Mothershed v. Justices of the Supreme Court

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE L. MOTHERSHED, 

Plaintiff-Appellant,

v.

JUSTICES OF THE SUPREME COURT;

CLERK OF THE SUPREME COURT,

STATE OF ARIZONA; SUPREME

COURT OF ARIZONA DISCIPLINARY

COMMISSION; HEARING OFFICER; BAR

COUNSEL OF ARIZONA STATE BAR

ASSOCIATION; STATE OF OKLAHOMA

JUSTICES OF THE SUPREME COURT;

OKLAHOMA PROFESSIONAL No. 03-16878

RESPONSIBILITY TRIBUNAL OF THE

SUPREME COURT, Chief Master;  D.C. No.

CV-02-02375-RCB

OKLAHOMA PROFESSIONAL

RESPONSIBILITY TRIBUNAL OF THE OPINION

SUPREME COURT, Trial Panel of

February 1, 2002; GENERAL

COUNSEL OF OKLAHOMA BAR

ASSOCIATION; TRIAL COUNSEL OF

OKLAHOMA BAR ASSOCIATION;

RUDOLPH HARGRAVE, Oklahoma

Supreme Chief Justice; MADELINE

HARGRAVE, Wife; ROBERT E.

LAVENDER, Justice, Oklahoma

Supreme Court; MAXINE LAVENDER,

Wife; JOSEPH M. WATT, Vice-Chief

Justice, Oklahoma Supreme Court;



6321

6322 MOTHERSHED v. JUSTICES

CATHY WATT, Wife; RALPH B. 

HODGES, Justice, Oklahoma

Supreme Court; JANELLE HODGES,

Wife; MARIAN P. OPALA, Justice,

Oklahoma Supreme Court; JANE

DOE OPALA, Wife; DANIEL J.

BOUDREAU, Justice, Oklahoma

Supreme Court; JANE DOE

BOUDREAU, Wife; YVONNE KAUGER,

Justice, Oklahoma Supreme Court;

NED BASTOW, Husband; HARDY

SUMMERS, Justice, Oklahoma

Supreme Court; MARILYN

SUMMERS, Wife; JAMES

WINCHESTER, Justice, Oklahoma

Supreme Court; SUSAN 

WINCHESTER, Wife; J. DANIEL

MORGAN, Chief Master,

Professional Responsibility

Tribunal of the Supreme Court of

the State of Oklahoma; JANE DOE

MORGAN, Wife; J. PATRICK KENT,

Presiding Master, Professional

Responsibility Tribunal of the

Supreme Court of the State of

Oklahoma; JANE DOE KENT, Wife;

ROBERT L. HERT, JR., Member of

Trial Panel of the Professional

Responsibility Tribunal of the

Supreme Court of the State of

Oklahoma; JANE DOE HERT, Wife;



MOTHERSHED v. JUSTICES 6323

DANA WILLIAMS, Member of Trial 

Panel of the Professional

Responsibility Tribunal of the

Supreme Court of the State of

Oklahoma; DALE CABINESS,

Member of Trial Panel of the

Professional Responsibility

Tribunal of the Supreme Court of

the State of Oklahoma; JANE DOE

CABINESS, Wife; DAN MURDOCK,

General Counsel, Supreme Court

of Oklahoma; JANE DOE MURDOCK,

Wife; ALLEN J. WELCH, Bar

Counsel, Oklahoma Supreme

Court; JANE DOE WELCH, Wife;

CHARLES E. JONES, Chief Justice,

Arizona Supreme Court; JANE DOE 

JONES, Wife; RUTH V. MCGREGOR,

Vice Chief Justice, Arizona

Supreme Court; JOHN DOE

MCGREGOR, Husband; STANLEY

FELDMAN, Justice, Arizona

Supreme Court; JANE DOE

FELDMAN, Wife; REBECCA WHITE

BERCH, Justice, Arizona Supreme

Court; JOHN DOE BERCH, Husband;

