been said in La Buy and granted the writ, finding that the 'procedure (of referring the case to a special master) nullifies the right to an effective trial before a constitutional court.' Id. at 775. Finally, in considering the requirement of a local rule providing inter alia for the signature by a member of the bar of the Southern District of Mississippi on a removal petition under the Civil Rights Act, we said in a mandamus proceeding that 'such rules may not be allowed to operate in such a way as to abridge the right of any class of litigants to use the federal courts or to deny the Sixth Amendment right of criminal defendants to counsel of their own choice.' Lefton v. City of Hattiesburg, 5 Cir. 1964, 333 F.2d 280, 285; see also, 5 Cir. 1965, 348 F.2d 894.

FN4. Respondents cite no case law in support of their argument and seemingly rely on the text of the rules themselves: 28 U.S.C.A. section 2071, 'The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Act of Congress and rules of practice and procedure prescribed by the Supreme Court.' 28 U.S.C.A. <section> 2072, 'The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts and courts of appeals of the United States in civil actions, including admiralty and maritime cases, and appeals therein, and the practice and procedure in proceedings for the review by the courts of appeals of decisions of the Tax Court of the United States and for the judicial review or enforcement of orders of administrative agencies, boards, commissions, and officers.' Rule 83, Fed.R.Civ.P., 'Each district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the Supreme Court of the United States. In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.'

Substantial allegations were made in the petitions that the Rule affected fundamental rights and that its adoption was beyond the authority of the District Court. We do not doubt our power to grant the writ, nor that sound discretion dictates that the writ be granted.

[2] Turning to the Rule itself, the issue is a narrow one. A summary of what is and what is not involved in this case will put the question before us in better focus. The petitioners' position is simply that they have a federal right to retain counsel of their choice who are attorneys in good standing at their respective bars and are associated with locally-admitted counsel in non-fee generating school desegregation and civil rights cases in federal court. See Footnote 5.

Footnote 5: The limitation to non-fee generating cases does not preclude petitioners from seeking attorney fees in appropriate cases. The award of attorney's fees pursuant to Titles II and VII of the 1964 Civil Rights Act, 42 U.S.C.A. section 2000a-3(b), 2000e-5(k); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (U.S. March 18, 1968) is not in conflict with a policy of refusing to accept fees from clients. Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers; the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation. (Footnote omitted.)

On the showing made in this case the civil rights climate in Mississippi is not unlike that of Virginia. Furthermore, in damage cases brought by Negro plaintiffs against white defendants, the slight chance of contingent fee recovery does not suggest that economic benefits are or will be such as to outweigh, for appreciable numbers of Mississippi lawyers, their reluctance to become identified with the Negro civil rights effort. Under these circumstances it is imperative that a local rule not be applied in such a way as to abridge the right of civil rights litigants to use the federal court.

This case does not involve the right to general admission to a federal district court.

This case does not involve the right of attorneys to be admitted pro hac vice without association with locally admitted counsel.

Out of twenty- two hundred lawyers in Mississippi, only twelve are Negroes. Of course, all twelve are not always available. This is obviously an inadequate reservoir. Moreover, there is ample evidence in the record to demonstrate the burdens of counsel handling such cases, see Note, Attorneys: Interstate and Federal Practice, 80 Harv.L.Rev. 1711, 1722 (1967), as well as the petitioners' inability to obtain representation, which, parenthetically, is borne out by literally hundreds of civil rights cases that have come to us in which out of state lawyers have had the laboring oar. It is no overstatement that in Mississippi and the South generally Negroes with civil rights claims or defenses have often found securing representation difficult. Lefton v. City of Hattiesburg, supra. As the Supreme Court pointed out in N.A.A.C.P. v. Button, 371 U.S. 415, 443, 83 S.Ct. 328, 343, 9 L.Ed.2d 405.

FN5. The limitation to non-fee generating cases does not preclude petitioners from seeking attorney fees in appropriate cases. The award of attorney's fees pursuant to Titles II and VII of the 1964 Civil Rights Act, 42 U.S.C.A. section 2000a-3(b), 2000e-5(k); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (U.S. March 18, 1968) is not in conflict with a policy of refusing to accept fees from clients. Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers; the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation. (Footnote omitted.)

[3] As we said in limine, the district courts have broad discretion in prescribing requirements for admission to practice before them in most cases, 28 U.S.C.A. <section> 1654, but their rules must 'be consistent with Acts of Congress,' 28 U.S.C.A. <section> 2071.

