Petition for Writ of Certiorari — Gallo v. United States District Court

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Q3136 6MAR 24 2004

No.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003

DAVID J. GALLO, Petitioner,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

David J. Gallo

Counsel of Record

12702 Via Cortina, Suite 500

Del Mar, California 92014

Telephone: 858.509.3652

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QUESTIONS PRESENTED

Whether a federally-licensed attorney holds office

during good behavior (as this Court has held), or,

alternatively, whether (as the court of appeal held) an

attorney may be deprived of his or her office on any

grounds which withstand scrutiny under the rational

basis standard (i.¢., where there is “... any conceivable

justification[] ...” for removal from office).

Whether a district court may require membership in

the bar of its forum state as a condition of membership

in its own bar.

Whether a federally-licensed attorney is entitled to

prior notice comporting with the requirements of

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950), as a prerequisite to the entry of an

order by a district court which effects termination of

the attorney’s license to practice before that court.

Whether, and if so under what circumstances, the

posting of notice on an Internet web site may satisfy,

in whole or in part, the notice requirements of

Mullane.

Whether this Court should exercise its inherent

supervisory power to reinstate the law licenses of the

6,796 attorneys who were disbarred by Respondent

court’s General Order 99-15.

(i)

PARTIES TO THE PROCEEDINGS

Petitioner is David J. Gallo, Esq., a member of the bar

of this Court.

Respondent is the United States District Court for the

District of Arizona.

Petitioner questions whether the parties to the

Underlying Action qualify as parties, for purposes of Rule

14.1(b) of the Rules of this Court. None of them participated

in the proceedings in the court of appeals. The following

information is provided for prophylactic purposes:

The plaintiffs in the Underlying Action were:

Tommie L. Bartlett; James M. Byrd; Brandon J. Byrd,

James M. Byrd, Custodian: Whitney S. Byrd, James M. Byrd,

Custodian; Shane C. Byrd, James M. Byrd, Custodian;

Barbara Byrd; Roy E. Carty; Mildred M. Carty; George R.

Cason, Individually And as Trustee of The Cason F amily Trust

Dtd 4/8/88; Darlene Cason, Individually And as Trustee of

The Cason Family Trust Dtd 4/8/88; Henry B. Chenoweth,

Trustee of The Chenoweth Trust Dtd 4/2 1/95; Robert Colvin;

Josephine Colvin; Coy Clements; Christine Davis; Chris Davis;

George Dean; Allan H. Demuth, Trustee of The Demuth

Family Revocable Trust Dtd 10/25/96; Marilynn N. Demuth,

Trustee of The Demuth Family Revocable Trust Dtd 10/25/96;

Elizabeth F. Dunlap, Trustee of The Elizabeth F. Dunlap Trust

Dtd 4/28/92; Otto T. Edmonds; Carolyn Edmonds; Betsy P.

Fisher; Ethel K. Ford; Beau Forstar; Gerald Freligh Sr.;

(ii)

Delphia Freligh; Ruth J. Gartlind, Trustee of the Thelma

Palmiller Revocable Trust; James Gould; Doreen Gould; Lee

Gudgel, Trustee of the Gudgel Revocable Trust; Raydene

Gudgel, Trustee of the Gudgel Revocable Trust; Eric

Harrison; Robin Harrison; William J. Hegeman, Trustee of the

Hegeman Rev. Living Trust Dtd 4/16/96; Debra L. Hegeman,

Trustee of the Hegeman Rev. Living Trust Dtd 4/16/96; Avel

G. Henry; Bonnie Hilton; Leo James; Audrey James; Richard

James; Thomas B. Jeffries, Individuaily and as Trustee of the

Thomas B. Jeffries Trust Dtd 5/10/94, and as Trustee of the

Thomas B. Jeffries Charitable Remainder Unitrust; Thomas F.

Joffee, Trustee of the Joffee Trust Dtd 11/23/93; Helen S.

Joffee, Trustee of the Joffee Trust Dtd 11/23/93: Theresa E.

Maiers, Trustee of the Maiers Living Trust; Raymond

Kinsman; Philip W. Knights, Individually and as Trustee of the

Philip W. and Margaret A. Knights Trust Dated 8/19/1994;

Gerald Lilly; Karen V. Lilly; Ida E. Lovelace; Clifton

Lovelace; Lucille Mackellar, Trustee of the Lucille F.

Mackellar Trust; Lorene M. Mahan; Ruth Martin; Tammy L.

Miller; Carolyn Marshall, Individually and as Trustee for the

Marshall Intervivos Trust Dtd 2/2/98; Robert Marshall,

Trustee for the Marshall Intervivos Trust Dtd 2/2/98; Sybil

Nelson, Trustee of the O.L. Nelson Survivors Trust; L.R.

Nelson, Individually and on Behalf of J & R Auto Salvage;

Linda Ann Nelson; Robert McCray; Dwight Pardue; Navada

Pardue; A. Grace Pearson; and Robert Rachuig.

The defendants in the Underlying Action were:

Arthur Andersen L.L.P., a Limited Liability

Partnership; Thomas D. Grabinski; Deanne Grabinski; Donald

Deardoff; Berry Norwood; Edgar Alan Kuhn; Rebecca C.

Kuhn; Jalma W. Hunsinger; Carole K. Hunsinger; Harold D.

(iii)

Friend; Stephanie B. F riend; Lawrence Dwain Hoover; Beva

J. Hoover; Arizona Southern Baptist Convention, an Arizona

Corporation; Jennings, Strouss & Salmon, P.L.C.; Steve Bass;

Clyde Taylor; Bruce Fischer; Scott McKown; Sharon

Gillespie; Gary D. Cravens; Wes Posey; Carroll D. Burdick;

Curt Wilson; Hicks Smith; Glen Crotts; William Crotts;

Margaret Crotts; and David Sloan.

(iv)

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TABLE OF CONTENTS

Page

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RULE INVOLVED IN THE CASE.................cccccssssceseeees 2

SE ave isisccscsnrssonievionionesianainseiniesnisemeanrionaad 2

REASONS FOR GRANTING THE PETITION ................ 9

I. LIFE TENURE OF THE FEDERAL BAR........... 11

Il. REQUIREMENT OF MEMBERSHIP IN THE

BAR OF THE FORUM STATE.................:::0006 15

Ill. |. NOTICE TO BE AFFORDED PRIOR TO

DISBARMENT / TERMINATION /

REVOCATION / EXPIRATION..................:005 18

IV. INHERENT SUPERVISORY POWER............... 22

CA I oes esis vesvissenentsssccacoriarconrnemmnpoanianannn 23

PIE I ossscnrsvssissnssasssnnennsatsnnenaranensssantnnipannnntoneenen la

| _ ee ene ae Scanleignuan amnesia 32a

PTR Cece ceciccecsncsnssnivinsesincisenonmmrnnienmtmmeniaienss 33a

(v)

TABLE OF AUTHORITIES

Page

Cases:

Ashcroft v. American Civil Liberties Union,

es OT GD vcs ansssascesavnsavivsdeasdoesentzdsvecageotealle 21

Barry v. Barchi, 443 U.S. 55 (1979)........ccccccccccssssscseseeees 18

Bowen v. Georgetown Univ. Hosp.,

a I res tssivcoscucsiovstacaciaamncnece aaa aan 20

Brown v. McGarr, 774 F.2d 777 (7th Cir. 1985).............. 14

Frazier v. Heebe, 482 U.S: 641 (1987).........0.0000.. 16-18, 22

Ex Parte Garland, 71 U.S. 333 (1866)............000.-. 12-15, 17

Giannini v. Real, 911 F.2d.354 (9™ Cir. 1990)..........c.000-. 15-

Gideon v. Cochran, 370 U.S. 908 (1962).........cccccccccsceee: 10

Gideon v. Wainwright, 372 U.S. 335 (1963)............ccc0c:. 10

Mennonite Board of Missions v. Adams,

EY FOO OOD sisinsicsbssictinapanhcatielgmiaadaakoaaes 21-22

Mullane v. Central Hanover Bank & Trust Co.,

BPP Oe. POO UNIO). sense nssnsicseseinancencnneesvssens 6, 9, 19, 21-22

Ex Parte Robinson, 86 U.S. 505 (1873).......... 11, 13-15, 19

Matter of: Ruffalo, 390 U.S. 544 (1968)...........cccccccsccesee: 19

(vi)

Snelling v. Radford, 243 U.S. 46 (1917).........ccccccccecesees 16

Constitutional provisions:

Pea Meg SAU Mey Won ean seanchavcn caneevcainnrchevceseccsacci 21

See ee, Oe OO Bio Seeccntnctisne ee 1]

Statutes:

Title 28, U.S.C., Section 1254(1)......0..0.0..00000. | Rane 2

Bilis 28, U.S.C., Section 1331................00ccsceccsccesecceccosesees 4

Title 28, U.S.C., Section 1334(b)...........cccccccccccccccecsceesesees 4

Title 28, U.S.C., Section 1367..0..0......cccccccccccccccscecceceeseecees 4

Title 28, U.S.C., Section 2071(a)...............0.cccccccsssessessees 20

Title 28, U.S.C., Section 2071()...0......ccccccccscscscseseeees 3, 20

Title 28, U.S.C, Section 2072...............0.cccecceseecseseoseosess. 20

Title 28, U.5.C., Section DOTID). ........:..cccceccecéecssseseccecess 20

(vii)

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003

No.

DAVID J. GALLO, Petitioner,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

David J. Gallo (“Petitioner”) petitions for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

31a) is reported at 349 F.3d 1169. The memorandum order

of the district court (App., infra, 33a-35a) is unpublished.

JURISDICTION

The judgment of the court of appeals was entered 19

November 2003. Petitioner’s petition for rehearing in the

court of appeals was denied by order entered 31 December

2003. (App., infra, 32a.) The jurisdiction of this Court is

invoked under Title 28, U.S.C., Section 1254(1).

RULE INVOLVED IN THE CASE

This case involves Rule 1.5(a) of the Local Rules of the

United States District Court for the District of Arizona, which

provides, in relevant part:

(a) Admission to the Bar of this Court.

Admission to and continuing membership in

the bar of this Court is limited to attorneys

who are active members in good standing of

the State Bar of Arizona. ...

(Emphasis added.)

STATEMENT

Petitioner is not now, nor has he ever been, a member of the

State Bar of Arizona.

On 28 July 1995, Petitioner “... was duly admitted and

qualified to practice as an Attorney in the [United States]

District Court [for the District of Arizona] ...”, as recited on

the Certificate issued by the clerk of that court. The basis for

such admission was Petitioner’s membership in good standing

in another district court, which was all that was required at the

time. (See, App., infra, 2a.)