MICHAEL D. RYAN, Justice,

Arizona Supreme Court; JANE DOE

RYAN, Wife; PETER CAHILL,

Member of the Disciplinary

Commission of the Supreme Court

of Arizona; JESSICA GIFFORD

FUNKHOUSER, Member of the



6324 MOTHERSHED v. JUSTICES

Disciplinary Commission of the 

Supreme Court of Arizona;

CYNTHIA L. CHOATE, Member of

the Disciplinary Commission of

the Supreme Court of Arizona;

BARBARA ATWOOD, Member of the

Disciplinary Commission of the

Supreme Court of Arizona; C.

ALAN BOWMAN, Member of the

Disciplinary Commission of the

Supreme Court of Arizona; CRAIG

MEHRENS, Member of the

Disciplinary Commission of the

Supreme Court of Arizona; STEVEN

G. NELSON, Member of the 

Disciplinary Commission of the

Supreme Court of Arizona; LOREN

J. BRAUD, Bar Counsel, Arizona

Supreme Court aka Loren J.

Broad; JANE DOE BRAUD, Wife aka

Jane Doe Broad; JOHN PRESSLEY

TODD, Hearing Office 7X, Arizona

Supreme Court; JANE DOE TODD,

Wife; NOEL K. DESSAINT, Clerk,

Arizona Supreme Court; WILLIAM

M. SPENCE, Attorney; JANE DOE

SPENCE, Wife,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Arizona

Robert C. Broomfield, District Judge, Presiding

Argued and Submitted

April 15, 2005—San Francisco, California

MOTHERSHED v. JUSTICES 6325

Filed June 6, 2005

Before: Alfred T. Goodwin, Robert R. Beezer, and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge O’Scannlain

6328 MOTHERSHED v. JUSTICES

COUNSEL

George L. Mothershed, Phoenix, Arizona, argued the cause

for the appellant and filed a brief.

LeslieAnn Haacke, Renaud Cook Drury Mesaros, P.A., Phoe-

nix, Arizona, argued the cause for the appellees; Terry God-

dard, Attorney General, Phoenix, Arizona, Rosa Mroz,

Assistant Attorney General, Phoenix, Arizona, N. Todd

McKay, Renaud Cook Drury Mesaros, P.A., Phoenix, Ari-

zona, Charles K. Babb, Assistant Attorney General, Okla-

homa City, Oklahoma, and Allen J. Welch, Oklahoma Bar

Association, Oklahoma City, Oklahoma, were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a disbarred attorney may collater-

ally attack his state bar disciplinary proceedings in federal

court.

I

In 1999, the State Bar of Arizona initiated disciplinary pro-

ceedings against George L. Mothershed, an attorney who was

MOTHERSHED v. JUSTICES 6329

licensed by the Oklahoma Bar Association but who lived and

practiced in Arizona. In response to the disciplinary board’s

allegation that he had unlawfully practiced law in the State,

Mothershed entered a special appearance and moved to dis-

miss the complaint on the ground that he had not received a

summons. The hearing officer denied this motion, and

Mothershed subsequently refused to participate further in the

disciplinary proceedings. A default judgment was entered

against him, and the Supreme Court of Arizona issued an

order censuring Mothershed for engaging in the unauthorized

practice of law. See In re Mothershed, No. SB-01-0076-D,

2001 Ariz. LEXIS 63 (2001).

The Oklahoma Bar Association thereafter initiated its own

disciplinary proceedings against Mothershed. A three-member

trial panel found that he had unlawfully practiced law in Ari-

zona, and the Supreme Court of Oklahoma entered an order

disbarring him. See State ex rel. Okla. Bar Ass’n v. Mother-

shed, 66 P.3d 420, 428 (Okla. 2003).

