Good Standing

The United States Court of Appeals for the Ninth Circuit affirmed the dismissal of an action brought challenging local bar admission rules of district courts in the circuit

The panel affirmed the district court’s dismissal with prejudice of a lawsuit brought by Lawyers for Fair Reciprocal Admissions (“LFRA”) challenging local rules of the federal district courts in the Ninth Circuit that require an attorney seeking general admission to the district court to be a member in good standing of the bar of the state in which the district court is located (“Admission Rules”).

The panel held that, except for its Sixth Amendment claim, LFRA pleaded standing to bring claims on behalf of  its members.  However, LFRA lacked standing to bring a Sixth Amendment right to counsel claim on behalf of itself or its members. The Sixth Amendment protects criminal defendants, not their lawyers, and LFRA did not allege that it or any of its members were facing prosecution as defendants in any criminal case and were denied counsel or had their choice of counsel constrained, nor did it allege any other invasion of a legally protected interest.

The panel held that LFRA’s remaining claims failed on the merits.

First, the Admission Rules do not violate separation of powers or federalism principles because a federal district court’s conditioning of general admission to its own bar on forum state membership does not cede any power of the federal judiciary, whether to a coequal branch or to a state.

Second, the Admission Rules do not violate Article IV’s Privileges and Immunities Clause or the Fourteenth Amendment’s Privileges or Immunities Clause because federal district courts’ conditioning of general admission to their bars on forum state bar membership does not involve any action by states. Nor do the Rules discriminate based on state of residence.

Third, the Admission Rules do not violate the Fifth or Fourteenth Amendment’s Equal Protection Clause because, applying rational basis review, there are legitimate reasons for conditioning general admission to a district court on forum state bar membership.

Fourth, the Admission Rules do not violate the First Amendment as they are not unlawful prior restraints, nor do they unlawfully restrict speech based on communicative content. They do not deprive LFRA members of the right to petition or infringe on the right to associate.

Fifth, the Admission Rules do not violate the Full Faith and Credit Act because admission to one state’s bar does not establish that any attorney is qualified to practice in any other state.

Sixth, the Admission Rules do not implicate 28 U.S.C. § 2072(b) of the Rules Enabling Act or § 332(d)(4) of the statutory rules for the Ninth Circuit Judicial Council because they are not general rules of practice and procedure prescribed by the Supreme Court under § 2072(a).

Seventh, the Admission Rules do not violate Federal Rules of Civil Procedure 1 and 83 because Rules 1 and 83 do not create a private right of action.

Eighth, LFRA’s procedural due process claims failed because they lack sufficient factual allegations.

Finally, the panel held that the district court did not abuse its discretion in dismissing LFRA’s amended complaint without leave to amend because LFRA’s complaint could not be saved by amendment.

Admission authority

“Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions.” Leis v. Flynt, 439 U.S. 438, 442 (1979) (per curiam). The Supreme Court has long understood that “the Constitution does not require that because a lawyer has been admitted to the bar of one State, he or she must be allowed to practice in another.” Id. at 443 (collecting cases). And we have recognized that “[f]ederal courts have inherent and broad regulatory authority to make rules respecting the admission, practice, and discipline of attorneys in the federal courts.” Gallo v. U.S. Dist. Ct. for the Dist. of Ariz., 349 F.3d 1169, 1179–80 (9th Cir. 2003) (citing Ex parte Robinson, 86 U.S. (19 Wall.) 505 (1873); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867)); see also Frazier v. Heebe, 482 U.S. 641, 645 (1987) (recognizing that “a district court has discretion to adopt local rules that are necessary to carry out the conduct of its business,” including “the regulation of admissions to its own bar”).

Falling within this regulatory authority is the discretion to adopt local rules that “rely on the infrastructure provided by state bar associations in meeting [district courts’] own needs for monitoring attorney admission and practice in the federal courts.” Gallo, 349 F.3d at 1180 (citing Russell v. Hug, 275 F.3d 812 (9th Cir. 2002)). The incorporation of state bar admission rules into the federal bar Admission Rules is an instance of such permissible reliance. In Giannini v. Real, 911 F.2d 354 (9th Cir. 1990), we upheld the constitutionality of the admission rules of the U.S. District Courts of the Central, Eastern, and Southern Districts of California against challenges under Article IV’s Full Faith and Credit Clause, the Fifth Amendment’s Equal  Protection Clause, and a “right to travel” derived from the Constitution. Id. at 355, 359–60, 360 n.7; see id. at 357 & n.5 (noting Giannini claimed a violation of a right to travel derived from the Commerce Clause but holding that “[t]he lack of disparate treatment of non-residents or recent arrivals” is “fatal to Giannini’s claims” based on the right to travel, whether derived from the Privileges and Immunities Clause or otherwise). In light of this precedent, we plow little new ground here.

(Mike Frisch)