On 10 September 1999, the United States District Court for

the District of Arizona (“Respondent”) entered its General

Order No. 99-15. General Order No. 99-15 effected

amendments to Respondent’s local rules of court. Among

these amendments was an amendment to Respondent’s Local

Rule 1.5(a), which added the language excerpted at 2, supra.

As explained infra, the courts below have now determined

that the amendment to Local Rule 1.5(a) operated to “divest”

Petitioner and at least 6,795 similarly-situated attorneys of

their law licenses. (See, App., infra, 13a, and 30a; see also,

App. 26a: “... the amendment effectively terminated

[Petitioner’s] membership in the bar ...”)!

Prior to the entry of General Order No. 99-15, Respondent

took the following steps intended to effect the “public notice”

prescribed by Title 28, U.S.C., Section 2071(b): (a) posting

the proposed amendments on Respondent’s Internet web site,

and (b) posting in Arizona federal courthouses notices of

public hearings regarding the proposed amendments. (See,

App., infra, 22a n.7.) Respondent court has conceded that it

“... initiated no other dissemination of the Notice.” (See, S/R

5.)

assuming every member of the State Bar of Arizona were also a member

of the bar of Respondent court, there could have been no more than

22,796 (i.e., 6,796 + 16,000 = 22,796) members of the bar of Respondent

court before the 6,796 affected attorneys were disbarred by operation of

General Order 99-15. (6,796 + 22,796 = 0.2981.)

Importantly, the undisputed evidence establishes: (a) the clerk

of Respondent court was at all times in possession of

Petitioner’s current mailing address in California; (b)

Petitioner was never afforded notice by mail of the proposed

amendments to Local Rule 1.5(a); and (c) Petitioner did not

receive actual notice of the amendment to Local Rule 1.5(a)

until May of 2000 (i.e., eight months subsequent to the

effective date of amendment at issue).

In May of 2000, acting as counsel of record for a number of

elderly victims of the Baptist Foundation of Arizona Ponzi

scheme, Petitioner commenced a civil action (the “Underlying

Action”) in Respondent court.” Immediately prior to the filing

of the initial complaint in the Underlying Action, Petitioner

reviewed the local rules of Respondent Court. It was during

the course of such pre-filing rules review that Petitioner first

acquired actual knowledge of the September, 1999

amendment to Local Rule 1.5. (See, App., infra, 30a.)

Petitioner understood that the amended Local Rule 1.5(a) was

intended to impose a new requirement for future admissions

to the bar of Respondent court. Petitioner did not believe the

amended Local Rule 1.5(a) was intended to effect the

disbarment of previously-admitted attorneys such as

Petitioner, who are not members of the State Bar of Arizona.

Petitioner’s good-faith belief was grounded in Petitioner’s

knowledge that this Court has previously decreed that

attorneys licensed to practice in the federal courts are life

, The plaintiffs in the Underlying Action asserted, inter

alia, various claims under the Securities and Exchange Act of 1934.

Federal subject-matter jurisdiction was grounded in Title 28, U.S.C.,

Sections 1331, 1334(b), and 1367.

tenured officers of the court.

In reliance upon his good-faith belief that he remained licensed

to practice in Respondent court, Petitioner participated in the

filing of the initial complaint in the Underlying Action, and

commenced service as co-counsel for the plaintiffs therein.

On or about 1 September 2000, the clerk of Respondent court

transmitted a letter (the “Clerk’s Letter”) to Petitioner which

informed Petitioner: “... you have not been admitted to

practice in this Court.” (See, App., infra, 3a.) Note that the

Clerk’s Letter did not expressly assert that General Order 99-

15 (amending Local Rule 1.5(a)) had operated to disbar

Petitioner. Nothing in the Clerk’s Letter even acknowledged

that Respondent had, in fact, been admitted to the bar of

Respondent court.’

The Clerk’s Letter warned Petitioner that he would be

“removed as counsel of record”, and “subject to sanctions”

unless he filed an application for admission pro hac vice within

thirty days.

. Reminiscent of George Orwell’s 1984, it is as though

all records of Petitioner’s membership in the bar of Respondent court

have been completely eradicated. (Petitioner remains in possession of his

original certificate of admission.) This Court may take judicial notice that

the official website of Respondent court purportedly posts the names of

“... @ll attorneys admitted since 1960 ...” [emphasis added], viewable by

“status” as: (a) “Active”, (b) “Disbarred”, (c) “Inactive”, (d)

“Suspended”, or (e) “U.S. Attorney”. (See, ex rel.,

http://www.azd.uscourts. gov/azd/attorneys.nsf/Attorneys+Admitted+to

+Practice+-+by+Status?openview&count=2000) Petitioner is not listed

among any of these categories.

In order to protect the interests of his clients in the Underlying

Action, Petitioner promptly filed in the Underlying Action an

Ex Parte Application for Order Clarifying Status of Counsel,

or, Alternatively, for Order Nunc Pro Tunc Granting

Admission Pro Hac Vice (the “Ex Parte Application”). (See,

App., infra, 3a.)

In his Ex Parte Application, Petitioner argued that the

amendment to Local Rule 1.5(a) could not have been intended

to disbar attorneys who had previously been admitted, or,

alternatively, that prior decisions of this Court — which

establish that members of federal bars hold office during good

behavior — would preclude application of the amendment to

previously-licensed attorneys. Petitioner also argued that he

had been entitled to prior notice by U.S. mail, pursuant to

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306

(1950).

importantly, the Ex Parte Application sought the following

relief:

“WHEREFORE, Applicant respectfully

requests that this Court enter an order

determining and declaring that the Applicant

remains a member of the Bar of this Court,

and directing the Clerk of this Court to restore

Applicant’s name to the roll of attorneys

admitted to practice herein;

“ALTERNATIVELY, Applicant

respectfully requests that this Court deem the

instant Application to be an Application for

Admission Pro Hac Vice, Nunc Pro Tunc and

effective as of the date Applicant first

appeared in this action, and that this Court

deem such Application to be made without

waiver of Applicant’s claim that he remains in

all respects a member of the Bar of this

Court.[]”

(See, Ex Parte Application, at E/R 7, lines 13-19.)

On 2 October 2000, the district court entered an order (the

“Collateral Order’) denying the Ex Parte Application;

however, the district court did permit Petitioner to appear pro

hac vice in the Underlying Action. (See, App., infra, 3a.)

Petitioner elected to await entry of final judgment in the

Underlying Action, prior to seeking appellate review of the

Collateral Order. (See, App., infra, 3a.) Established Ninth

Circuit precedent permits a party aggrieved by a collateral

order to elect between immediate appeal, and appeal following

entry of final judgment. (See, App., infra, 4a-Sa.)

The court of appeals did not question the timeliness of

Petitioner’s appeal. (See, App., infra, 4a-Sa.) However, the

court of appeals construed the Ex Parte Application as an

application for admission to the bar of Respondent court (a

construction with which Petitioner strongly disagrees). (See,

App., infra, 7a-8a.)

Under established Ninth Circuit precedent, an application for

admission to the bar of a district court is not subject to review

on appeal. (See, App., infra, 8a.) Finding appellate

jurisdiction to be lacking, the court of appeal reviewed the

merits of the Collateral Order for clear error under Title 28,

US.C., Section 1651(a). (See, App., infra, 11a.)

The court of appeal correctly observed that the effect of

General Order 99-15 (amending Local Rule 1.5(a)) was to”...

divest[] an attorney of his license to practice ...” (See, App.,

infra, 13a.) However, the court of appeal declined to

characterize such divestiture as a “disbarment”. (See, App.,

infra, 13a.) Instead, the court of appeal characterized the

effect of General Order 99-15 as merely causing Petitioner's

law license to become “expired”. (See, App., infra, 24a.)

The court of appeal characterized the Collateral Order as

merely, “... affirm[ing] that [Petitioner] was no longer eligible

for ‘continuing membership’ in the bar ...” (See, App., infra,

lla.)

The court of appeal correctly held that Petitioner’s law license

“ constitute[d] an entitlement subject to constitutional

protection.” (See, App., infra, 14a.) However, the court of

appeal characterized the amended Local Rule 1.5(a) as “... a

retroactive licensing scheme not affecting fundamental rights

...” (See, App., infra, 14a.) The court of appeal thus held that

it would pass scrutiny even if it bore only a “... rational

relationship to a legitimate state interest.” (See, App., infra,

14a.) The exact inquiry conducted by the court of appeal was

whether there was “... any conceivable justification{] ...” for

General Order 99-15. (See, App., infra, 18a n.6; see also,

App., infra, 16a.)*

; In determining the level of scrutiny which it would

apply, the court of appeal drew from both: (a) cases involving

requirements for initial admissions to a bar, and (b) cases involving

retroactive application of economic legislation. (See, App., infra, 14a-

The court of appeal also found that Petitioner (and the other

6,795 affected attorneys) had received adequate notice and an

opportunity to be heard prior to the issuance of General Order

99-15. The court of appeal first reasoned that, because the“...

effect of the law [sic] is to revoke a general class of licenses

..”, the issuance of General Order 99-15 was “purely

legislative” (as opposed to adjudicative). The court of appeal

thus found that neither Petitioner, nor the other 6,795 affected

attorneys, was entitled to notice comporting with the

requirements of Mullane, supra. (See, App., infra, 19a-23a.)°

However, the court of appeal also found it noteworthy that

Petitioner “... had access to the requisite information ...”

because, inter alia, “[t]he amended rules were apparently

posted on the District Court’s website.” (See, App., infra,

22a n.7.)

- REASONS FOR GRANTING THE PETITION

From 1789, this Court has stood as a bulwark between

citizens and tyranny. So much is this Court the crown jewel

of the Republic that it would be difficult to identify one

particular moment as this Court’s finest hour. One prime

candidate would be 4 June 1962. On that day, this Court

16a.)

. Respondent had asserted to the court of appeal that “...

the issuance of separate notices to all affected attorneys would [have]

pose[d] an unreasonable administrative hardship on [the clerk of

Respondent court].” (See, S/R 1.) This Court has previously rejected

such reasoning: “Exceptions in the name of necessity do not sweep away

the rule that within the limits of practicality notice must be such as is

reasonably calculated to reach interested parties.” Mullane, supra, 339

US. at 318.

granted Mr. Clarence Earl Gideon’s petition for a writ of

certiorari. (See, Gideon v. Cochran, 370 U.S. 908 (1962).)

Legend has it that Mr. Gideon had written his petition in his

jail cell, and that he had submitted it to this Court in

handwritten form. Mr. Gideon had asserted to a trial judge:

“The United States Supreme Court says I am entitled to be

represented by Counsel.” Gideon v. Weinwright, 372 U.S.