Mothershed responded by filing suit in the United States

District Court for the District of Arizona against the Justices

of the Oklahoma Supreme Court, the three members of the

Oklahoma disciplinary trial panel, and several officials of the

Oklahoma Bar Association (the “Oklahoma Defendants”). He

also sued the Justices of the Arizona Supreme Court, the

Clerk of the Arizona Supreme Court, the members of the Ari-

zona Supreme Court Disciplinary Commission, the hearing

officer in the Arizona disciplinary proceedings, and a state bar

staff counsel (the “Arizona Defendants”). Mothershed alleged

that the Arizona disciplinary proceedings were invalid

because he had not been served with a summons. He con-

tended that the Oklahoma proceedings were likewise defec-

tive because his hearing did not occur between thirty and sixty

days after appointment of the trial panel, as required by Rule

6.7 of the Oklahoma Rules Governing Disciplinary Proceed-

ings.1 Based upon these alleged procedural shortcomings,

1

The rule provides:

The Chief Master or Vice-Chief Master of the Professional

6330 MOTHERSHED v. JUSTICES

Mothershed asserted a claim under 42 U.S.C. § 1983 for due

process and other constitutional violations, as well as state

law tort claims for interference with contractual relationships,

defamation, abuse of process, malicious prosecution, false

light, and intentional infliction of emotional distress.

Mothershed also contended that Arizona Supreme Court

Rules 33(d) and 34,2 which set forth the pro hac vice admis-

sion requirements for out-of-state attorneys and the standards

for admission to the State Bar of Arizona, violate Arizonans’

First Amendment right to consult with an attorney and contra-

vene both the Sherman Antitrust Act, 15 U.S.C. § 1, and the

Arizona Uniform State Antitrust Act, ARIZ. REV. STAT. § 44-

1402. Mothershed requested damages totaling more than $330

million and an injunction reinstating his membership in the

Oklahoma Bar Association and prohibiting the defendants

from interfering with his Arizona law practice.

After the defendants moved to dismiss the complaint on

various grounds, the district court dismissed the Oklahoma

defendants due to the absence of personal jurisdiction. The

court later dismissed the claims against the Arizona defen-

dants on the ground that Mothershed was improperly seeking

review of the Arizona bar disciplinary proceedings in a lower

Responsibility Tribunal shall notify the respondent and the Gen-

eral Counsel of the appointment and membership of the Trial

Panel and of the time and place for hearing, which shall not be

less than thirty (30) nor more than sixty (60) days from the date

of appointment of the Trial Panel. Extensions of this period may

be granted by the Chief Master (or the Vice-Chief Master, in case

of the unavailability of the Chief Master) for good cause shown.

2

Rule 33(d) provides that a member in good standing of the bar of

another State may be admitted to appear pro hac vice in Arizona upon

approval by the court hearing the matter. Rule 34 lists the requirements for

admission to the State Bar of Arizona, which include passing the bar

examination and being certified by the Committee on Character and Fit-

ness as possessing good moral character.

MOTHERSHED v. JUSTICES 6331

federal court and that subject matter jurisdiction was therefore

absent under the Rooker-Feldman doctrine. Mothershed

timely appealed.

II

In the face of growing judicial uncertainty about the

Rooker-Feldman doctrine’s parameters, the Supreme Court

recently reiterated that its applicability “is confined to cases

of the kind from which the doctrine acquired its name: cases

brought by state-court losers complaining of injuries caused

by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 544 U.S. ___, 125 S. Ct. 1517, 1521-22

(2005); see also Rooker v. Fid. Trust Co., 263 U.S. 413, 416

(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462,

486-87 (1983).

We must therefore decide whether Mothershed’s claims fall

within the Rooker-Feldman doctrine’s narrowed scope.

A

[1] Under Rooker-Feldman, lower federal courts are with-

out subject matter jurisdiction to review state court decisions,

and state court litigants may therefore only obtain federal

review by filing a petition for a writ of certiorari in the

Supreme Court of the United States. See Rooker, 263 U.S. at

416 (holding that a federal district court lacked subject matter

jurisdiction over a suit that effectively sought review of an

Indiana state court’s decision); Feldman, 460 U.S. at 486-87

(holding that a federal district court was without subject mat-

ter jurisdiction to entertain a challenge to a decision of the

District of Columbia Court of Appeals); see also 28 U.S.C.