In civil rights cases, however, Congress has directed the federal courts to use that combination of federal law, common law, and state law as will be best adapted to the object' of the civil rights laws. Rev.Stat. <section> 722 (1875), applying to Title XIII, Rev.Stat.; 42 U.S.C. <section> 1988; see 28 U.S.C. <section> 1443, formerly Rev.Stat. <section> 641 (1875); 42 U.S.C.A.

<section> 1988 note. Therefore, a federal court is required to use common law powers to facilitate, and not to hinder,'proceedings in vindication of civil rights.' 42 U.S.C. <section> 1988. Lefton v. City of Hattiesburg, supra, 333 F.2d at 284; accord, Brown v. City of Meridian, 5 Cir. 1966, 356 F.2d 602, 605. The Rule as here applied clearly contravenes the Congressional intent as embodied in the civil rights acts.

[4][5] We recognize that the District Court has a valid interest in regulating the qualifications and conduct of counsel, their availability for service of court papers, and their amenability to disciplinary proceedings. See Note, Constitutional Right to Engage An Out-of-State Attorney, 19 Stan.L.Rev. 856, 866 (1967). But the assertion of the District Court's regulatory interest cannot justify a rule that limits the number of pro hac vice appearances, whether it be to one case a year or three cases a year. The respondents correctly state that the rules of the trial court must be 'designed to preserve and protect decorum and the dignity of an honored profession.' [FN6] It is difficult *246 to see how the concern of the District Court in decorum, dignity, competency, good character or amenability to service and discipline is served by a numerical limitation. FN6. Respondent's Response, p. 17, in Anderson v. Cox. We have been unable to find a scintilla of evidence in the entire record which would lead to an inference that there had been or will be any diminishment of decorum or dignity because of the pro hac vice admission of petitioners. Nor can we find any valid basis for denying the privilege of pro hac vice appearances in civil rights litigation to out-of-state attorneys who reside in the state on a temporary basis. This is particularly true here where the residence requirement of the state bar is such as to prevent them from qualifying for admission to the bar of the District Court for a long period of time. No reason has been suggested and we know of none why admission for five years should be a pre-requisite for a pro had vice appearance in civil rights cases.

This provision has no parallel in the rules of other courts, it does not require practice but only admission for five years, and it is not required for general admission to the bar of the Southern District of Mississippi. Rule 1,Rule Regulating Admission of Attorneys, July 10, 1962. It thus cannot be said to serve the purpose of insuring a certain level of competence in representation.

Finally, the provision for a 'more favorable or relaxed rule' to be applied by 'comity' by the District Court really has no pertinency at all. Any rule, whatever its source, that unnecessarily restricts a litigant's choice of counsel in civil rights litigation cannot be sustained.

[6] Apart from the Rule (the rule does not attempt to prohibit pro hac vice admission simply because the court may determine that certain lawyer's participation in a given case is unnecessary), lack of necessity-- in the judge's view-- simply is not and cannot be a proper basis for exclusion in these cases. The trial court cannot substitute its judgment for that of the litigant in the choice or number of counsel that the litigant may feel is required to properly represent his interests.

Amicus Curiae, the Mississippi State Bar, arguing in support of the Rule, points our that it has a vital interest in the ethical conduct of lawyers and the disciplinary action to be taken in the event of misconduct. [FN7] The State has basically three interests that need to be given consideration. The interest in maintaining high levels of professional ethics, the financial or economic interests of the members of the Mississippi bar, and the interest in assuring a high quality of representation.

FN7. There is no suggestion in the record or briefs-- indeed none could have been made-- that the integrity of any of the lawyers involved in this litigation is in question. [7] We can envisage no difficulty in maintaining standards of professional ethics. The pro hac vice admission is to the federal not state court. The federal court is free to and should take measures against unethical conduct if and when it occurs in connection with any proceeding pending before it. Necessary sanctions may be imposed not only directly, but through the bar of which the pro hac vice lawyer is a member, as well as through the local lawyer with whom he is associated. Non-resident lawyers who stay for any significant period of time, as has been the pattern with those employed by the various civil rights organizations, and who do not confine their practice within the limits prescribed by their pro hac vice admission are subject to appropriate action by the State of Mississippi for unauthorized practice of law. Miss.Code Ann. <section> 8682 (1942).