335, 337 (1963). The Supreme Court of Florida had denied

his handwritten petition for habeas corpus. Gideon v.

Wainwright, 372 U.S. at 337 n.1. This Court granted his

petition.

Promptly upon granting Mr. Gideon’s petition, this Court

appointed counsel to represent him. Gideon v. Wainwright,

372 U.S. at 338. On the merits, this Court held the Sixth

Amendment right to counsel to be a fundamental right

incorporated into the Due Process Clause of the Fourteenth

Amendment. Gideon v. Wainwright, 372 U.S. at 341-345.

Few Americans alive today could imagine an America in which

indigent defendants were prosecuted to judgment without the

benefit of counsel.

The importance of the effective assistance of counsel cannot

be overstated.

In our judicial system, there are certain fundamental

safeguards in place which are designed ensure the fairness of

our judicial system. These include: (a) the life tenure of the

federal bar, and (b) the right to prior notice and a meaningful

Opportunity to be heard. This case involves very serious

threats to both fundamental safeguards.

L. LIFE TENURE OF THE FEDERAL BAR

One of the most important provisions of our Constitution is

the provision of Article III to the effect that “[t]he judicial

Power of the United States ... [may only be exercised by

officers who] hold their Offices during good Behavior ...”

(See, U.S. Const., Art. III, § 1.) The Framers did not confer

life tenure upon the judiciary because they believed its

members would somehow be deserving of privilege. The

Framers held in low esteem the very concept of an aristocracy,

and had no intention to create one. The Framers conferred life

tenure upon the judiciary because they recognized that an

independent judiciary would be sine qua non to a fair judicial

system. (The reasons for this are so obvious that they need

not be enumerated herein.) In other words, the privilege and

immunity of life tenure were not conferred upon the judiciary

for the benefit of its members, but instead for the ultimate

benefit of the citizens who would come before them as

litigants.

Attorneys are no more deserving of special privileges than are

judges. However, just as an independent judiciary is essential

to a fair judicial system, it is essential to the fairness of our

judicial system that members of the bar, as officers of the

court, enjoy certain protections. Accordingly, this Court has

decreed that attorneys, like judges, enjoy life tenure.

“{Attomeys are] ... officers of the court ...

[who] ‘hold their office during good behavior,

and can only be deprived of it for misconduct

> 99

Ex Parte Robinson, 86 U.S. 505, 512 (1873), quoting, Ex

Parte Garland, 71 U.S. 333, 378 (1866). Members of the bar

enjoy life tenure because attorneys who serve at the pleasure

of the judiciary cannot provide effective representation to their

clients. A fortiori, our judicial system could not be fair if

attorneys served at the pleasure of the judiciary.

As this Court has written:

“The profession of an attorney and counsellor

is not like an office created by an act of

Congress, which depends for its continuance,

its powers, and its emoluments upon the will

of its creator, and the possession of which may

be burdened with any conditions not

prohibited by the Constitution. Attorneys and

counsellors ... are officers of the court,

admitted as such by its order, upon evidence of

their possessing sufficient legal learning and

fair private character. .. The order of

admission is the judgment of the court that the

parties possess the requisite qualifications as

attorneys and counsellors, and are entitled to

appear as such and conduct causes therein.

From its entry the parties become officers of

the court, and are responsible to it for

professional misconduct. They hold their

office during good behavior, and can only be

deprived of it for misconduct ascertained and

declared by the judgment of the court after

opportunity to be heard has been afforded.[]

Their admission or their exclusion is ... the

exercise of judicial power ...

“The attorney and counsellor being, by

the solemn judicial act of the court, clothed

with his office, does not hold it as a matter of

grace and favor. The right which it confers

upon him to appear for suitors, and to argue

Causes, is something more than a mere

indulgence, revocable at the pleasure of the

court, or at the command of the legislature.

It is a right of which he can only be deprived

by the judgment of the court, for moral or

professional delinquency.”

Garland, supra, 71 U.S. at 378-379. (Emphasis added.)

Notably, by decreeing that an attorney may not even be

deprived of his or her office “... at the command of the

legislature ...”, this Court foreclosed any argument that a

“purely legislative” (as opposed to adjudicative) governmental

act could divest an attorney of his or her license in the absence

of misconduct or unfitness proven upon full due process.®

Given the apparent strength of the precedent set by this Court

in Robinson and Garland, it is not surprising that, as the court

of appeal correctly noted:

“'.- No jurisdiction has [previously] enacted a

requirement that divests an attorney of his

license to practice, which is the effect of the

The petitioner in Garland successfully challenged: (a)

an Act of Congress which had terminated the law licenses of thousands

of attorneys, and (b) an amendment to a Supreme Court Rule which had

been adopted to implement that Act. See, Garland, supra, 71 U.S. at

374-375.

provision in this case.”

(See, App., infra, 13a.) However, this Court should be aware |

that there is a disturbing trend among some lower courts to

erode the protections of Robinson and Garland. The court of

appeals in this case characterized the Seventh Circuit decision

in Brown v. McGarr, 774 F.2d 777 (7th Cir. 1985) as holding

that a district court may “... revoke[] the licenses of lawyers

who did not have the requisite level of experience ...”

according to criteria prescribed subsequent to their admission

to the bar. (See, App., infra, 21a.)

Other courts have recently promulgated general orders which

purport to prescribe the expiration of federal law licenses.

This Court may take judicial notice that, on 22 January 2001,

the United States Court of Appeals for the Fifth Circuit issued

a general order which prescribes “... a five year term limitation

on existing and initial membership in [that] court’s bar and

establishe[s] a readmission fee.” Said order prescribes that

members of the bar of that court “... must apply for

readmission ... [every] five years ...”, and pay a fee “... for

each new five year period of bar membership.”’

The U.S. District Court for the Southern District of Texas has

recently begun to require that members of its bar submit a

; As far as Petitioner has been able to determine, the

Fifth Circuit’s order of 22 January 2001 bears neither a title, nor an

identifying number. Petitioner first became aware of it when Petitioner

received an invoice for the “readmission fee”. Ms. Majella Sutton, the

Fifth Circuit’s attorney admissions clerk, most graciously guided

Petitioner in his efforts to locate the order of 22 January 2001 on the

Fifth Circuit’s official website. Ms. Sutton may be reached at (504) 310-

7793.

ee A

periodic, “Renewal Questionnaire for Admission to Practice,”

although that district does not yet require a renewal fee.*

The apparently-emerging view among some federal courts that

federal law licenses can “expire” poses an imminent threat to

this Court’s holdings in Robinson and Garland. This Court

should grant the instant Petition to address the conflicts

between the decision of the court of appeal in this case, and

the decisions of this Court in Robinson and Garland.

IL. REQUIREMENT OF MEMBERSHIP IN THE

BAR OF THE FORUM STATE

The foregoing discussion implicitly assumes that a district

court may require membership in the bar of its forum state as

a condition to a mew admission to its own bar. This

assumption will now be examined.

Petitioner believes it was not until the latter decades of the last

century that some district courts began to require membership

in their forum state’s bar as a prerequisite to admission to their

own bar. Numerous district courts currently impose such a

requirement; in fact, the court of appeal speculated that the

“majority” of federal districts impose such a requirement. (See,

App., infra, 13a.) The Ninth Circuit has upheld such

requirements. See, Giannini v. Real, 911 F.2d 354 (9" Cir.

1990).

, Petitioner first became aware of the “Renewal

Questionnaire for Admission to Practice” when Petitioner received notice

by mail. This Court may take judicial notice of the requirement. (See,

ex rel.:

http://www. txs.uscourts. gov/atyadm/renewappinfo. htm)

Petitioner’s research has revealed no decision by this Court

which addresses the question whether a district court may

require membership in its forum state’s bar as a prerequisite to

admission to its own bar. This Court anticipated that question

in Frazier v. Heebe, 482 U.S. 641, 646 n.5 (1987), but the

issue was not presented for decision in that case. It is

noteworthy that this Court has previously held that, where

forum-state bar membership had been required for admission

to a federal bar, that requirement is:

“... exhausted upon admission to [the federal

bar] which [the state bar membership] has

served to secure ... [such that “loss” of the

state law license] ... by any ... cause not

involving unworthiness [i.e., misconduct], ...

would be wholly negligible upon the right to

continue to be a member of the [federal] bar

Snelling v. Radford, 243 U.S. 46, 49 (1917). (Emphasis

added.) Cf: Frazier v. Heebe, 482 U.S. at 647 n.7.

(“[D]isqualification from membership from a state bar does

not necessarily lead to disqualification from a federal bar.”

[Citations omitted.])

The question whether a district court may require membership

in its forum state’s bar as a prerequisite to admission to its

own bar is an important question of federal law that has not

been, but should be, settled by this Court.

The policy issues on both sides of this question are of great

importance, both to the federal bench and to the federal bar.

Requiring membership in the forum state’s bar may have the

effect of ensuring some base level of familiarity with the

substantive law of the forum state; however, such familiarity

could only be relevant in diversity cases. Further, federal

courts are regularly called upon to apply the substantive law

of a state other than their forum state, and local attorneys are

often called upon to litigate under the substantive law of a

sister state.

Requiring membership in the forum state’s bar often deprives

litigants of their choice of counsel. Such requirements have

the effect of Balkanizing the practice of law, and preventing

the most skilled practitioners in the nation from reaching the

cases for which they are best suited (and in which they are

most needed). Cf.: Frazier v. Heebe, 482 U.S. at 650 n.12.

(“A client may have a number of excellent reasons to select a

nonlocal lawyer ...”) This is especially applicable to those

areas where national practice is most appropniate, e.g.,

protection of defrauded investors, criminal defense, civil

rights. As this Court has noted:

“There is a growing body of specialized federal

law and a more mobile federal bar,

accompanied by an increased demand for

specialized legal services regardless of state

boundaries.”

Frazier v. Heebe, 482 U.S. at 647 n.7.

While it may be true that most federal districts permit

admission pro hac vice, an admission held “... as a matter of

grace and favor ...” (Garland, 71 U.S. at 379) is by no means

the equivalent of a license. Admission pro hac vice “... does

not allow the nonresident attorney to practice on the same

terms as a resident member of the bar.” Frazier v. Heebe, 482

U.S. at 650. (Citation and internal quotation marks omitted.)

The potential for discretionary admission pro hac vice is ©...

not a freely available alternative.” [bid., 482 U.S. at 651 n.13.

Indeed, the very purpose of life tenure of the federal bar is to

ensure that counsel cannot be intimidated from taking

unpopular cases, representing unpopular people, or serving as

zealous advocates — even in fora in which the character of the

litigation, or even the litigants, may be received with hostility.

