Monday, January 7, 2002
Page 1
Ninth Circuit Rules:
Out-of-State Lawyers Not Entitled to Represent Poor in U.S. Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
A district court’s requirement that members of its indigent defense panel belong to the State Bar of California as well as the district bar was upheld Friday by the Ninth U.S. Circuit Court of Appeals.
The panel rejected Jeffrey L. Russell’s claims that the California admission requirement, set forth in the Northern District’s Criminal Justice Act plan, violates several constitutional and statutory provisions. Russell was a federal prosecutor for 16 years, including six in the San Francisco-based district, but is not a State Bar member.
He is represented by Joseph Giannini of Los Angeles, a member of the Pennsylvania and New Jersey bars who has battled for years on behalf of non-California lawyers living in the state.
Among the authorities cited Friday by the panel was Giannini’s own case, Giannini v. Real, 911 F.2d 354 (9th Cir. 1990). The court there upheld the Central District of California’s requirement that attorneys admitted to practice before the court be members of the State Bar.
The Northern District has required since September 1995 that all newly admitted members of its bar be State Bar members, as is required in all three of the state’s other districts. Out-of-state lawyers admitted to the Northern District bar before then, including Russell and Giannini, can still practice in the district court but cannot serve on the indigent panel.
Russell argued, among other things, that the restriction violated his equal protection rights.
Strict Scrutiny
He claimed that the court should apply strict scrutiny to redress what he said was a deprivation of his fundamental right to practice law. He also argued that the restriction is irrational because lawyers who are State Bar members but have far less criminal law experience and far less practice experience in the district court than he does can serve on the panel.
But U.S. District Judge Harold Vietor of the Southern District of Iowa, who was brought in to hear the case, found the restriction to be valid and dismissed the suit. Ninth Circuit Senior Judge William C. Canby Jr. Friday agreed.
There is no fundamental right to practice law, the appellate jurist declared, so Russell’s equal protection challenge fails if there is a rational basis for the requirement. Canby found two rational bases—promotion of competence and high ethical standards.
Establishing State Bar membership as a minimum competency standard makes sense, Canby reasoned, “because it is a standard with which the Northern District is familiar, and a standard that is quite possibly higher than that of many other states.” California admission is also a rational minimum ethical standard, the judge said, since lawyers are subject to investigation before they can enter the State Bar.
Canby expressed sympathy for Russell’s position, acknowledging that he would probably do a good job if he were included on the panel. But under the rational-basis test, a requirement that serves a legitimate purpose must be upheld “even when there is an imperfect fit between means and ends,” the jurist explained.
First Amendment Rights
The judge went on to reject the argument that the restriction infringes on the First Amendment rights of non-California lawyers by limiting their ability to speak on behalf of their clients and petition for redress of grievances.
Canby cited another Giannini case, Paciulan v. George, 229 F.3d 1226 (9th Cir. 2000), in which the court upheld the State Bar’s rule precluding out-of-state lawyers who live in California from being admitted pro hac vice against a similar First Amendment challenge.
If Russell’s argument were accepted, Canby said, any lawyer could simply choose the state he or she thought had the easiest bar exam, pass it, and then practice in any of the 50 states.
The case is Russell v. Hug, 99-16999.
Copyright 2002, Metropolitan News Company