Yesterday, I questioned whether I would rather be in Philadelphia. After a decision issued by the Ninth Circuit today, however, I'm damned sure I wouldn't want to be in Winslow, Arizona. In Gallo v. US District Court (9th Cir., Nov. 19, 2003) (PDF, 125kb), the Ninth Circuit committed about sixteen logical errors in reaching the conclusion that an attorney who had previously been allowed to be a full member of the bar of the US District Court for the District of Arizona, even though not a member of the Arizona state bar, had no cause for complaint when the District Court tightened its rules to require pro hac vice admission for lawyers who are not members of the Arizona state bar. The writing quality of the opinion leaves a lot to be desired, primarily because it fails to put all of the logical antecedants in the same paragraph at any point. The most visible instance exposing those errors is:

We recognize that the pro hac vice option requires the attorney seeking such admission to associate with a member of the District Court bar who can sign the necessary court documents. This may be construed as burdensome for the attorney as well as expensive for the client. Also, the decision to grant pro hac vice status is discretionary. Nonetheless, we find these burdens insufficient to constitute grounds for mandating a federal bar to preserve the membership of attorneys who are not members of the bar of the associated state. Requiring either membership in the State Bar of Arizona or pro hac vice status is rationally tailored to serve the District Court’s legitimate interest in regulating the conduct and ethical fitness of lawyers who practice before it.

Slip op. at 16308–09 (citations and footnote omitted).

This argument fails on multiple levels, no matter what "well established case law" seems to require. First, it implies that the Arizona state bar is somehow more capable of disciplining attorneys than any other state to which a federal court might refer disciplinary charges. Considering just how few lawyers are ever disciplined anywhere through a federal court's referral, there is no rational basis for this assumption; only a speculative one. Second, and somewhat more interestingly, this argument necessarily assumes that the District Court's inherent powers (and other powers given by rule, such as Fed. R. Civ. P. 11 and 37) are not sufficient either as a deterrent to unprofessional conduct or as a response to such conduct. The argument also neglects to note that the District Court can choose to disbar a member under its own rules without reference to state rules. Finally, the argument ignores the common practice of reciprocal discipline. In other words, if a lawyer licensed in both jurisdictions A and B is disciplined in jurisdiction A, jurisdiction B will ordinarily impose an identical sanction on little more than a motion.

The corollary argument that comity requires this result—that is, respect for Arizona's ability to control attorneys practicing in Arizona—cuts both ways. The necessary implication is that other states—say, California—are not capable of exercising similar control, even though every state's licensing rules explicitly put attorneys on notice that their behavior throughout the known universe can form the basis for disciplinary action in the state(s) where they are licensed. You can't have it both ways, guys. <SARCASM> Unless, of course, the legal profession is supposed to act more like the Confederate States of America than the United States of America… </SARCASM>