Cf: Frazier v. Heebe, 482 U.S. at 650 n. 12. (Acknowledging

the necessity that “nonlocal” counsel be available to champion

the “... unpopular cause with which local lawyers are reluctant

to be associated.”) While public interest attorneys with

national practices are perhaps the best example of a class of

attorneys in need of the independence guaranteed by a law

license, they are but one among many.

Il. NOTICE TO BE AFFORDED PRIOR TO

DISBARMENT / TERMINATION /

REVOCATION / EXPIRATION

The court of appeal obliquely conceded that Petitioner had a

“ _ legitimate property interest ...” in his license to practice

before Respondent court. (See, App., infra, 14a.)

Petitioner’s research has revealed no decision of this Court

which expressly holds that an attorney has a property interest

in his or her federal license to practice law. Cf: Barry v.

Barchi, 443 U.S. 55, 64 (1979) (holding that the holder of a

license to train horses had “... a property interest in his license

sufficient to invoke the protection of the Due Process

Clause.”) However, this Court has held that, prior to entry of

any order effecting disbarment, an attorney must be afforded

the same due process rights of notice and an opportunity to be

heard which must be afforded a litigant prior to deprivation of

a property interest:

“Before a judgment disbarring an attorney is

rendered he [or she] should have notice of the

grounds of complaint against him [or her] and

ample opportunity of explanation and

defence. This is a rule of natural justice, and

should be equally followed when proceedings

are taken to deprive him [or her] of his [or

her] right to practice his [or her] profession, as

when they are taken to reach his [or her] real

or personal property.”

Robinson, supra, 86 U.S. at 512. (Emphasis added.) An

attorney is entitled to “... fair notice as to the reach of the

[proceedings resulting in disbarment] and [also of] the precise

nature of the charges.” Matter of: Ruffalo, 390 U.S. 544,

552 (1968). (Emphasis added.)

With regard to the manner of giving notice, this Court has

held that notice by ordinary U.S. Mail is the minimum notice

required to satisfy due process (where, as here, the mailing

address of the person to be affected is readily ascertainable).

Mullane, supra, 339 U.S. at 318. In the case at bar, the court

of appeal conceded:

“In most cases an individual would be entitled

to individual notice and an opportunity to be

heard before retroactive extinguishment of his

or her vested property interest. Justice Scalia

has commented that the ‘central’ distinction

between rule-making and adjudication is that

tules have legal consequences ‘only for the

future’. Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 216-217 (1988).

(Scalia, J., concurring).”

(See, App., infra, 23a.) However, the court of appeals found

this case to present a “unique situation”. (See, App., infra,

23a.) In its view, the 6,796 affected members of Respondent

court’s bar were “... unnamed and unspecified persons ...”; it

viewed this case as one regarding “... the regulation of

attorney admissions [sic] ...”. (See, App., infra, 23a.

[Emphasis added.]) Petitioner strongly disagrees that the

6,796 affected members of Respondent court’s bar qualify

as “... unnamed and unspecified persons ...” Petitioner would

also draw a distinction between the power to regulate attorney

admissions, and the power to terminate a license to practice

law.

In the case at bar, notice by mail was not provided. However,

it is questionable whether even notice by mail of the proposed

adoption of General Rule 99-15 would have been sufficient,

insofar as the text of the amended Local Rule 1.5(a) is

susceptible of more than one meaning, and insofar as the

attorneys who would have received such notice (if it had been

given) would presumably be aware that district court rules

must be “consistent with” rules prescribed under Title 28,

U.S.C., Section 2072, and thus may not “... abridge ... any

substantive right.” (See, Title 28, U.S.C., Sections 2071(a),

2072(b).)

The precise question on the merits would be whether the

“public notice” (see, Title 28, U.S.C., Section 2071(b)) issued

prior to the entry of General Order 99-15 — as supplemented

by posting on Respondent court’s Internet website — met the

requirements of due process. It is hardly disputable that the

- posting of notices in Arizona federal courthouses was not “..

reasonably calculated, under all the circumstances, to apprise

...” members of the federal bar who are not members of the

State Bar of Arizona that General Order 99-15 had been

proposed. Cf: Mullane, supra, 339 U.S. at 314.

Prior to the Internet’s achievement of ubiquity,’ it was settled

that where, as here, Petitioner’s address was known to

Respondent court, “[p]ersonal service or mailed notice [was]

required ...” to satisfy due process. Mennonite Board of

Missions v. Aaams, 462 U.S. 791, 799 (1983). While the

concept of notice by mail is as old as the Constitution

(see, U.S. Const., Art. I, § 8), the concept of posting notice

on the Internet is so new that its relationship, if any, to

Mullane has yet to be addressed by this Court. The court of

appeal apparently viewed such posting as relevant to its

analysis, mentioning it at least three times. (See, App., infra,

22a n.7, 29a, 30a.) Petitioner believes this Court should hold

that posting on the Internet is exactly analogous to either

newspaper publication of notice, or notice by posting in public

places. It is well established that such forms of notice do not

satisfy Mullane where the address of the affected party is

known or readily ascertainable. See, Mennonite Board of

Missions, supra, 462 U.S. at 797.

The question whether Petitioner (and the other 6,795

similarly-situated attorneys) were entitled to Mullane-

compliant notice prior to the entry of General Order 99-15,

and the related question whether the posting of notice on

, See, Ashcroft v. American Civil Liberties Union, 535

U.S. 564, 567 n.2 (2002).

Respondent court’s Internet web site may satisfy, in whole or

in part, the notice requirements of Mullane, are important

questions of federal law which have not been, but should be,

settled by this Court. Alternatively, as to the former question,

to the extent this Court may find that the decision of the court

of appeal in this case conflicts with the decisions of this Court

in Mullane and Mennonite Board of Missions, this Court

should grant the instant Petition to address those conflicts.

IV. INHERENT SUPERVISORY POWER

This Court’s decision in Frazier v. Heebe, supra, confirms this

Court’s “... inherent supervisory power ...” to invalidate local

rules of court to advance “... the principles of right and

justice.” Frazier v. Heebe, 482 U.S. at 645. A fortiori, this

Court need not address any constitutional issue (i.e., need not

find any constitutional infirmity) in order to implement its

prior precedents as discussed herein.

This Court may, and should, exercise its inherent supervisory

power to reinstate the law licenses of the 6,796 attorneys who

were disbarred by Respondent court’s General Order 99-15.

In fact, this Court may well determine that it can do so

without granting full review. If this Court simply cannot find

a place on its docket to grant full review of this case, this

Court has the option to effect a summary disposition on the

merits. Such a summary disposition may, if this Court deems

it appropriate, leave Respondent court free to apply Local

Rule 1.5(a) prospectively to new admissions.

AN oad ae ans e ae 4 i

CONCLUSION

The instant Petition for a writ of certiorari should be

granted.

Respectfully submitted,

David J. Gallo

Counsel of Record

12702 Via Cortina, Suite 500

Del Mar, California 92014

Telephone: (858) 509-3652

March 2004

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 01-17332

DAVID J. GALLO, Movant-Appellant,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

Real Party in Interest-Appellee.

Argued and Submitted Dec. 5, 2002.

Submission Vacated Dec. 9, 2003.

Resubmitted Nov. 19, 2003.

Filed Nov. 19, 2003.

Before: BRUNETTI and TASHIMA, Circuit Judges, and

EZRA, [FN*] District Judge.

FN* The Honorable David Alan Ezra, Chief United

States District Judge for the District of Hawai'i,

sitting by designation.

(la)

OPINION

EZRA, District Judge.

Movant-Appellant David J. Gallo ("Gallo") appeals from the

District Court's order that pursuant to an amendment to Rule

1.5 of the Local Rules of the United States District Court for

the District of Arizona ("Rule 1.5"), Gallo no longer may

appear before the District of Arizona without successful

completion of a pro hac vice application.’ In his appeal, he

argues that the rule is unconstitutional and that the District

Court erred in concluding that Gallo had received sufficient

notice of the applicability of the amendment to him and that

the Ninth Circuit should exercise its supervisory power to

direct the District Court to apply Rule 1.5(a) prospectively.

BACKGROUND

Gallo was admitted to the Bar of the United States District

Court for the District of Arizona (the "District Court") on July

28, 1995, under Local Rule 1.5, which allowed non-resident

attorneys to gain admission based on their admission to the bar

of any United States District Court. In September 1999, the

District Court amended Local Rule 1.5 to state: "Admission

to and continuing membership in the bar of this Court is

limited to attorneys who are active members in good standing

of the State Bar of Arizona." United States District Court For

Admission pro hac vice refers to an attorney

who is admitted temporarily to practice in a jurisdiction for

the purpose of participating in a particular case. BLACK'S

LAW DICTIONARY 1227 (7th ed.1999).

the District of Arizona, Local Rules 1.5(a) (2003).

On May 8, 2000, Gallo participated in the filing of Bartlett v.

Arthur Andersen, CIV 00-852-PHX-SMM, in the District

Court of Arizona and served as Plaintiffs' co-counsel of

record. On September 1, 2000, Gallo received a letter, dated

August 30, 2000, from the Attorney Admissions Clerk of the

District Court in which he was informed that he was no longer

admitted to appear generally before the District Court of

Arizona. Specifically, the letter stated: "Your name has

appeared on pleadings filed with this court; however a review

of our files indicates that you have not been admitted to

practice in this Court." The letter gave Gallo until September

29, 2000, to apply for admission pro hac vice to avoid being

removed as counsel of record.

On September 25, 2000, Gallo filed an Ex Parte Application

for Order Clarifying Status of Counsel, or, Alternatively, for

Order Nunc Pro Tunc Granting Admission Pro Hac Vice ("Ex

Parte Application"). On October 2, 2000, the District Court

filed an Order in which it denied Gallo's Ex Parte Application

and allowed Gallo to appear in the District Court pro hac vice.

See Order, filed October 2, 2000 ("October 2, 2000 Order").

Gallo paid the twenty-five dollar fee and was admitted to

appear in the action pro hac vice. Final judgment in the

Bartlett case was entered on September 17, 2001, and on

October 12, 2001, Gallo filed his Notice of Appeal.? We

: In the underlying action, we affirmed in part

and dismissed in part, finding that the investors had failed to

plead their securities fraud claims with sufficient

particularity. See Bartlett v. Andersen, 55 Fed. Appx. 819

(9th Cir.2003).

vacated and deferred submission so that we could receive

briefing from the District Court, the Real Party in

Interest-Appellee. The State Bar of Arizona also submitted an

Amicus Brief.

JURISDICTION

1. Appellate Jurisdiction Under 28 U.S.C. § 1291

Gallo's case is currently before us despite the fact that Gallo

did not commence an official action in the District Court

regarding the effect of the new Local Rules on his ability to

appear before the District Court. Rather, as part of the

proceedings involved in his representation of the Plaintiffs in

Bartlett, Gallo requested the District Court to review the

August 30, 2000 letter informing him that he was not admitted

to practice in the District Court. In his Ex Parte Application,

he sought the District Court's reconsideration of the decision

to apply the amended Local Rules to him.