[8] The financial or economic interest of the members of the Mississippi bar are not substantially affected. True, the local bar association will not receive dues paying support, but the federal courts cannot be used to serve such a local interest. And since we are here concerned with free legal services in the representation of civil rights litigants, this is not 'a commercialization of the legal profession which might threaten the moral and ethical fabric of the administration of justice.' Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 1963, 377 U.S. 1, 6, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89. Finally, quality representation by a non-resident attorney in civil rights cases is to be expected. His admission to a state bar is a basic determinant both of the attorney's professional qualification and good moral character because the state bar is the standard-setting body that initially investigates and actively takes steps to insure that the canons of professional ethics are observed. This is borne out by the fact that in most federal district courts in the United States, including the Southern District of Mississippi, membership in the state bar is sufficient qualification for general admission to the district court bar. Association with a local lawyer gives the non-resident lawyer a source of knowledge about local rules and procedures and their proper application to the case at hand. Moreover, in the context of civil rights litigation, an out-of-state lawyer frequently develops an expertise because of his specialization in this field.

In sum, bearing in mind what we have said about what this case does and does not involve, we are unable to perceive how the regulatory powers of either the District Court or the Mississippi State Bar over professional conduct can be or are affected. [FN8]

FN8. Since we are not here concerned with the right of non-lawyers to practice law, the State Bar's reliance upon

Hackin v. Arizona et al., 1967, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347; Darby v. Mississippi State Board of Bar Admissions, Miss.1966, 185 So.2d 684 is misplaced. Likewise the right to practice in the state courts is not involved. See

Theard v. United States, 1957, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342. General admission to the District Court is not in issue, thus the State Bar's insistence upon Application of Wasserman, 9 Cir., 1956, 240 F.2d 213 is unavailing. Our interpretation of Spanos v. Skouras Theatres Corp., 2 Cir., 1966, 364 F.2d 161 is more Favorable to the petitioners than to respondent and we find Martin v. Walton, 1961, 368

In these non-fee generating civil rights cases it is clear that only reasonably limits can be placed on a federal litigant's choice of counsel, and we find that the limits here established by the 'Rule as to Nonresident Attorneys' are not reasonable. In our view the District Court must grant pro hac vice admissions in such cases upon a showing that an individual lawyer is a member in good standing of the bar of some state, without limitation in terms of years of practice or admission. The District Court may not limit the number of appearances that the lawyer can make in such cases. This is not to say or even intimate that the District Court's control over its docket, pretrial procedures and trials is to be in anywise diminished. It is the responsibility of the District Court to keep its dockets current by the expeditious disposition of pretrial motions, hearings and the trial of cases. This cannot be accomplished when, as so often happens in this district, different counsel appear at various stages of the proceedings, with little or no knowledge of what has theretofore transpired in the case. Delays resulting from such unpreparedness necessarily encroach upon valuable judicial time.

Reasonable conditions may be imposed to insure that the same counsel will continue in the case until it is concluded to insure against delays and other administrative inefficiencies that are inherent in the rotation of counsel and to avoid the necessity of continuances because of substitution of counsel. The District Court may refuse to admit a lawyer, otherwise qualified, on a showing that in any legal matter, whether before the particular district court or in another jurisdiction, he has been guilty of unethical conduct of such a nature as to justify disbarment of a lawyer admitted generally to the bar of the court. See In re Ruffalo, 1968, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117. The privilege of pro hac vice appearance in such cases is available to a lawyer whether he comes in to the district on the day of appearance or whether he resides in the state on a non-permanent basis, so long as local counsel, generally admitted to the District Court's Bar, is associated. Such association satisfies the reasonable interest of the District Court in having a member of its Bar, who is subject to the court's general control [this is ridiculous, expensive and impractical in that 1 how would I know lawyers in Danville, and 2 why would a local establishment lawyer want to be responsible for a rebel?], be professionally responsible for the litigation and who can be served with papers, can be notified of hearings and can be held accountable if anything reflecting on the Court or an abuse of its process occurs during the course of the litigation. In this rule there is no need for active participation in the conduct of the litigation by associated counsel. [FN10]

This problem is acute and recurring. As many as four or more lawyers have initially signed pleadings and then in a rotating fashion have appeared at successive hearings. Not infrequently new counsel have been substituted for one or more of those initially appearing. FN10. After this case was orally argued the District Court, on June 12, 1968, promulgated another rule requiring, inter alia, that 'every lawyer who signs or permits his name to be listed as counsel, for either party in any case shall appear in person in that case, unless such counsel (and each counsel who appears) is released by an order of this Court entered on notice to the client, or approved by the client.' We think this rule is overly broad and thus invalid as applied to non-fee generating civil rights cases. We presume that it was promulgated by the District Court to eliminate the problem of successive counsel appearing at different stages in the proceedings. If so, it can no doubt be re-cast in the light of what we have heretofore said. The District Court's Rule as to Nonresident Attorneys is invalid.

