Opposition Brief — Gallo v. United States District Court

Ce

No. 03-1366 wre

“Suprame Court, U.S.

OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

,

a

DAVID J. GALLO,

Petitioner,

Vv.

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

Respondent.

ith

Vv

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

eS

Vv

RESPONDENT’S BRIEF IN OPPOSITION

2

_

DANIEL J. MCAULIFFE

Counsel of Record

ANDREW M. JACOBS

SARAH K. JEZAIRIAN

SNELL & WILMER, L.L.P.

One Arizona Center

Phoenix, AZ 85004-2202

(602) 382-6000

Gf BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Should this Court refuse to grant a writ of certio-

rari where Petitioner has not shown that the decision

entered by the Court of Appeals in this case is in conflict

with either decisions by any other Court of Appeals or

relevant decisions of this Court?

2. Was Local Rule 1.5 of the United States District

Court for the District of Arizona, as amended on Septem-

ber 15, 1999, constitutional as applied to Petitioner?

3. Should this Court refuse to grant a writ of certio-

rari where Petitioner has not shown that the decision

entered by the Court of Appeals calls for an exercise of this

Court’s supervisory power?

li

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioner is David J. Gallo, an individual. Respon-

dent is the United States District Court for the District of

Arizona.

ill

TABLE OF CONTENTS

Page

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sa vcs cakovncalySetsstseurssoukussersesansssconsonshiveens 1

STATUTES AND RULES INVOLVED ..........00.....0.000 1

STATEMENT OF THE CASE .....................sessssesseseseseees 2

al ickdaihechakanisveniadasandsarweceaviisasentieessds 4

I. THIS COURT SHOULD NOT ISSUE THE

II.

WRIT, AS GALLO HAS FAILED TO SHOW

EITHER CONFLICT AMONG THE COURTS

OF APPEAL OR CONFLICT BETWEEN THE

DECISION OF THE COURT OF APPEALS

AND ANY DECISION OF THIS COURT.........

A. Neither the Decision of the Court of Ap-

peals, Nor the District Court’s Decision To

Enact Revised Local Rule 1.5(a), Conflict

With Any Decision of Any Other Court of

B. The Decision of the Court of Appeals Does

Not Conflict With Any Decision of This

NINE el ori acccc ccd bccachehehaeencdincenninenmaritians

LOCAL RULE 1.5(a) IS A LEGITIMATE EXER-

CISE OF THE DISTRICT COURTS RULEMAK-

ING AUTHORITY, AND IS CONSTITUTIONAL

Be Fe ND BP IED ooo sons cccssccscissvccninscccece

A. Congress Authorized the District Court to

Promulgate Local Rule 1.5(a) By Enacting

I de cdivnseceiniobsanidabbaasiciion

B. The District Court’s Amendment to Local

Rule 1.5(a) in No Way Deprived Gallo of

Substantive Due Process ...................c.0.se00

TABLE OF CONTENTS - Continued

Page

C. The District Court Afforded Gallo Proce-

dural Due Process By Providing the Public

With Notice of the Proposed Amendment

Sh TARE BS BI s thiccherninttieteicninincces 15

1. Gallo’s suggestion that the District

Court was required to provide individ-

ual notice to each of its 6,796 prior ad-

mittees before amending Local Rule

ET Or iis oer 15

2. The District Court’s public notice and

hearings on the revisions to Local Rule

1.5(a) satisfied due process .................65 21

III. PETITIONER GIVES THIS COURT NO

REASON TO USE ITS “INHERENT SUPER-

VISORY POWER” TO INVALIDATE LOCAL

Fee eID i sresininsecaceataiacanpnaciliniumdimeniersiinies 22

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RRR O iitktniimomuninaranwanmumae oan 23a