Gallo argues that the District Court's October 2, 2000 Order

denying his Ex Parte Application was an interlocutory order

and that pursuant to the applicable case law in the Ninth

Circuit, his present appeal of that order is properly before us.

Specifically, Gallo argues that jurisdiction exists because the

interlocutory order constituted a "collateral order" that was

immediately appealable. In support of this proposition, he

cites Estate of Bishop By and Through Bishop v. Bechtel

Power Corporation, 905 F.2d 1272, 1274 (9th Cir.1990)

(finding that "[flor the doctrine to apply, the challenged order

must: (1) conclusively determine the disputed question; (2)

resolve an important issue completely separate from the merits

of the underlying action; and (3) be effectively unreviewable

from a final judgment").

In accordance with Bishop, Gallo argues that the October 2,

2000 Order provided a conclusive determination regarding his

admission status, which was an issue unrelated to the

Plaintiffs’ claims in the underlying Bartlett action. Gallo also

asserts that the Order was unreviewable from the final

judgment in the Bartlett case. Id. (citing Coopers & Lybrand

v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351

(1978)) (affirming that "the purpose of the finality requirement

is to combine in one review all stages of the proceeding that

effectively may be reviewed and corrected if and when final

judgment results") (internal quotation marks and citation

omitted).

Finally, Gallo asserts that even though he did not appeal the

"collateral order" immediately, we still have jurisdiction to

review the District Court's decision because the Order merged

into the final judgment in the underlying case, Bartlett, which

was entered on September 17, 2001. City of Los Angeles,

Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 889

n. 1 (9th Cir.2001)_(citing Hook v. Arizona Department of

Corrections, 107 F.3d 1397, 1401 (9th Cir.1997)) (finding

that if a party does not appeal an interlocutory order when it

becomes immediately appealable, the party still has the right

to appeal the interlocutory order after entry of the final

judgment because the interlocutory order merges into the final

judgment and may be challenged in an appeal from that

judgment). Thus, Gallo contends that his Notice of Appeal

was properly and timely filed on October 12, 2001, and that

we have jurisdiction to review the District Court's decision.

The District Court responds by arguing that as a matter of

law, the District Court's October 2, 2000 Order prohibiting

Gallo from practicing generally before it cannot be reviewed

upon appeal. Jn re Wasserman, 240 F.2d 213, 214 (9th

Cir.1956). The District Court argues that pursuant to

Wasserman this court lacks jurisdiction to review an order

denying a petition for admission to practice before a United

States District Court. In Wasserman, we found that the

Southern District of California's order barring Wasserman

from appearing before it was not a final decision and therefore

it was unappealable. Wasserman had never been admitted to

the bar of the Southern District of California and thus the case

focused on the laws governing applications for admission to

the bar.

Gallo argues that his case is distinguishable because he had

already obtained admission to practice before the District

Court. He asserts that he is not requesting reconsideration of

a denial of a motion for admission based on a "[flailure or

refusal to act favorably upon such an application."

Wasserman, 240 F.2d at 214 n. 1 (internal quotation marks

and citations omitted). Rather, he claims he is seeking redress

for an improper disbarment. In light of the fact that Gallo

previously had been admitted to practice before the District

Court, his situation may not qualify as a run of the mill

application. And, as discussed below, there are constitutional

dimensions to Gallo's situation.

As the District Court stated in its October 2, 2000 Order,

however, under the Local Rules in effect at the time Gallo

sought to practice before the District Court, he no longer met

the eligibility requirements for "continuing membership,"

which required membership in the State Bar of Arizona.

a et

Moreover, unlike some other districts who have revised their

respective local rules governing admission, these Local Rules

do not include a grandfather clause. See, e.g., Local Rules of

Practice for the United States District Court for the District of

Hawai'i, Local Rule 83.1(b) (2002) ("After October 1, 1997,

an applicant for admission to membership in the bar of this

court must be an attorney who is a member in good standing

of the bar of the State of Hawai'i"); Local Rules for the

United States District Court for the Northern District of

California, Local Rule 11-1(b) ("After the effective date of

these rules [Jan. 1, 2001] an applicant for admission to

membership in the bar of this Court must be an attorney who

is an active member in good standing of the State Bar of

California."). Thus, Gallo no longer met the requirements for

membership in the bar of the District Court. As discussed

below, even if Gallo had a property interest in his membership,

the District Court had a legitimate reason for altering the local

rules governing admission such that its amendment passes the

rational basis test. Accordingly, under either analysis, his Ex

Parte Application was necessarily an application for

admission.

Consistent with its interpretation of Wasserman, the District

Court also argues that Gallo's reliance on Estate of Bishop is

misplaced. It correctly points out that in Estate of Bishop the

issue before this court was whether an order denying a motion

to remand to state court was an appealable order. Despite the

detailed analysis of the collateral order exception, the District

Court argues that Estate of Bishop nevertheless precludes a

finding that Gallo's appeal is reviewable because such review

is "confined to whether the federal[district] court would have

had jurisdiction had the case been filed in federal court in the

posture it had at the time of the entry of final judgment."

Estate of Bishop, 905 F.2d at 1275 (internal quotation marks

and citations omitted). The District Court argues that because

Wasserman precludes finding jurisdiction over the substance

of Gallo's appeal, Gallo's reliance on Estate of Bishop is

unavailing?

Upon consideration of the District Court's arguments under

Wasserman and Estate of Bishop, we agree that appellate

jurisdiction to review an order by the District Court denying

admission to practice generally before it is lacking.

irrespective of whether the October 2, 2000 Order constitutes

an interlocutory order on appeal, it is nonetheless an order

issued by the District Court denying Gallo's request for a

waiver from the Local Rules in effect at the time he submitted

filings on behalf of his clients. As this Circuit and other

Circuits have found, the denial of a petition for admission to

a district court bar is neither a final order appealable under 28

U.S.C. § 1291 ("Section 1291") nor an interlocutory order

appealable under 28 U.S.C. § 1292. Wasserman, 240 F.2d at

214-16. Accordingly, we do not have appellate jurisdiction to

review the denial of Gallo's Ex Parte Application to appear

before the District Court.

In his Opening Brief and Reply, Gallo attempts to distinguish

this precedent by characterizing both the initial letter sent to

him on August 30, 2000, and the October 2, 2000 Order as a

disbarment action, rather than a denial of an application for

admission. Accordingly, he argues that such action is

inappropriate in the absence of any findings of misconduct or

: The District Court also notes that the

holding in Hook only applies if the October 2, 2000 Order is

appealable, which it contends it is not.

unfitness, the only grounds, he asserts, upon which an attorney

who has been admitted to a bar may lose his or her license. As

stated above, we recognize that Gallo's situation differs

somewhat from the situation in Wasserman because he

previously was licensed to appear generally before the court.

However, we disagree that the District Court's action

constitutes a disbarment. Gallo's Ex Parte Application was a

petition to the District Court for a waiver of Rule 1.5, or,

alternatively, permission to proceed pro hac vice. The

application constituted a request to practice before the court

despite the existing laws proscribing such appearances. As

discussed, infra, the amended law is constitutional on its face

and as applied by the District Court to Gallo's situation.

As recognized by Gallo, disbarment proceedings generally

involve an ethical violation sufficient to prevent an attorney

from appearing in any capacity before the District Court. All

parties concede that the decision to enforce the amended

version of the Local Rules was not based on any character

determination or other ethical considerations. To the

contrary, Gallo was granted pro hac vice admission. Thus,

the District Court's Order is aptly characterized as a denial of

Gallo's application for a waiver of the Local Rules as

otherwise applicable to him. Accordingly, the law established

in Wasserman applies such that the District Court's October

2, 2002 Order is neither final nor appealable and jurisdiction

under Section 1291 does not exist.

y 5 Petition for Writ of Mandamus Under 28 U.S.C. §

1651(a)

Alternatively, Gallo argues that this court should treat his

October 12, 2001 Notice of Appeal as a petition for writ of

10a

mandamus. In the absence of appellate jurisdiction pursuant to

28 U.S.C. §§ 1291-1292, jurisdiction may exist under 28

U.S.C. § 1651(a). See Miller v. Gammie, 335 F.3d 889, 895

(9th Cir.2003) (en banc) (treating notice of appeal where

appellate jurisdiction was lacking as a petition for a writ of

mandamus), 28 U.S.C. § 1651(a) (2000) ("[A]ll courts

established by Act of Congress may issuc all writs necessary

or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law."). To determine

whether to issue a writ of mandamus, we must consider the

following five factors:

(1) The party seeking the writ has no other adequate means,

such as a direct appeal, to attain the relief he or she desires.

(2) The petitioner will be damaged or prejudiced in a way

not correctable on appeal.

(3) The district court's order is clearly erroneous as a matter

of law.

(4) The district court's order is an oft-repeated error, or

manifests a persistent disregard of the federal rules.

(5) The district court's order raises new and important

problems, or issues of law of first impression.

Allen v. Old Nat'l Bank (In re Allen), 896 F.2d 416, 419-420

(9th Cir.1990) (citing Bauman v. United States Dist. Court,

557 F.2d 650, 654-55 (9th Cir.1977)).

The District Court argues that the third factor is dispositive in

this case such that our review of the District Court's Order for

clear error will determine whether we should issue a writ of

mandamus. Indeed, it is well established in this Circuit that

"[w]hen a district court's decision is correct as a matter of law,

a writ of mandamus should be denied." Jn Re Allen, 896 F.2d

at 420 (citing Rosenfeld v. United States, 859 F.2d 717, 723

(9th Cir.1988)); Survival Sys. Div. of the Whittaker Corp. v.

lla

United States Dist. Court, 825 F.2d 1416, 1418 & n. 1 (9th

Cir.1987). Accordingly, we will review the District Court's

decision for clear error.

STANDARD OF REVIEW

In light of our conclusion that we do not have appellate

jurisdiction over the District Court's decision to deny Gallo's

request to practice generally before it, we decline to review

the District Court's conclusions of law de novo. In the

absence of a direct appeal, we shall treat Gallo's challenge to

the District Court's Order as a petition for writ of mandamus.

Accordingly, we review the District Court's October 2, 2000

Order for clear error as a matter of law. Executive Software

North America, Inc. v. United States Dist. Court, 24 F.3d

1545, 1551-52 (9th Cir.1994).*

DISCUSSION

1. District Court Order

As established above, the District Court's October 2, 2000

Order did not "disbar" Gallo and all attorneys similarly

situated. Instead, it affirmed that Gallo was no longer eligible

for "continuing membership" in the bar of the District Court.

