publication(2) - page 7

June 2012 CBA REPORT
l
7
cover article
additionally encourages prospective at-
torneys to forum shop among state bars
for the easiest requirements.”
48
The bankruptcy court and the
district court were not wrong in holding
that the “relevant federal and state rules
govern different spheres of conduct,”
49
but they were wrong in their interpreta-
tion of the Bankruptcy Code and in their
failure to recognize federal preemption
when the “spheres of conduct” overlap.
In a 2009 opinion, the Sixth Circuit said:
“Because the requirements for admission
and continued practice in federal and
state courts are distinct, federal courts
are not conclusively bound by state
disbarment orders. …This is true even
though admission to practice before a
federal court is conditioned upon admis-
sion to practice before a state court.”
50
All of the foregoing might have been
avoided if the U.S. District Court for the
Western District of Michigan had chosen
a different standard for admission to the
bar of that court.
51
Some federal district
courts require active status and good
standing in the bar of the state in which
they sit, and some do not. The local rules
for the Southern District of Ohio state:
“Any member in good standing of the bar
of the Supreme Court of Ohio is eligible
for admission as a permanent member of
the bar of this Court.”
52
At least one federal district court has
changed its rule on eligibility for admis-
sion by narrowing that rule. In 1999,
the United States District Court for the
District Court of Arizona amended its
rule to state: “Admission to and continu-
ing membership in the bar of this Court
is limited to attorneys who are active
members in good standing of the State
Bar of Arizona.”
53
Previously, that court
had allowed non-resident attorneys to
gain admission based on their admission
to the bar of
any
U.S. district court.
54
Existing members of the bar of that
court who did not meet the new standard
were informed that they were no longer
admitted to appear generally before the
court.
55
The Ninth Circuit ultimately held
that the district court’s rule amendment
was “rationally related to a legitimate
interest such that it passes constitutional
scrutiny.”
56
It is axiomatic that the purpose of
regulating the bar is to protect the public
from unethical and incompetent prac-
titioners. In
Desilets
, the Sixth Circuit
noted that “[t]he bankruptcy court, dis-
trict court, and the Michigan Bar seem
in fact to be exercised on practical, not
legal, grounds.”
57
Posit that is because,
as a practical matter, the case leaves us
in a place we don’t want to be. Rules and
codes aside, it defies common sense to
say that Rittenhouse was not an attor-
ney, yet it is unacceptable to “sanction a
practice whereby a lawyer not admitted
to practice by a state maintains an office
there and holds himself out to give advice
to all comers on federal matters.”
58
The local bankruptcy rules for the
Western District of Michigan state
that Local Civil Rule 83.1 governs the
admission, suspension, discipline, and
disbarment of an attorney or law student
who seeks to practice in the bank-
ruptcy court.
59
The Local Rule states:
“An attorney admitted to the bar of this
Court or who practices in this Court as
permitted by this Rule is subject to the
Rules of Professional Conduct adopted
by the Michigan Supreme Court . . . and
consents to the jurisdiction of this Court
and the Michigan Attorney Grievance
Commission and Michigan Attorney
Discipline Board for purposes of disci-
plinary proceedings.”
60
The discord we feel at the end of this
case arises because the federal court re-
lies on Michigan’s standards of conduct,
but does not require attorneys to meet
Michigan’s standards for admission in
the first place. As the Ninth Circuit said
in
Gallo
, “Admission to the state bar is
the essential determinant of professional
ethics and legal competence.”
61
Patterson is general counsel for the Cincinnati Bar
Association. He served on the Ohio Supreme Court
2003-2007 Task Force on Rules of Professional
Conduct. This month marks Patterson’s 30th
anniversary with the CBA. See related story on page 11.
1
In re Ernest J. Desilets,
291 F.3d 925
,
927 (6
th
Cir. 2002).
2
Id.
3
In re Ernest J. Desilets,
247 B.R. 660, 665 (Bankr.W.D. Mich.
2000);
See also
W.D. Mich. Civ. R. 83.1(c) (the Local
Civil Rules of that court, then and now, provide that
“A person who is duly admitted to practice in a court
of record of a state, and who is in active status and in
good standing, may apply for admission to the bar of
this Court,” unless there is prior discipline).
4
In re Ernest J. Desilets,
291 F.3d 925 at 927.
5
Id.
6
In re Ernest J. Desilets,
247 B.R. 660 at 666.
7
Id.
8
Id.
at 663.
9
Id.
at 664.
10
Id.
11
Id.
12
Id.
at 666.
13
Id.
14
In re Ernest J. Desilets,
291 F.3d 925 at 927.
15
In re Ernest J. Desilets,
247 B.R. 660 at 671-672.
16
Id.
at 668.
17
Id.
at 671.
18
Id.
at 672.
19
Id.
20
Id.
at 666.
21
Id.
at 672.
22
Allan J. Rittenhouse v. Delta Home Improvement, Inc.,
255
B.R. 294, 295 (W.D. Mich. 2000).
23
Id.
24
Id.
at 296.
25
Id.
at 296-297.
26
Id.
at 296.
27
Id.
at 297.
28
Id.
29
Id.
30
Id.
31
Id.
at 298.
32
Id.
at 299.
33
Id.
34
In re Ernest J. Desilets,
291 F.3d 925 (6th Cir. 2002).
35
Id.
36
Id.
at 927.
37
Id.
at 927-928.
38
Id.
at 928.
39
Id.
40
Id.
at 930.
41
Id.
42
Id.
43
Id.
44
Id.
at 931.
45
Id.
46
Id.
47
Id
. at 932. He referenced
Leis v. Flynt
, 439 U.S. 438, 442
(1979).The
Leis
court said,“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.The
States prescribe the qualifications for admission to
practice and the standards of professional conduct.
They also are responsible for the discipline of lawyers.”
48
In re Ernest J. Desilets,
291 F.3d 925 at 932.
49
Allan J. Rittenhouse v. Delta Home Improvement, Inc.,
255
B.R. 294 at 297.
50
In re Linda S.
Cook
, 551 F.3d 542, 549 (6
th
Cir. 2009)
(Citations omitted).
51
See
W.D. Mich. Civ. R. 83.1(c)(i) (“Eligibility—A person
who is duly admitted to practice in a court of record
of a state, and who is in active status and in good
standing, may apply for admission to the bar of this
Court, except as provided in (ii) below.”The exception
references the “effect of prior discipline.”).
52 S.D. Ohio Civ. R. 83.3(b). It should be noted that this
rule does not specifically
exclude
anyone who is not
an active member in good standing of the bar of the
Supreme Court of Ohio from eligibility for admission
as a permanent member of the District Court bar.
53 D.Ariz. LR Civ 1.5(a) (now found in LR Civ 83.1(a)).
54
Gallo v. U.S. District Court for the District of Arizona
, 349
F.3d 1169, 1173 (9
th
Cir. 2003).
55
Id.
at 1173-1174.
56
Id
. at 1187.
57
In re Ernest J. Desilets,
291 F.3d 925 at 930.
58
In re Ernest J. Desilets,
247 B.R. 660 at 676 (citations
omitted).
59W.D. Mich. LBR 9010-1(a).
60W.D. Mich. L Civ R 83.1(j).
61
Gallo v. U.S. District Court for the District of Arizona
, 349
F.3d 1169 at 1178 (citation omitted).
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