“There are lots of good reasons to have these rules, but there are district courts around the country that appear to get by without them as well,” said Edward Borden of Earp Cohn, who regularly serves as local counsel.
By Charles Toutant
Dr. Martin Luther King Jr. Building and U.S. Federal Courthouse in Newark, New Jersey. Photo: Carmen
An organization that advocates nationwide reciprocal admission has filed a suit seeking to overturn local rules in federal court that deny reciprocal admission to lawyers from other states.
The suit by Lawyers for Fair Reciprocal Admission takes aim at local rules in New Jersey and Delaware but seeks to overturn rules anywhere lawyers not admitted locally are required to enlist local counsel.
Such rules are in effect in two-thirds of the nation’s 94 federal court districts, the group says.
The suit was filed Tuesday in the District of New Jersey.
Barring admission to lawyers from other states and compelling litigants to affiliate with local counsel are “antiquated, egregiously wrong, and facially unconstitutional,” the suit claims. The suit says those rules infringe on free speech. Defendants in the case are the United States, Attorney General Merrick Garland, and the judges of the U.S. Court of Appeals for the Third Circuit, the District of New Jersey and the District of Delaware.
A similar suit in the District of New Jersey was dismissed in 2015, and the Third Circuit upheld that decision in 2016.
That suit was brought by a group called the National Association for the Advancement of Multijurisdiction Practice.
The attorney who represented that organization, Joseph R. Giannini of Los Angeles, also represents Lawyers for Fair
Reciprocal Admission in the latest case.
The previous suit was dismissed based on the so-called professional speech doctrine and under a rational basis
standard, but since then the Supreme Court has rejected the professional speech doctrine in a 2018 case, NIFLA v. Becerra, Giannini said. And the court ruled in another 2018 case, Janus v. American Federation of State, County, and Municipal Employees, that the rational basis standard does not apply to free speech jurisprudence, said Giannini.
“Prior cases upholding local rules were decided under two theories that the Supreme Court has expressly
rejected. It’s a whole new ball game,” said Giannini.
Pro Hac Vice Workaround?
The suit says New Jersey’s local rules “vicariously adopt” out-of-state bar admission rules from the New Jersey Supreme Court, even though that court does not have extra-territorial jurisdiction over bar admission rules in federal courts.
The suit also says that local rules for the federal court in Delaware “piggy-back” the Delaware Supreme Court admission rules for out-of-state attorneys.
In Delaware, in order to qualify for general admission privileges, an experienced attorney from another state must “reinvent the wheel” by passing the state’s bar exam and serving as a clerk in a Delaware law firm for 21 weeks at 40 hours per week for little or no compensation in order to obtain general admission privileges.
But the burden that out-of-state lawyers face under the rules at issue is not great, said Edward Borden Jr., a lawyer at Earp Cohn in Cherry Hill, New Jersey, who regularly serves as local counsel for out-of-state lawyers.
“Once someone’s admitted pro hac vice, they can appear in court without local counsel being present. They can try a case from beginning to end without local counsel being present. There are certain special requirements in the local rules about things the local counsel does have to do. For instance, receive payments of money,” Borden said. “One good reason to require local counsel is that in New Jersey our disciplinary system is very strict regarding the handling of client funds and trust accounts, things like that. So if you didn’t have that requirement, and funds had to be held in trust, who knows where they’d be held? And what account, and where, and how is it supervised? There are a number of good reasons to require a local nexus.”
Also, “what happens when someone stipulates to something and then all of a sudden that lawyer who is from out of state no longer appears, what happens to that stipulation?” Borden asked. “There are lots of good reasons to have these rules, but there are district courts around the country that appear to get by without them as well,” he said.
Borden said he was not concerned about a change in local rules.
“If the jurisprudence has advanced far enough that the federal courts want to determine as a matter of law that a local rule requiring local counsel is unconstitutional, I don’t think it’s going to have a major effect,” he said. “It will very often be the case that a litigant will want to have local counsel, in addition to pro hac vice counsel, just for local knowledge.”