The District Court also determined that the amended Local

Rules governing admission and membership should not be

waived to account for the fact that under the former version

of the rules, Gallo previously had been admitted to practice

, We address, infra, Gallo's assertion that a

finding of clear error is unnecessary because we have

plenary supervisory over the local rules.

12a

generally before the District Court. It determined that

pursuant to the inherent authority of federal district courts to

regulate the practice of law in their forums, the amendments

to the Local Rules were both constitutional on their face and

as applied to Gallo's situation. The District Court declined to

find that at a minimum, the amended Local Rules should be

applied prospectively to recognize and preserve Gallo's

previous admission and membership. The District Court also

determined that Gallo had not suffered a due process violation

but was granted admission to practice before the District

Court of Arizona on a case-by-case basis through the avenue

of pro hac vice.

We now review this decision for clear error and begin our

analysis by considering the constitutional dimensions of Gallo's

claim. Although the District Court declined to address the

constitutional arguments, we believe it is necessary to conduct

a thorough review of whether application of the amended Rule

1.5(a) in this case deprived Gallo of a constitutionally

protected property interest in his license to practice generally

before the District Court of Arizona. We nonetheless arrive

at the same outcome as the District Court because we find that

when analyzed under the applicable constitutional scrutiny, the

District Court's amendment was rationally-related to a

legitimate state interest in ensuring the fitness of lawyers who

appear before it.

We then discuss the remainder of the District Court's opinion

to determine whether the District Court properly appliec' the

amended version of the Local Rules governing admission and

continuing membership in the bar of the District Court. As

suggested in our previous discussion regarding jurisdiction,

Gallo's ability to appear before the District Court subsequent

13a

to the amendments is governed by the laws in effect at the

time of the proceeding. After discussion of this issue, we turn

to the question of whether Gallo received sufficient and proper

notice of the relevant changes in the Local Rules.

2. Constitutionality of Rule 1.5(a)

The amendments to the Local Rules are similar to laws

adopted by the majority of federal district courts. Zambrano

v. City of Tustin, 885 F.2d 1473, 1483 (9th Cir. 1989) (holding

that "[a]dmission to the state bar is the essential determinant

of professional ethics and legal competence") (citing Jn re

Evans, 524 F.2d 1004, 1007 (Sth Cir.1975)). As we

established above, we do not find that the District Court

subjected Gallo to a disbarment action. However, we

recognize that io jurisdiction has enacted a requirement that

divests an attorney of his license to practice, which is the

effect of the provision in this case. Accordingly, we must

consider whether this provision has deprived Gallo of a

constitutionally protected property interest.

A. Substantive Due Process

The Supreme Court has held that property interests derive not

from the Constitution but from "existing rules or

understandings that stem from an independent source such as

state law — rules or understandings that secure certain benefits

and that support claims of entitlement to those benefits." Bd.

of Regents of State Coll. v. Roth, 408 U.S. 564, 577, 92 S.Ct.

2701, 33 L.Ed.2d 548 (1972). "To have a property interest in

a benefit, a person clearly must have more than an abstract

need or desire for it. He must have more than a unilateral

expectation of it. He must, instead, have a legitimate claim of

l4a

entitlement to it." Jd.

We have recognized in a number of contexts that an individual

has a legitimate property interest in his or her professional

license. See Brown v. Smith (In re Poole), 222 F.3d 618, 620

(9th Cir.2000); Sabow v. United States, 93 F.3d 1445, 1456

(9th Cir.1996) (holding that physician has a constitutionally

protected property interest in his or her medical license); see

also Barry v. Barchi, 443 U.S. 55, 64, 99 S.Ct. 2642, 61

L.Ed.2d 365 (1979). Our case law holds that a professional

license, once conferred, constitutes an entitlement subject to

constitutional protection. Accordingly, it may be argued that

in this case, procedural alternatives, including pro hac vice

admission, provide an inadequate substitute for the individual's

previously conferred property interest. See Dittman v. Cal.,

191 F.3d 1020, 1030-31 (9th Cir.1999) (holding that

acupuncturist is entitled to substantive and procedural due

process analysis where California required him to submit his

social security number to renew his state license); Brown v.

McGarr, 774 F.2d 777, 782 (7th Cir.1985) (holding that

attorney entitled to substantive and procedural due process

analysis where general order revoked licenses of trial lawyers

who did not have certain level of trial experience).

Applying the well-established constitutional analysis to this

case, a retroactive licensing scheme not affecting fundamental

rights will pass scrutiny if the scheme bears "a rational

relationship to a legitimate state interest." See Nat'l Ass'n for

the Advancement of Psychoanalysis v. Cal. Bd. of

Psychology, 228 F.3d 1043, 1049 (9th Cir.2000); Schware v.

Bd. of Bar Exam'rs of State of N.M., 353 U.S. 232, 239, 77

S.Ct. 752, 1 L.Ed.2d 796 (1957) (stating that any

qualifications to the state bar "must have a rational connection

15a

with the applicant's fitness or capacity to practice law").°

We applied the rational basis standard in Lupert v. California

State Bar, 761 F.2d 1325 (9th Cir.1985), to address

California's State Bar requirement that students from

unaccredited law schools pass certain examinations. We held

that the requirement did not violate equal protection because

it served the legitimate purpose of protecting students from

pursuing a profession for which they did not qualify and aided

persons in assessing the quality of training provided by the

schools. Jd at 1328-29. We held likewise in National

Association for the Advancement of Psychoanalysis, 228 F.3d

1043. Plaintiffs argued that California's licensing scheme

violated their due process rights by prohibiting them from

assuming the title "psychologist." Jd at 1051. We held that

the licensing scheme, which contained certain educational

requirements, was-rationally related to California's interest in

protecting the mental health and safety of California's citizens.

Id.

From Lupert and National Association for the Advancement

5 See also Austin v. City of Bisbee, Ariz., 855

F.2d 1429, 1436 (9th Cir. 1988) ("[T]he retroactive

application of economic legislation meets the test of due

process simply if ‘retroactive application of the legislation is

itself justified by a rational legislative purpose.' ") (quoting

Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467

U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984));

Giannini v. Real, 911 F.2d 354, 359 (9th Cir. 1990)

(holding that the standard of review is rational basis review

because there is no fundamental right to practice law and

lawyers are not a suspect class).

l6a

of Psychoanalysis emerges the long-standing rule that any

"conceivable basis" will justify the constitutionality of a

licensing scheme not affecting fundamental rights. Lupert,

761 F.2d at 1328. Federal courts have inherent and broad

regulatory authority to make rules respecting the admission,

practice, and discipline of attorneys in the federal courts.

Robinson, 86 U.S. (19 Wall.) 505, 22 L.Ed. 205; Garland, 71

US. (4 Wall.) 333, 18 L.Ed. 366. Courts have specific

authorization under 28 U.S.C. § 2071, which states in

pertinent part:

(a) The Supreme Court and all courts established by Act of

Congress may from time to time prescribe rules for the

conduct of their business. Such rules shall be consistent

with Acts of Congress and rules of practice and procedure

prescribed under section 2072 of this title.

(b) Any rule prescribed by a court, other than the Supreme

Court, under subsection (a) shall be prescribed only after

giving appropriate public notice and an opportunity for

comment. Such rule shall take effect upon the date specified

by the prescribing court and shall have such effect on

pending proceedings as the prescribing court may order.

28 U.S.C. § 2071 (emphasis added).

Historically, however, "the licensing and regulation of lawyers

has been left exclusively to the states and the District of

Columbia within their respective jurisdictions." Leis v. Flynt,

439 U.S. 438, 442, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979).

The states supply not only the qualifications for admission to

practice and the standards of professional conduct but also the

guidelines and machinery for the discipline of lawyers. Id. The

State Bar of Arizona, under the authority and supervision of

the Arizona Supreme Court, administers Arizona's system of

attorney admission and regulation. Ariz. R.S.Ct. 31. The

17a

State Bar oversees the admission of attorneys, monitors

continuing legal education, and maintains the integrity of the

profession. Ariz. R.S.Ct. 42, 45, 47.

In Russell v. Hug, 275 F.3d 812 (9th Cir.2002), we held that

district courts may rely on the infrastructure provided by state

bar associations in meeting their own needs for monitoring

attorney admission and practice in the federal courts. The

pertinent issue in Russell concerned the constitutionality of a

general order issued by the Northern District of California that

required private attorneys selected to represent indigent

defendants to be members of the California State Bar. We

upheld the requirement under the equal protection clause

because the rule served the district court's legitimate interest

"in ensuring a uniform minimum level of competence for

lawyers." Id. at 819. We stated:

Because there are more than fifty bar examinations in

the United States, the minimum standard of

competence required to be a ‘lawyer’ arguably varies

considerably among the States. Requiring membership

in the California Bar allows the Northern District of

California to be sure that all attorneys ... are at least

capable enough to clear the standard required in

California--a standard with which the Northern

District is familiar, and a standard that is quite possibly

higher than that of many other states.

Id.

The Russell court also concluded that the Northern District's

requirement that attorneys be members of the bar in "good

standing" was rationally related to the federal court's

legitimate interest "in policing standards of ethical conduct of

the lawyers who practice law on the Indigent Panel." Jd. at

18a

820. We stated that "the California bar membership

requirement makes discipline easier for the Northern District

because the California Bar provides the Northern District with

a disciplinary mechanism complementary to its own." Jd.

Finally, the court noted that the adoption of California's

requirements permitted the district court to bring allegations

of professional misconduct to the attention of the California

State Bar. Jd.

Rule 1.5(a) is similar to the general order at issue in Russell

In both cases, the local rule serves the legitimate interest of

ensuring that all attorneys practicing before the courts "clear

the standard required" by the respective state bar

associations.* Jd. at 819. In its Amicus Brief, the Arizona

State Bar argues that because the District Court does not have

its own administrative staff to supervise and regulate the

conduct and ethics of attorneys who appear before it, it relies

heavily upon the resources of the State Bar to impiement these

rules. Absent the Arizona State Bar's assistance in

undertaking the administrative steps necessary to enforce the

regulations governing attorney conduct, questions of

misconduct may never properly come before the District

Court.

’ Although the record does not indicate that

the District Court amended Local Rule 1.5(a) for the

explicit purpose of ensuring quality attorney representation,

it is well-established that rational basis scrutiny permits the

court to consider any conceivable justifications for enacting

the law. See Nat'l Ass'n for the Advancement of

Psychoanalysis, 228 F.3d at 1050.

19a

Indeed, the standard for admission in both Anzona and

California may well exceed that required in other states.