§ 1257 (“Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari . . . .”).

6332 MOTHERSHED v. JUSTICES

The doctrine does not, however, prohibit a plaintiff from pre-

senting a generally applicable legal challenge to a state statute

in federal court, even if that statute has previously been

applied against him in state court litigation.

[2] This distinction is well illustrated by the Feldman deci-

sion itself. There, two aspiring attorneys had petitioned the

District of Columbia Court of Appeals for a waiver of a D.C.

bar rule requiring applicants to have graduated from an

accredited law school. Feldman, 460 U.S. at 466. After the

Court of Appeals denied their petitions, the plaintiffs filed suit

in federal district court challenging both the D.C. bar rule’s

general constitutionality and the District of Columbia court’s

decision in their particular cases. Id. at 468, 472. The

Supreme Court held that the district court possessed subject

matter jurisdiction over the former claim but not the latter. Id.

at 486-87. The Court explained:

United States district courts . . . have subject-matter

jurisdiction over general challenges to state bar rules,

promulgated by state courts in nonjudicial proceed-

ings, which do not require review of a final state-

court judgment in a particular case. They do not have

jurisdiction, however, over challenges to state-court

decisions in particular cases arising out of judicial

proceedings even if those challenges allege that the

state court’s action was unconstitutional. Review of

those decisions may be had only in this Court.

Id. at 486; see also id. at 482 n.16 (“ ‘[O]rders of a state court

relating to the admission, discipline, and disbarment of mem-

bers of its bar may be reviewed only by the Supreme Court

of the United States on certiorari to the state court, and not by

means of an original action in a lower federal court.’ ” (quot-

ing MacKay v. Nesbett, 412 F.2d 846, 846 (9th Cir. 1969))

(alteration in original)).

Similarly, in Craig v. State Bar of California, 141 F.3d

1353, 1354 (9th Cir. 1998) (per curiam), the plaintiff filed a

MOTHERSHED v. JUSTICES 6333

§ 1983 claim in federal court against the California bar after

the state supreme court denied review of the California Com-

mittee of Bar Examiners’ refusal to modify the new-attorney

oath to comport with his religious beliefs. We held that sub-

ject matter jurisdiction was absent because the plaintiff was

seeking review of his individual claim and did not present a

general challenge to the California bar’s policy. Id. We rea-

soned that a

plaintiff can challenge the state supreme court’s

denial of bar admission to a particular applicant, the

validity of the state’s rules governing admission, or

both. Lower federal courts lack subject matter juris-

diction over the first type of challenge . . . . In con-

trast, a general attack on a state’s admissions rules

may be heard by lower federal courts because a state

supreme court acts in a nonjudicial capacity when it

promulgates such rules.

Id. (citation omitted).

B

[3] Mothershed alleges that the Oklahoma defendants

denied him due process and committed various state law torts

because the Oklahoma bar disciplinary panel did not hold its

hearing within the thirty-to-sixty-day time frame required by

Rule 6.7 of the Rules Governing Disciplinary Proceedings.

Because Mothershed does not contend that Rule 6.7 is sys-

tematically disregarded in all attorney disciplinary proceed-

ings or that the rule is itself facially invalid, he is not asserting

a “general challenge[ ] to [a] state bar rule[ ].” Feldman, 460

U.S. at 486. Rather, Mothershed is alleging that the Oklahoma

defendants failed to apply Rule 6.7 during his own state bar

disciplinary hearing, which constitutes a “challenge[ ] to [a]

state-court decision[ ] in [a] particular case[ ].” Id. Under the

Rooker-Feldman doctrine, the district court lacked subject

matter jurisdiction to review Mothershed’s Oklahoma disci-

6334 MOTHERSHED v. JUSTICES

plinary proceedings, and we therefore affirm the dismissal of

the Oklahoma defendants.3

C

[4] Mothershed’s claims premised upon the alleged absence

of a summons directing him to appear at the Arizona disci-

plinary hearing are likewise barred by the Rooker-Feldman

doctrine because these claims constitute a particularized chal-

lenge to the Arizona disciplinary proceedings’ results. The

district court therefore correctly concluded that it lacked sub-

ject matter jurisdiction over Mothershed’s § 1983 and state

law tort claims against the Arizona defendants, all of which

are premised upon his failure to receive a summons.

