Tuesday, April 14, 2009

U.S. v. Felix (9th Cir. - April 13, 2009)

Let me take you -- if you'll have me -- on a digression. But for a good cause. Because it relates to an issue about which I've never devoted much thought, but which I nonetheless had occasion to examine earlier today.

We all know the usual rules about practicing in court. You've generally got to be admitted to the Bar, and the Bar to which you're admitted generally needs to be the one in which you're practicing. Otherwise you've got to get pro hac vice status. Which is much more of a pain than it should be, but nonetheless is generally possible.

With that introduction out of the way, I had chance to stumble upon this case from the Ninth Circuit. Which is an otherwise ordinary drug conviction that gets affirmed. No big surprise there, and the merits of the case are nothing special.

But I always like to know the players, especially in cases from my current locale (San Diego). So I noticed, for example, that the defendant's lawyer -- Benjamin Lechman -- was a USD Law graduate. Not a former student of mine (that I recall, anyway), but a connection nonetheless. (Ben also did his undergraduate studies at Point Loma Nazerene University, which is just up the street from my house. PLNU students have a killer view of the Pacific and a fair number of students who surf, so perhaps Ben was at one point one of the bevy of "Nazbos" who occasionally find their way north and surf the break in front of my home.)

How about on the U.S. Attorney side? There's of course the U.S. Attorney -- Karen Hewitt (also a USD Law graduate, though Berkeley undergrad) -- but the AUSA who actually argued (and likely briefed) the case is Davene Finnel. So where's Ms. Finnel from?

Hence the digression. Because it ain't easy to tell, in large part because while she's done hundreds of cases as an AUSA in San Diego during the past several years, she's not a member of the California Bar.

Which -- and I want to make this crystal clear -- is nothing against Ms. Finnel personally. She seems an entirely reasonable and (I presume) personable individual. But I did want to figure out how a person who's never been admitted in California could practice law here for several years.

Of course, the easy answer -- the one I knew already -- was that she's an AUSA and practices in federal court, not state court. But that's insufficient, since most federal district local rules require that you be admitted in the jurisdiction (e.g., California) in order to be admitted to the local district court (e.g., the SDCA). Unless, of course, you're admitted pro hac, which has its own set of restrictions and to which Ms. Finnel -- as a regular practitioner here -- presumably would not qualify.

So what are the special AUSA rules, which I knew generally but not specifically? I looked 'em up. In the SDCA, the relevant provisions are in Local Rule 83.3(c). The usual rule -- Rule 83.3(c)(1) -- is that only members of the California Bar can be admitted to the SDCA. But Rule 83.3(c)(3) makes special provisions for attorneys for the United States (e.g., the U.S. Attorney or AUSAs), presumably because you get transferred around and are doing mostly federal law anyways. For those people, you can be admitted to the SDCA as long as they're (1) admitted to any other state bar (easy), (2) representing the United States (check), and -- here's the tougher part -- (3) "provided that the attorney shall apply for and pass the next succeeding California bar examination for which the attorney may be eligible after receiving permission to practice before this court and thereafter obtain admission to the State Bar of California."

So far so good, right? We create an exception for AUSAs since we know they move around a fair piece and don't want to burden 'em. Do other lawyers also move around? Sure. Do they get the same exception? No. But perhaps that's okay. It's a very temporary measure to resolve an immediate problem. Soon the AUSA will become a regular member; i.e., at the next Bar exam.

Except for one thing. (c)(4).

Under 28 U.S.C. § 543, the Attorney General may appoint "Special" Assistant United States Attorneys "when the public interest so requires." Now, Section 543 doesn't say anything about giving those people special rules or privileges, and instead is just an authorization to allow them to become AUSAs. But Local Rule 83.3(c)(4) says that anyone so appointed by the AG is exempt from the requirements of paragraph (c)(3); i.e., will never be required to take and/or pass the California bar. Including Ms. Finnel, who became a member of the SDCA several years ago, and has practiced in that court ever since, without qualifying under the regular rules (e.g., by becoming a member of the California bar).

This strikes me as a questionable practice -- again, not as applied to Ms. Finnel individually, but rather as a general (and perhaps constitutional) policy matter. Do I get a temporary exception? Sure. But forever, or even several years? I think not. Particularly when there are plenty of people -- indeed, a daily increasing number -- of attorneys who have passed the California bar and who would be itching to be AUSAs in their home district. The justification for (c)(4), as opposed to (c)(3), seems exceptionally meager.

This exception also seems to me to make constitutionally suspect the remaining provisions of Rule 83.3(c). For example, and perhaps most importantly, Rule 83.3(c)(1) and (c)(5) state that if you're not a member of the California bar, you can't practice at all in the SDCA-- even in a single case pro hac vice -- "if any one or more of the following apply to the attorney: (1) resides in California, (2) is regularly employed in California, or (3) is regularly engaged in business, professional, or other activities in California." It seems to me that given (c)(5), there's a potentially serious constitutional problem -- particularly under the Privileges and Immunities Clause -- with these provisions. A non-admitted (to California) government lawyer is categorically entitled to litigate for years in the SDCA even if she resides in and/or does business here; by contrast, a non-admitted non-AUSA is categorically precluded from litigating in the SDCA if he resides here.

Such a structure might fail even basic rational basis tests, and when you up the ante with the P&I Clause, I think there's a strong argument that Local Rule 83.3(c) is untenable in its current form. Why can a (1) non-resident of California appear as an attorney here on occasion (pro hac vice), but (2) a resident of California cannot, when both residents and nonresident AUSAs can appear? The existence of the exception in (c)(4) calls into question all of the foundational arguments that might otherwise justify the exclusion of state residents from obtaining pro hac vice status. Why can you permissibly exclude Private Lawyer X -- just transferred by his law firm to this state -- from admission to the SDCA for a single case when you categorically include AUSA Y, who was also transferred here and who's entitled to litigate forever?

Are there arguments one could make to attempt to justify this disparity? Sure there are. But I'm not sure they'd either (1) would, or (2) should prevail.

I'm on board for (c)(3). I'd be even more on board for changing (c)(5) -- the rule applicable to non-AUSAs -- so that it allowed admission of private attorneys on the same terms as (c)(3) (i.e., you've got to take the California bar and be admitted as soon as you can). But I'm not on board for (c)(4). Which seems to me both unsound in isolation as well as when contrasted to the analogous provisions governing non-AUSAs (including, say, federal public defenders, who have no similar exemption). Plus it makes the whole structure constitutionally suspect as well.

So ponder some of that the next time your mind considers the words pro hac vice.