Nonetheless, Rule 1.5(a) serves the court's legitimate interest

in simplifying the disciplinary process. No longer must the

District Court refer wayward lawyers to out-of-state bar

associations. The amended version of Rule 1.5(a) permits the

District Court to limit disciplinary referrals to the Arizona

State Bar. The Arizona State Bar also provides a number of

procedures that permit the District Court to file disciplinary

complaints free from public exposure. If the District Court

files a complaint, the Arizona State Bar brings the complaint

on behalf of the District Court. The District Court is not

guaranteed the same privacy when referring attorneys to other

state bar associations. This special procedure provides an

additional legitimate justification for amending Rule 1.5(a).

In light of this analysis, we conclude that the retroactive

application of the Arizona Bar requirement does not violate

Gallo's substantive due process rights because it is justified by

the rational purpose of streamlining and perfecting the

regulation of attorney admission in the Arizona District Court.

B. Procedural Due Process

Gallo also contends that the new licensing scheme resulted in

the deprivation of his property without adequate notice and

opportunity to be heard. Whether an affected party is entitled

to individual notice and a pre- deprivation hearing depends

upon the character of the action. When the action is purely

legislative, the statute satisfies due process if the enacting

body provides public notice and open hearings. Texaco v.

Short, 454 U.S. 516, 536, 102 S.Ct. 781, 70 L.Ed.2d 738

(1982); 28 U.S.C. § 2071(b). "[I]}t has never been suggested

20a

that each c:t'zen must in some way be given specific notice of

the impact of a new statute on his property before that law

may affect his property rights." Bi-Metallic Inv. Co. v. State

Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 60

L.Ed. 372 (1915) (holding that individual notice is not

necessary if the government imposes a "rule of conduct [that]

applies to more than a few people"); Halverson v. Skagit

County, 42 F.3d 1257, 1261 (9th Cir. 1994).

When the government action is adjudicative, however, due

process requires "notice reasonably calculated, under all

circumstances, to apprise interested parties of the pendency of

the action and afford them an opportunity to present their

objections." Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950);

Londoner v. Denver, 210 U.S. 373, 385, 28 S.Ct. 708, 52

L.Ed. 1103 (1908) (finding procedural due process violated

where law affected a relatively small number of persons).

Indeed, "the line between legislation and adjudication is not

always easy to draw," LC & S, Inc. v. Warren County Area

Plan Comm'n, 244 F.3d 601, 603 (7th Cir.2001). However,

this is not one of the more difficult cases. The three primary

considerations are: (1) whether the government action applies

to specific individuals or to unnamed and unspecified persons;

(2) whether the promulgating agency considers general facts

or adjudicates a particular set of disputed facts; and (3)

whether the action determines policy issues or resolves

specific disputes between particular parties. United States v.

Fla. E. Coast R.R. Co., 410 U.S. 224, 244-46, 93 S.Ct. 810,

35 L.Ed.2d 223 (1973); Harris v. County of Riverside, 904

F.2d 497, 501 (9th Cir. 1990); McGarr, 774 F.2d at 780.

2la

In McGarr, the Seventh Circuit considered a general order

issued by the Illinois District Court that required trial

attorneys to have a certain level of trial experience. 774 F.2d

at 779. The rule revoked the licenses of those lawyers who

did not have the requisite level of experience. As in this case,

the plaintiff claimed that because the rule changed the

admission requirements after he had qualified for admission,

the local order effectively "disbarred" him. Jd. at 780. Similar

to the reasons set forth by the District Court in this case, the

Seventh Circuit rejected the plaintiff's claim, stating:

Disbarment ... is a punishment or penalty imposed on

the lawyer. A court conducting a disbarment

proceeding must determine for itself the facts of the

attorney's conduct and whether that conduct had been

so grievous as to require disbarment. Thus, the

ultimate result of a disbarment proceeding is a finding,

based upon the conduct and actions of an individual

attorney, that the individual attorney is unfit. Unlike

a disbarment proceeding focused upon specific

incidents of misconduct by an individual attorney, the

district court's trial bar rules were adopted in response

to fact finding that was not focused on individual

attorneys.

Id. (internal quotation marks and citations omitted).

The present case is indistinguishable. The requirement that all

attorneys be members of the Arizona Bar was adopted to

streamline the District Court's attorney regulation procedures.

The effect of the law is to revoke a general class of licenses,

but unlike a disbarment proceeding, the ground for doing so

is not individual attorney misconduct. Cf Ohio Bell Tel. Co.

v. Pub. Util. Comm‘n, 301 U.S. 292, 302-05, 57 S.Ct. 724, 81

L.Ed. 1093 (1937) (holding that a retroactive rate

22a

determination based solely on facts about one supplier is

adjudicative). Rule 1.5(a) is directed at the legitimate

government purpose of improving the method and means of

attorney regulation in the federal district courts, and it

attempts to achieve this goal without targeting individual

misconduct.

Since the amended rule affects a large number of people, as

opposed to targeting a small number of individuals based on

individual factual determinations, Gallo's claim that he is

entitled to individual notice and an opportunity to be heard

fails because the amended legislative rule does not "give rise

to constitutional procedural due process requirements."’

Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161,

166 (9th Cir.1993); see also Harris, 904 F.2d at 502 (holding

that no individual notice and hearing required where county

decisions affect large numbers of people); McGarr, 774 F.2d

at 780.

' As discussed, infra, Gallo does not contend

that he received inadequate public notice of the pending

changes to Rule 1.5(a). The District Court issued notice of

public hearings on the proposed amendments on May 19,

1999. The amended rules were apparently posted on the

District Court's website. On July 12, 1999, the District

Court held two public hearings regarding the amended rule

at which several interested parties expressed their concerns

with Rule 1.5. Gallo had access to the requisite information

and his "rights [were] protected in the only way that they

can be in a complex society, by their power, immediate or

remote, over those who make the rule." Bi-Metallic, 239

US. at 445, 36 S.Ct. 141 (1915).

23a

In most cases an individual would be entitled to individual

notice and an opportunity to be heard before retroactive

extinguishment of his or her vested property interest. Justice

Scalia has commented that the “central distinction" between

rule-making and adjudication is that rules have legal

consequences “only for the future." Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 216- 17, 109 S.Ct. 468, 102

L.Ed.2d 493 (1988) (Scalia, J., concurring). Nevertheless, this

case presents the unique situation in which the rule, although

having that "central distinction" of retroactivity, resembles

legislation in every other way. Namely, (1) the government

action applies to unnamed and unspecified persons, (2) the

District Court considered general rather than particular facts,

and, (3) rather than resolving specific disputes between

particular parties, the action determines policy issues

regarding the regulation of attorney admissions in the federal

courts.

For these reasons, we conclude that even when subjected to

a constitutional analysis, the balance of factors weighs in favor

of finding that the enactment of Local Rule 1.5(a) is a

legislative act such that Gallo's claim fails. Even though he

arguably was deprived of a vested property interest, the rule

bears a rational relationship to legitimate government interests.

3. Applicability of Local Rule 1.5

As discussed above, we do not characterize the actions taken

by the District Court as an unconstitutional disbarment. It is

the well established law that a court's power to disbar "can

only be exercised where there has been such conduct on the

part of the parties complained of as shows them to be unfit to

be members of the profession." Ex Parte Robinson, 86 U.S.

24a

(19 Wall.) 505, 512, 22 L.Ed. 205 (1873); see also Ex Parte

Garland, 71 U.S. (4 Wall.) 333, 379, 18 L.Ed. 366 (1866).

Here, Gallo is guilty of no misconduct and the District Court's

finding that he could not appear generally before it was not the

result of any disciplinary action. Instead, his ability to practice

generally before the District Court expired as a result of the

amendments to the laws governing membership. Accordingly,

the District Court committed no clear error by finding that the

amendments did not "inherently interfere with [Gallo's] ability

to practice before this Court." October 2, 2000, at 2. Gallo

still has the right to practice before the District Court by

seeking admission to the State Bar of Arizona or by requesting

on a case-by-case basis that he be allowed to appear before the

District Court pro hac vice.

Having resolved that the District Court did not act to disbar

Gallo, we address Gallo's additional argument that because he

gained admission at one point in time, he cannot now be

denied the right to practice generally before the District Court

because the qualifications for admission have changed. He

characterizes this argument as one for prospective application

of Rule 1.5. Gallo cites the Supreme Court's holding in

Selling v. Radford, which held that where the prerequisite to

admission to the Bar of the Supreme Court was:

membership of the Bar of the court of last resort of a

state ... its effect is exhausted upon admission to this

Bar which it has served to secure, — a result which

becomes manifest by the consideration that although

the membership of tlie Bar of the court of last resort of

a state, after admission here, might be lost by change

of domicil from one state to another, if so provided by

the state law or rule of court, or by any other cause

not involving unworthiness, such loss would be wholly

25a

negligible upon the right to continue to be a member

of the Bar of this court.

Selling v. Radford, 243 U.S. 46, 49, 37 S.Ct. 377, 61 L.Ed.

585 (1917).

Gallo interprets this holding to stand for the proposition that

upon admission to practice before the District Court, no

change in the admission criteria may act to deny him his right

to continue as a member of the bar. He asserts that his

membership in the District Court's bar may only be revoked

upon a finding of "unworthiness" or if he is "unfit" to be a

member of the bar. In support of this argument, Gallo cites a

previous opinion by this court, Brown v. Smith (In re Poole ),

222 F.3d 618 (9th Cir.2000). However, this case involved

matters of representation that occurred before the

amendments to the Local Rules. /d. at 621. Asa result, the

holding neither addressed nor ruled definitively upon the

issues presented in this case.

In Jn re Poole, we affirmed that "a federal court has the power

to control admission to its bar and to discipline attorneys who

appear before it." Jd. at 620 (internal quotation marks and

citation omitted). We also stated that "[o]nce federal

admission is secured, a change in circumstances underlying

state admission ...*» ‘wholly negligible on the right to practice

before a federal ~ urt.". Jd (emphasis added) (internal

quotation marks and citation omitted).

Unlike Jn re Poole, here we are asked to address the

implications of a change in circumstance underlying federal

admission. The holding in Jn re Poole does not address this

issue. Moreover, it focused on the implications of disbarment

from the federal bar as a result of disbarment from practicing

26a

before a state court. Jd (finding that "[w]hile a lawyer is

admitted into a federal court by way of a state court, he is not

automatically sent out of the federal court by the same route")

(internal quotation marks and citations omitted). In light of

the above, the holding of Jn re Poole is neither binding nor

relevant to our analysis.

Although the Local Rules promulgated by the District Court

prior to 1999 allowed admission into the Arizona federal bar

based on admission to federal bars located in other states,

there is no guaranteed right to such admission. Zambrano,

885 F.2d at 1483. As discussed, supra, the District Court may

revoke such admission if it is rationally related to a legitimate

purpose. Moreover, it is well established that admission to a

bar of a district court usually requires that the applicant be a

member in good standing of the bar of a state's highest court.