D

Mothershed also alleges, however, that the admission

requirements set forth in Arizona Supreme Court Rules 33(d)

and 34 violate Arizonans’ First Amendment right to consult

an attorney of their choosing and contravene both the Sher-

man Antitrust Act and the Arizona Uniform State Antitrust

Act. These claims pertain to the rules’ validity as applied to

all attorneys within Arizona (and, indeed, all Arizona resi-

dents) and thus do not present an individualized challenge to

Mothershed’s bar disciplinary proceedings. Rather—like the

Feldman plaintiffs’ general constitutional attack on the D.C.

bar’s accreditation requirement—these claims constitute a

3

The district court’s dismissal of the Oklahoma defendants was prem-

ised upon the absence of personal jurisdiction, not subject matter jurisdic-

tion. Where “subject-matter jurisdiction will involve no arduous inquiry,”

however, “both expedition and sensitivity to state courts’ coequal stature

should impel the federal court to dispose of that issue first.” Ruhrgas AG

v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999). Here, the subject mat-

ter jurisdiction inquiry involves a straightforward application of the

Rooker-Feldman doctrine, and we accordingly adhere to the Supreme

Court’s admonition by relying upon the lack of subject matter jurisdiction

to dismiss the Oklahoma defendants.

MOTHERSHED v. JUSTICES 6335

general challenge to the rules governing admission to the Ari-

zona bar. See Hoover v. Ronwin, 466 U.S. 558, 564-65 (1984)

(entertaining a Sherman Act challenge to the Arizona bar

exam’s grading methodology brought by an attorney who had

earlier contested his own exam results in separate Arizona

state court proceedings).

[5] Because “a general attack on a state’s admissions rules

may be heard by lower federal courts,” Craig, 141 F.3d at

1354, the district court erred by concluding that it lacked sub-

ject matter jurisdiction over Mothershed’s First Amendment

and antitrust claims against the Arizona defendants.

III

Although the district court did indeed possess subject mat-

ter jurisdiction over Mothershed’s general challenges to the

Arizona Supreme Court rules, we “may affirm the district

court’s dismissal on any ground supported by the record.”

Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). We

first consider Mothershed’s antitrust claims and then turn to

his First Amendment challenge.

A

[6] In Parker v. Brown, 317 U.S. 341, 352 (1943), the

Supreme Court held that the Sherman Act does not apply to

certain categories of state action. Later decisions have held

that one of these categories is the regulation of attorneys by

a state supreme court. In Bates v. State Bar of Arizona, 433

U.S. 350, 359 (1977), for example, the plaintiffs alleged that

an Arizona bar disciplinary rule prohibiting advertising by

attorneys violated the Sherman Act. The Court determined

that the Arizona Supreme Court—not the state bar—was the

“real party in interest.” Id. at 361. That court had “adopted the

rules,” id., and was “the ultimate body wielding the State’s

power over the practice of law,” id. at 360. Because the adver-

tising restrictions were “compelled by direction of the State

6336 MOTHERSHED v. JUSTICES

acting as a sovereign,” id. (internal quotation marks omitted),

they were not amenable to a Sherman Act challenge.