Essay: Professional Responsibility: Rules Regulating Attorneys Handling Out-of-State Matters are Often Outdated, but a Case before the California Supreme Court could Update that State's Rules by Pamela Phillips and Sean M. SeLegue

Clients often ask their lawyers to do something that should be simple: help them with a matter that involves another state. The rules regulating the handling of multi-state or out-of-state matters, however, often are out of date, failing to recognize the prevalence of multi-state business practices. And lawyers who negotiate deals in states where they are not licensed can risk forfeiting their fees.

National corporations often conduct nationwide searches for in-house attorneys, and those attorneys may be asked to work in an office in a state in which they are not licensed. These attorneys may travel to other states in which their clients do business but in which they are not licensed. Lawyers in private practice face similar travel demands.

Courts say that a lawyer may not practice law outside the boundaries of the states in which he or she is licensed. 1 Some courts, however, have recognized a few important exceptions to this rule, giving out-of-state attorneys more leeway concerning transactional work and other advice that does not involve a court appearance. 2 In a nod to practicality, some courts also recognize an "interstate practice" exception, which applies when a particular matter necessarily involves two or more states. 3

Other courts will examine the nature of the relationship to see if the attorney fully disclosed to his or her client the attorney's lack of a local license. 4 But some courts pay no heed to client consent, even when the client repeatedly insisted that the attorney perform work in a state in which the attorney is not licensed. 5

Most courts also recognize some kind of "pro hac vice" procedure, in which an out-of-state attorney may obtain permission to appear in court on a particular case, generally on the condition that the attorney associate with a local lawyer. 6

Finally, in some states, attorneys are allowed to appear in federal courts regardless of whether the attorney is licensed in the state in which the federal court sits. 7 These courts reason that states lack jurisdiction to regulate practice before federal courts. 8 But other state courts have disagreed, holding that an attorney who limits his practice to federal court must still be licensed in the state where the federal court is located. 9

California courts have been reluctant to recognize practical exceptions to the general rule that attorneys must be licensed in the state where they practice. The California Supreme Court recently heard a case that gives the court the opportunity to adopt a more flexible approach used by courts in other states. Unfortunately, the court seems poised to adhere to its more traditional, rigid approach, under which an non-California lawyer who crosses the border may be accused of the unlawful practice of law.

In Birbrower, Montalbano, Condon & Frank v. Superior Court, lawyers from New York advised a California company regarding a dispute it had with another company doing business in California. The lawyers eventually initiated an arbitration in California, and participated in settlement discussions there.

The clients then sued the New York firm for malpractice in California, and the New York firm cross-complained for its fees. To defeat the cross-complaint, the client asserted that the New York firm had violated the California statute prohibiting the unlicensed practice of law. 10 Interpreting that statute, a California appellate court held that the New York attorneys could not collect their fees, because only members of the State Bar of California may perform legal services within the state's boundaries. 11

By accepting review, the California Supreme Court had an opportunity to adopt a more modern approach to these issues. At oral argument, however, the justices appeared reluctant to allow the New York attorneys to collect their fee, apparently because the court perceived those lawyers as being beyond the disciplinary power of the State Bar. This seems curious, in light of Rule 1-100(D)(2) of the California Rules of Professional Conduct, which subjects all out-of-state lawyers who perform "lawyer functions" in California to the state's disciplinary standards.

Even if it is impractical for a state to impose professional discipline on out-of-state attorneys, there are ways for state courts to protect their residents other than by denying every out-of-state attorney the ability to collect his or her fee for work properly done. For instance, a court could refuse to allow recovery of fees only when the attorney actually violated the local standards of professional conduct. Similarly, state disciplinary agencies could censure out-of-state attorneys who violate the state's professional standards and notify the attorney disciplinary agency that does have jurisdiction over the attorney. 12

These alternatives would protect clients by requiring out-of-state lawyers to abide by the disciplinary rules and other laws applicable to in-state attorneys. Unlike the Birbrower approach, however, these options would avoid the unfairness of allowing a client to refuse to pay the lawyer solely because of the attorney's lack of a local license, even though the client was aware of that fact.