Id. Such a requirement is well within the District Court's rule

making power and as established, supra, does not violate any

constitutional right. Giannini, 911 F.2d at 359.

Absent any persuasive argument to the contrary, we therefore

find that the District Court properly acted within its rule

making authority under Section 2071 to alter its rules of local

practice by requiring members to obtain membership in the

State Bar of Arizona. Although the amendment effectively

terminated Gallo's membership in the bar of the District Court,

such a result, though unfortunate, violates no constitutional or

statutory provision. Moreover, he may qualify for general

admission by joining the State Bar of Arizona or by appearing

on a pro hac vice basis.

We recognize that the pro hac vice option requires the

attorney seeking such admission to associate with a member

a ee

27a

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. Frazier v. Heebe,

482 U.S. 641, 650-51, 107 S.Ct. 2607, 96 L.Ed.2d 557

(1987). 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 “ae 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. Russell, 275 F.3d at 820.

As set forth above, we find that applying the amended Rule

1.5 to Gallo is consistent with the District Court's fulfillment

of its responsibilities. The court is unpersuaded by Gallo's

: see In re Evans, 524 F.2d 1004, 1007

(Sth Cir.1975) (nding that "[a]n applicant for admission

pro hac vice who is a member in good standing of a state

bar may not be denied the privilege to appear except on a

showing that in any legal matter, whether before the

particular district court or in another jurisdiction, he has

been guilty of unethical conduct of such a nature as to

justify disbarment of a lawyer admitted generally to the bar

of the court") (internal quotation marks and citations

omitted); U.S. v. Ries, 100 F.3d 1469, 1472 (9th Cir.1996)

(finding that "[i]n denying a pro hac vice application, the

judge must articulate his reasons, for the benefit of the

defendant and the reviewing court. [M]echanistic

application of rules limiting such appearances is improper.")

(internal quotation marks and citation omitted).

28a

argument that interpreting the Local Rules as did the District

Court would result in a situation in which attorneys who gain”

admission to the District Court but let their Arizona state

licenses lapse do not risk losing their licenses to practice

before the District Court. This assertion is simply without

merit, as the amended Local Rules specifically require that

only attorneys in good standing with the Arizona State Bar

may be members of the bar of the District Court.

Gallo argues alternatively that the amended version of Rule

1.5 should apply only to new admissions occurring subsequent

to its effective date. As set forth above, we recognize that

some districts do include grandfather clauses. See supra

discussion 16289-91. Although it was well within the

authority of the District Court to enact such a clause, it is not

required. In the absence of any grounds upon which to infer

such an intent, we refrain from doing so. As the District

Court noted, the language of Section 2071 states: "Such rule

shall take effect upon the date specified by the prescribing

court and shall have such effect on pending proceedings as the

prescribing court may order." 28 U.S.C. § 2071(b). In

contrast to this language allowing the District Court to

prescribe rules as it sees fit, Gallo has presented no legal

grounds for finding that the District Court erred in applying

the amended Rule 1.5 to prohibit him from appearing

generally before it.

4. Adequacy of Notice

In his appeal, Gallo also argues that he did not receive proper

notice of the consequences he would face as a result of the -

pertinent amendment to Rule 1.5. Before denying an attorney

admission or readmission to the bar of the District Court on

29a

the basis of character, due process requires that the District

Court give the applicant notice, the reasons for its action, and

an opportunity to respond. Jn re Ruffalo, 390 U.S. 544, 550,

88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). As we have repeatedly

emphasized, all parties are in agreement that Gallo committed

no act of misconduct that led to the decision of the District

Court to terminate his license to practice generally before it.

He has not been subjected to a disbarment proceeding, which

we agree would trigger the need for a judicial determination

of misconduct.

Section 2071(b) includes the following provision for notice:

"Any rule prescribed by a court, other than the Supreme

Court, under subsection (a) shall be prescribed only after

giving appropriate public notice and an opportunity for

comment." Accordingly, we find that the following actions

taken by the District Court satisfy any due process

requirements that may exist.

On July 12, 1999, the District Court held hearings on the

amendments to the Local Rules. Supplement to Record, at

4-6. After the adoption of the amendments, the District Court

states that it promulgated notice via postings on its website, as

well as through hard copy notices in its intake offices. The

District Court also represented to this court that it sent

mailings to out-of-state attorneys admitted prior to September

15, 1999, who had made an appearance and/or requested a

certificate of good standing since that time. For a three-month

period prior to enacting the amendments, the District Court

maintains that notice of the amendments was included in

footnotes placed on all cover sheets used to transmit orders

See discussion, supra, Section 2.

30a

and judgments issued in civil and criminal cases. Finally, in

January 2000, the District Court made a presentation to the

Federal Bar Association luncheon in Phoenix. At all times, the

proposed amendments, and then the final rules, were available

on the District Court's website.

In light of these actions, we do not agree with Gallo's

assertion that all 6,796 attorneys should have received notice

by U.S. mail.’° There is no evidence that the amendment

resulted from any specific disciplinary proceedings against any

of the affected 6,796 attorneys.

Gallo also admits that prior to commencing an action in the

District Court, he reviewed the Local Rules and thus had

actual notice of the amendments. Moreover, the Attorney

Admissions Clerk informed Gallo of his status in the August

30, 2000 letter. Finally, the District Court reviewed and

considered the merits of Gallo's claims in his Ex Parte

Application; it issued an order accordingly. The District

Court's compliance with the opportunity for comment

provision in Section 207 1(b), its promulgation of notice of the

amendments, the notice Gallo admits he received, and the

opportunity for hearing that Gallo received from the District

Court satisfy any due process requirements Gallo argues he

deserves.

The above forms of notice notwithstanding, Gallo requests

that we notify each active federal judge in the District Court

of our decision. Appellant's Opening Brief ("AOB"), at 22-23.

nd Were this in fact a "mass disbarment," as

characterized by Gallo, we might well be inclined to find

otherwise.

3la

However, such notice is also unnecessary.

S. Supervisory Power to Modify Local Rule 1.5

Gallo argues that because this court has plenary supervisory

power over the rules adopted by the District Court, we can

alter or dispense with rules we find unconstitutional on their

face or as applied. Frazier, 482 U.S. at 645-46, 107 S.Ct.

2607. This court's supervisory powers are generally exercised

over rules implemented pursuant to Section 2071. Russell,

275 F.3d at 821. However, this power is not unbounded and

may not be exercised absent a clear basis in fact and law. Jd.

(citing United States v. Gatto, 763 F.2d 1040, 1046 (9th

Cir.1985)).

As discussed above, we reject Gallo's characterization of the

District Court's enactment of the amendments as a revocation

of his life tenure as a member of the bar. Moreover, as per

our analysis of the constitutional implications of the District

Court decision, we find that it was rationally related to a

legitimate interest such that it passes constitutional scrutiny.

AFFIRMED.

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APPENDIX B

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 01-17332

DAVID J. GALLO, Movant-Appellant,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

Real Party in Interest-Appellee.

Filed Dec. 31 2003.

ORDER

Before: BRUNETTI and TASHIMA, Circuit Judges, and

EZRA, District Judge.[]

Judge Tashima has voted to deny the petition for

rehearing en banc and Judges Brunetti and Ezra so

recommend. The full court has been advised of the petition

for rehearing en banc and no judge of the court has requested

a vote on en banc rehearing. See Fed. R. App. P. 35(f).

The petition for rehearing en banc is denied.

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APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

No. CIV 00-852-PHX-SMM

TOMMIE L. BARTLETT, ef ai.,

Plaintiffs,

Vz.

ARTHUR ANDERSEN, L.L.P., et al.,

Defendants.

Filed Oct. 2, 2000.

ORDER

The Court has reviewed and considered the Ex parte

Application for Order Clarifying the Status of Counsel, or

Alternatively, for an Order Nunc Pro Tunc Granting

Admission Pro Hac Vice filed by David J. Gallo (Applicant).

Applicant seeks an Order stating that he remains a member of

the bar of this Court.

Applicant was admitted to practice before the bar of

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this Court on August 7, 1995, under then-Local Rule 1.5.

Then-Local Rule 1.5 allowed non-resident attorneys to gain

admission to practice based on their admission to the bar of

the United States District Court. On September 15, 1999, the

United States District Court for the District of Arizona

formally adopted revised Local Rules, which contained

substantial changes to Local Rule 1.5. Local Rule 1.5(a) now

states in relevant part, “[a]dmission to and continuing

membership in the bar of this Court is limited to attorneys who

are active members in good standing of the State Bar of

Arizona.” Similarly, Local Rule 1.5(b) also states, “Except as

herein otherwise provided, only members of the bar of this

Court shall practice in this District.”

It is well established that courts have the inherent

authority to regulate the practice of law in their forums: “One

of the inherent powers of any federal court is the admission

and discipline of attorneys practicing before it.” In re Corn

Derivatives Antitrust Litigation, 748 F.2d 157, 160 (3d

Cir. 1984); see also Abdallah v. Pileggi, 914 F. Supp. 1115,

1118 (D.N.J. 1996). District Court have “not only an inherent

power but a statutory right to promulgate rules with respect

to admissions of attorneys to practice at its bar.” Laughlin v.

Cephane, 77 F. Supp. 105-06 (D.D.C. 1947).

In acknowledgment of the need for out-of-state

attorneys to have a means for making limited appearances,

Local Rule 1.5(b)(3) established a pro hac vice provision. This

provision is available to any non-resident attorney who wishes

to appear in an action filed in this Court. This provision clearly

applies to Applicant’s situation and, thereby, provides a

reasonable means for Applicant to practice in this District.

35a

Applicant is concerned that the Clerk of Court may

have deleted his name from the roll of attorneys licenced to

practice before this Court and that such action occurred

without due process. The change in the Rule neither resulted

from a disciplinary action against Applicant nor arose out of

a complaint filed against Applicant. Moreover, the Rule

change does not inherently interfere with Applicant’s ability to

practice before this Court.

THEREFORE, IT IS ORDERED denying

Applicant’s ex parte Application for Order Clarifying Status

of Counsel, or, Alternatively, for Order Nunc Pro Tunc

Granting Admission Pro Hac Vice. Pursuant to Local Rule

1.5(b)(3), Applicant may seek pro hac vice admission.

Because Applicant has already submitted a completed pro hac

vice application attached as an exhibit to this Application,

Applicant must simply submit the requisite $25.00 fee for pro

hac vice admission.

DATED this 27 day of September, 2000.

/s/ Stephen M. McNamee

United States District Judge

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