Likewise, in Hoover v. Ronwin, 466 U.S. at 565, a plaintiff

who had failed the Arizona bar exam filed suit against the

members of the Committee on Examinations and Admissions

alleging that the manner in which they graded the exam vio-

lated the Sherman Act. Although the individual members of

the Committee were the named defendants, the Court con-

cluded that the suit was barred by Parker’s state-action excep-

tion because the “Arizona Supreme Court necessarily

delegated the administration of the admissions process to the

Committee . . . and retained the sole authority to determine

who should be admitted to the practice of law in Arizona.” Id.

at 573. Accordingly, the conduct being “challenge[d] was in

reality that of the Arizona Supreme Court.” Id.; cf. Goldfarb

v. Va. State Bar, 421 U.S. 773, 790 (1975) (holding that a

minimum fee schedule enforced by the Virginia state bar did

not fall within the Parker exception because the fee schedule

was not mandated by the Virginia Supreme Court and thus it

could not “fairly be said that the State of Virginia through its

Supreme Court Rules required the anticompetitive activi-

ties”).

Here, Mothershed alleges that Arizona Supreme Court

Rules 33(d) and 34 violate the Sherman Act. These claims are

squarely foreclosed by Bates and Hoover. Although Mother-

shed’s claim is nominally against certain state bar officials

and the Supreme Court Justices in their individual capacities,

it is the Supreme Court of Arizona that is the “real party in

interest” because the state bar rules that Mothershed is chal-

lenging are promulgated by the court in its supervisory role

over the practice of law in Arizona. See In re Shannon, 876

P.2d 548, 571 (Ariz. 1994) (“the determination of who shall

practice law in Arizona and under what condition is a function

placed by the state constitution in this court” (internal quota-

tion marks omitted)). Rules 33(d) and 34 are therefore “com-

pelled by direction of the State acting as a sovereign,” Bates,

MOTHERSHED v. JUSTICES 6337

433 U.S. at 360 (internal quotation marks omitted), and are

exempt from Sherman Act challenges.

B

Mothershed also asserts a state antitrust claim under Ari-

zona law. The Arizona Uniform State Antitrust Act “is inter-

preted in conformity with the federal [antitrust laws].”

Arizona v. Maricopa County Med. Soc’y, 643 F.2d 553, 554

n.1 (9th Cir. 1980), rev’d on other grounds, 457 U.S. 332

(1982); see also Wedgewood Inv. Corp. v. Int’l Harvester Co.,

613 P.2d 620, 623 (Ariz. Ct. App. 1979) (“The Arizona legis-

lature clearly intended to strive for uniformity between federal

and state antitrust laws.”). Indeed, ARIZ. REV. STAT. § 44-1412

explicitly provides, “It is the intent of the legislature that in

construing [the Uniform State Antitrust Act], the courts may

use as a guide interpretations given by the federal courts to

comparable federal antitrust statutes.” Cf. Bunker’s Glass Co.

v. Pilkington, PLC, 75 P.3d 99, 102, 106 (Ariz. 2003)

(acknowledging the federal antitrust laws’ general “impor-

tance” to the interpretation of the Uniform State Antitrust Act,

while also observing that Arizona courts need not “rigidly fol-

low federal precedent on every issue of antitrust law regard-

less of whether differing concerns and interests exist in the

state and federal systems”).

[7] No court has previously had occasion to consider

whether there exists a state-action exception to the Arizona

antitrust laws. Nevertheless, in light of the Arizona legisla-

ture’s avowed desire to achieve uniformity between the Uni-

form State Antitrust Act and the federal antitrust laws, the

Arizona Supreme Court would most likely follow Bates and

Hoover and hold that its rules governing attorney conduct are

not amenable to state law antitrust challenges. See Assurance

Co. of Am. v. Wall & Assocs. LLC of Olympia, 379 F.3d 557,

560 (9th Cir. 2004) (“[W]hen interpreting state law, federal

courts are bound by decisions of the state’s highest court. In

the absence of such a decision, a federal court must predict

6338 MOTHERSHED v. JUSTICES

how the highest state court would decide the issue . . . .”