If, as now seems likely, the California Supreme Court upholds the appellate court ruling, non-California lawyers will need to be more careful to avoid practicing law in California without a license; if a firm's out-of-state attorneys perform actual services in California, fees for those services might not be recoverable.

Even if California's high court adopts the lower court's stringent approach, there are some practical ways that other non-California law firms can avoid suffering the same fate as the Birbrower firm. First, the court of appeal in Birbrower emphasized that "[no one in the Birbrower firm was an active member of the State Bar of California or associated with counsel who was," and "[clearly if the Birbrower firm had associated with locally licensed attorneys, its fees would have been recoverable." 13 This language implies sanctions, such as, say, a tax lawyer from a firm's Florida office visiting her firm's California office to give tax advice to a California resident, so long as the California office employs at least one California-licensed attorney.

This interpretation is consistent with what happens in the real world, but it does not necessarily square with the Birbrower court's otherwise literal reading of the unlawful-practice statute. After all, the Florida tax lawyer is still dispensing tax advice in California, which violates the literal terms of the statute. It is hard to see what benefit the client receives from requiring that the Florida lawyers be "associated" with a California attorney -- either by joint membership in a firm or otherwise -- unless the California attorney is actively involved in the matter.

If the California lawyer has meaningful involvement in the matter, along with the Florida attorney, then the client will pay perhaps unduly high legal fees. True, the client obtains the benefit of a California lawyer, to sue for malpractice if something goes wrong, but is that worth the expense of duplicate, shadow counsel in every matter? Some clients might choose to forego the expense of the second attorney, but the Birbrower decision makes that a risky choice for a law firm to accept. After all, the clients in Birbrower were fully aware that they had hired New York lawyers who were not members of the State Bar of California.

Second, odd as it may seem, it is probably okay for non-California firms to transmit advice to California while remaining physically outside the state. This exception was recognized in a case called Estate of Condon, 14 that the California Supreme Court is holding, pending its decision in Birbrower. The California Supreme Court is likely to return Condon to the Court of Appeal for further consideration after the court issues its decision in Birbrower.

Third, the Birbrower decision did not foreclose the possibility that California will recognize an "interstate practice" exception for matters that are not limited to one state. The Court of Appeal did not repudiate this exception, but simply held that the facts in Birbrower did not warrant its application. The court emphasized that the dispute handled by the New York firm involved two California businesses regarding an agreement that was expressly governed by California law. Thus, if a transaction involved parties in California and other states, California courts might be willing to apply this exception.

Finally, California courts have clearly stated that the State Bar of California lacks jurisdiction to regulate practice in federal courts situated in California. 15 Thus, out-of-state attorneys are probably protected if they appear in federal court with that court's permission. Before taking advantage of this rule, however, an attorney obviously should follow the federal court's rules for gaining admission to the federal court's own bar. 16

But non-California lawyers who cross the border into the state can protect themselves by taking a few common-sense precautions.

Second, get a retainer from any new client - and include a provision for replenishment of the retainer as it is used.

Third, put agreements with the client in writing. In particular, if an attorney informs a client that he or she is not licensed in a particular state where the client wants the attorney to handle a matter, and the client nonetheless insists on representation, then the client's wishes should be memorialized in the attorney's representation agreement. This agreement might not help avoid the Birbrower rule, but it would, at least, make the client less able to paint the out-of-state attorney as a wrongdoer in front of a jury.

Finally, when dealing with a client in another state, an attorney should consider including a provision in the representation and fee agreement designating that the law of the attorney's home state will govern all dealings with the client. It also makes sense to include a forum-selection clause designating the attorney's home state as the venue for any dispute between the attorney and client.