(internal quotation marks and citation omitted)). Mother-

shed’s state law antitrust claim therefore fails for the same

reason as its federal counterpart.

C

Mothershed contends that Arizona Supreme Court Rules

33(d) and 34 violate the First Amendment right of Arizonans

to consult with a lawyer of their choosing. Because Mother-

shed does not allege that he has himself suffered a First

Amendment injury, we must first determine whether he has

standing to pursue this claim on behalf of other Arizonans.

1

[8] A “plaintiff generally must assert his own legal rights

and interests, and cannot rest his claim to relief on the legal

rights or interests of third parties.” Warth v. Seldin, 422 U.S.

490, 499 (1975). This limitation is relaxed in the First

Amendment context, however, because “when there is a dan-

ger of chilling free speech, . . . society’s interest in having the

statute challenged” may outweigh the prudential consider-

ations that normally counsel against third-party standing.

Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 956

(1984). A plaintiff’s ability to invoke so-called “overbreadth

standing” “has nothing to do with whether or not [his] own

First Amendment rights are at stake” but instead depends

upon whether the plaintiff “satisfies the requirement of

‘injury-in-fact,’ and whether [he] can be expected satisfacto-

rily to frame the issues in the case.” Id. at 958; see also Gos-

pel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 554

(9th Cir. 2003) (“the requirements of ‘overbreadth standing’

[are] injury-in-fact and the ability to frame the issues in the

case satisfactorily”).

In Secretary of State v. Joseph H. Munson Co., 467 U.S. at

950, for example, a for-profit company that charged charities

MOTHERSHED v. JUSTICES 6339

a fee for raising funds on their behalf brought a First Amend-

ment challenge to a Maryland statute that prevented charities

from paying more than 25% of their funds as expenses.

Although the plaintiff was not itself a charity and did not

allege that its own First Amendment rights were infringed, id.

at 955, the Court concluded that the company had overbreadth

standing to pursue the claim. The Court reasoned that, as a

result of the statute, charities were reluctant to contract with

the plaintiff because it charged fees in excess of 25% and that

the plaintiff’s impetus to challenge the statute was therefore

consonant with the charities’ First Amendment interests. Id.

at 958 (“The activity sought to be protected is at the heart of

the business relationship between Munson and its clients, and

Munson’s interests in challenging the statute are completely

consistent with the First Amendment interests of the charities

it represents.”); see also Clark v. City of Lakewood, 259 F.3d

996, 1010-11 (9th Cir. 2001) (holding that the owner of an

adult entertainment establishment had overbreadth standing to

pursue a First Amendment challenge against provisions of an

ordinance that required the employees of such establishments

to obtain a license because the licensing scheme—although

not directly applicable to the owner—threatened his busi-

ness’s viability).

[9] Here, Mothershed alleges that the prohibitions

embodied in Rules 33(d) and 34 have a chilling effect upon

Arizonans’ purported First Amendment right to consult with

out-of-state counsel. Like the plaintiff in Munson, Mothershed

—though not alleging any First Amendment harm to himself

—has incurred a financial injury because these rules prevent

him from practicing law in the State. Mothershed’s violation

of these provisions has also resulted in his being censured by

the Arizona Supreme Court. Moreover, Mothershed has a

strong interest in obtaining the invalidation of Rules 33(d) and

34 because he desires to practice law in Arizona without

being admitted to the state bar. Mothershed therefore satisfies

our requirements for overbreadth standing because he has suf-

fered an injury-in-fact and can be expected to pursue the First

6340 MOTHERSHED v. JUSTICES

Amendment claim vigorously. See id. at 1011 (concluding

that the owner of the adult entertainment establishment could

“satisfactorily frame the issues in the case” because he “ha[d]

a vested interest in having the [licensing] Ordinance over-

turned”).

2

Although the First Amendment’s applicability in the area of

lawyer-client relations is not well-defined, we recognize that

—at least as a general matter—the “right to hire and consult

an attorney is protected by the First Amendment’s guarantee

of freedom of speech, association and petition.” Denius v.