. Spivak v. Sachs, 211 N.E.2d 329 (N.Y. 1965) (California lawyer who flew to New York at express and urgent request of client prohibited from collecting fees). Back

. Dietrich Corp. v. King Resources Co., 596 F.2d 422, 426 (10th Cir. 1979); Appell v. Reiner, 204 A. 2d 146, 148 (N.J. 1964). But see In re Peterson, 163 B.R. 665, 672-73 (D. Conn. 1994) (out-of-court activities of New York attorney practicing in New Jersey bankruptcy court constituted unlawful practice). Back

. Estate of Waring, 221 A.2d 193, 197 (N.J. 1966) ("Multistate relationships are a common part of today's society and are to be dealt with in common-sense fashion"); Appell, 204 A. 2d at 148. Back

. Spanos v. Skouras Theatres Corp., 235 F. Supp. 1, 11 (S.D.N.Y. 1964) (client hired out-of-state attorney for his antitrust expertise, knowing that attorney not licensed in state where litigation pending), rev'd on other grounds, 364 F.2d 161 (2d Cir.), cert. denied, 385 U.S. 987 (1966); Freeling v. Tucker, 289 P. 85, 86 (Idaho 1930) (Oklahoma attorney who practiced in Idaho did not violate unlawful practice statutes, because attorney did not violate "spirit or intention" of statute); see also Ingemi v. Pelino & Lentz, 866 F. Supp. 156, 162 (D.N.J. 1994) (court's pro hac vice rules designed to "guard against an out-of-state firm holding itself out as experienced and competent New Jersey counsel when it may have limited expertise, thereby jeopardizing an unsuspecting New Jersey resident's interests"). Back

. Spivak, 211 N.E.2d at 330-31 (out-of-state attorney could not collect fee despite informing client that he was not licensed in state where he performed services). Back

. Ingemi, 866 F. Supp. at 162-63; Duncan v. St. Romain, 569 So. 2d 687, 688-89 (Miss. 1990); In re Smith, 272 S.E.2d 834, 839 (N.C. 1981) (trial court lacked power to waive statutory requirement that out-of-state attorney associate with local counsel). Back

. Spanos, 364 F.2d at 166; see also Sperry v. Florida, 373 U.S. 379, 403 (1963) (states may not prohibit federally licensed patent agents from giving advice on patent law). In a closely watched case, the Eighth Circuit will soon decide whether federal prosecutors are exempt from state ethics rules. Mark Curridan, Is DOJ Above the Rules?, ABA J., Nov. 1997, at 26. Back

. Spanos, 235 F. Supp. at 13 ("New York could not by local statute or local policy obstruct the conduct of business in the federal courts"). Back

. In re Perrello, 386 N.E.2d 174, 179 (Ind. 1979); Kennedy v. Bar Ass'n of Montgomery County, 561 A.2d 200, 210-11 (Md. 1989); In re Page, 257 S.W.2d 679, 683 (Mo. 1953). Back

. See Sperry, 373 U.S. at 402 (state's interest in protecting its citizens from "unskilled and unethical practitioners" not impeded by federal government's licensing of non-lawyer patent agents because "the Patent Office . . . test[s] applicants for registration, and . . . insist[s] on the maintenance of high standards of integrity"); Dietrich Corp., 596 F.2d at 426 (disbarment of attorney in home state for conduct taking place out of state would have "devastating effect upon his career"). Back

. Each federal district court in California has adopted local rules requiring non-California attorneys to seek permission to appear pro hac vice with the support of a regular member of the district court's bar. C.D. Cal. Local Rule 2.2.3; E.D. Cal. Local Rule 83-180(b); N.D. Cal. Local Rule 11-2; S.D. Cal. Local Rule 83.3. The nationwide rules for admission to the United States Courts of Appeals are more lenient, providing that an attorney licensed in any of the states may become a member of the bar of any of the Courts of Appeals. Fed. R. App. Proc. 46(a).

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My most useful web pages and my most popular web pages are these following pages:

Links for your Empowerment! Self help Litigation forms, instructions, cases, and samples.

10. List of the 30 most important criminal court motions. They are listed in Lawyerdude’s Bill of Rights for Criminal Defendants in jail. This is my New Standard by which to measure effectiveness of counsel. Make your appointed lawyer toe the line: http://www.circuitlawyer.8m.com/5635.html

11. Courtroom assertiveness 101: How to be assertive in court. Scripts for the Pro Se litigant:

12. Were you strip searched? Sue em! http://www.circuitlawyer.8m.com/5728.html Do they do a strip search anus check every time you go to the law library? Did your jail not have a law library?

30. Lawyerdude's library. A prioritized reading list. A list of books that farm folk and an enlightened populace should read. Some of these books justify weekly or monthly review - like your Bible - for your own defense. http://www.lawyerdude.netfirms.com/library.html