Dunlap, 209 F.3d 944, 953 (7th Cir. 2000); see also United

Mine Workers of Am. v. Ill. State Bar Ass’n, 389 U.S. 217,

221-22 (1967) (holding that a union had a First Amendment

right to employ a salaried attorney to represent members pur-

suing workers’ compensation claims); DeLoach v. Bevers,

922 F.2d 618, 620 (10th Cir. 1990) (“The right to retain and

consult an attorney . . . implicates . . . clearly established First

Amendment rights of association and free speech.”).

While the Supreme Court has acknowledged that the right

to consult with an attorney falls within the First Amendment’s

purview, the Court has also repeatedly emphasized that “the

States have broad power to regulate the practice of law.” Ill.

State Bar Ass’n, 389 U.S. at 222. The Court has explained

that the “interest of the States in regulating lawyers is espe-

cially great since lawyers are essential to the primary govern-

mental function of administering justice, and have historically

been ‘officers of the courts.’ ” Goldfarb, 421 U.S. at 792.

[10] In order to further its substantial interest in regulating

the legal profession, the State of Arizona may institute reason-

able time, place, and manner restrictions on Arizonans’ First

Amendment right to consult with an attorney. Time, place,

and manner regulations are reasonable provided that “the

restrictions ‘are justified without reference to the content of

MOTHERSHED v. JUSTICES 6341

the regulated speech, that they are narrowly tailored to serve

a significant governmental interest, and that they leave open

ample alternative channels for communication of the informa-

tion.’ ” Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 858 (9th Cir.

2004) (quoting Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989) (internal quotation marks omitted)).

[11] “The principal inquiry in determining content neutral-

ity . . . is whether the government has adopted a regulation of

speech because of disagreement with the message it conveys.

Speech restrictions are content-neutral when they can be justi-

fied without reference to the content of the regulated speech.”

Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1043 (9th

Cir. 2002) (internal quotation marks and citation omitted).

Arizona Supreme Court Rules 33(d) and 34 are content-

neutral because they impose a generally applicable prohibi-

tion on the retention of out-of-state counsel without regard to

the subject matter of the representation. (The rules do not, for

example, prohibit out-of-state counsel from undertaking only

certain categories of representation, such as suits against the

State or against tobacco companies).

[12] A time, place, and manner regulation is narrowly tai-

lored as long as the substantial governmental interest it serves

“would be achieved less effectively absent the regulation and

the regulation achieves its ends without . . . significantly

restricting a substantial quantity of speech that does not create

the same evils.” Galvin v. Hay, 374 F.3d 739, 753 (9th Cir.

2004) (internal quotation marks omitted; alteration in origi-

nal). As already noted, the State of Arizona has a significant

interest in regulating the practice of law within its boundaries,

see Bates, 433 U.S. at 361 (“the regulation of the activities of

the bar is at the core of the State’s power to protect the pub-

lic”), and Supreme Court Rules 33(d) and 34 further that

interest by ensuring that attorneys practicing in the State are

qualified and possess a familiarity with Arizona law. The

rules’ narrow tailoring is further evidenced by the fact that

they do not impose a blanket prohibition on the appearance of

6342 MOTHERSHED v. JUSTICES

out-of-state attorneys in Arizona courts. Rather, they provide

that a qualified out-of-state attorney may be admitted pro hac

vice by an Arizona court.

[13] Lastly, Rules 33(d) and 34 leave open ample alterna-

tive channels through which Arizonans can obtain legal repre-

sentation. Notwithstanding the restrictions on out-of-state

attorneys, Arizonans have access to legal representation from

the thousands of attorneys licensed by the Arizona bar.

[14] Because Arizona Supreme Court Rules 33(d) and 34

are reasonable time, place, and manner regulations of Arizo-

nans’ First Amendment right to retain and consult with a law-

yer, Mothershed’s First Amendment claim fails as a matter of

law.

IV

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.