rer ee |

TABLE OF AUTHORITIES

Page

CASES

In re Abrams, 521 F.2d 1094 (8d Cir. 1975)... eee 9

Bi-Metallic Inc. Co. v. State Bd. of Equalization,

206 US. 4A) hircitiniccnwnmnnn 16, 17, 21

Boeing Co. v. United States, 537 U.S. 487 (2003)............... 4

Brown v. McGarr, 774 F.2d 777 (7th Cir. 1985).... 17, 19, 20

Frazier v. Heebe, 482 U.S. 641 (1987) ...........c ee eeee eee 22, 23

Ex Parte Garland, 71 U.S. (4 Wall.) 373 (1866)....6, 7, 8, 10

Giannini v. Real, 911 F.2d 354 (9th Cir. 1990) ............. 9,12

In re G.L.S., 745 F.2d 856 (4th Cir. 1984)................sesseseeees 9

Harris v. County of Riverside, 904 F.2d 497 (9th Cir.

RE wisndivcisedsinsiscintias iain a 17

Londoner v. Denver, 210 U.S. 373 (1908)..........0:-ccseeceseeees 16

Ma v. Community Bank, 686 F.2d 459 (7th Cir.

TD vinccssinsncesntnsasasenpeenne anni aceon nna 10

Mennonite Bd. of Missions v. Adams, 462 U.S. 791

CE iinicitscachein ease 17, 18, 19

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

PAINE sasscciica sceonceslanese niet cornasaseabebael conkers eenameae 16, 17, 18, 19

Nat'l Ass’n for the Advancement of Psychoanalysis

v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir.

TEE isccctdusicncnicsiavcadisehiaeseralidaiata commana 11

Ex Parte Robinson, 86 U.S. (19 Wall.) 505 (1878)....... 6, 7,8

In re Ruffalo, 390 U.S. 544 (1986).............csccscocorssccessvenees 22

Russell v. Hug, 275 F.3d 812 (9th Cir. 2002)............... 12, 13

Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968)................ 9

TABLE OF AUTHORITIES — Continued

Page

Schware v. Bd. of Bar Exam’rs of State of N.M., 353

CFB. BED CIGD sicccerccnsininsesececavabutsestvcctisauscemrmiantavcininunagits 11

In re Sealed Appellant, 194 F.3d 666 (5th Cir. 1999)....7, 20

Snelling v. Radford, 243 U.S. 46 (1917).......:cccccccssseeeeesees 14

In re Sutter, 543 F.2d 1030 (2d Cir. 1976)........... cc eeeeseeeeees 9

Texaco v. Short, 454 U.S. 516 (1982)..............ee 16, 17, 21

United States v. Fla. E. Coast R.R. Co., 410 U.S.

FE CITED kecscsesctexsisnvncrrechaiemannsiasideetiomieiaumunsesiannniend 17

Ex Parte Wall, 107 U.S. 265 (1882).............ccessssseeeeeeeees 7, 20

Application of Wasserman, 270 F.2d 213 (9th Cir.

SOD nse sneoinecaesnecccesexseceinciatnsinaesindehbeanctnigltininnninsantiesnabbns 9

CONSTITUTIONAL PROVISIONS

UG. CONUIG, 006. TEE, SS nncensssnecssarencsresenianasennesnicavacsssanentanins 8

STATUTES

UF AGF TED iecissscsonsansemrsansnissnuricintiunicannniiasiallitiinn 1

OS UBL Sed ttiinsmiionminnomneeneds passim

OB FF E.G. Be wivsiccnsissncorsinsssveiseisnnisinaatnnaninnentan 9

RULES

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vil

TABLE OF AUTHORITIES - Continued

Page

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E.D. Cal. Gen. R. 83-180(a)..................-cccccrsrcsccsssscseresereeees 5

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WD We is TR BAD ois carsnccacescsscsnccsrrsscstiterecdternsivcteanivnces 5

S.D. Fla. Special Rules Governing Admission and

Practice of Attorneys, Rule 1.............:ccceseeeeseeeeseeennnnneeenes 5

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B.D. Kye LAR. GBD .n.0.00c0sccrccssoerscrcsssonccosassosssosscssesoessnsesesesonss 5

W.D. Ky. L.R. 83.1................cccccsccsssssssccssccsssscsesscsccssscssnonees 5

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vill

TABLE OF AUTHORITIES -— Continued

Page

DED), Blin TTR. GBR svvcvscsecsssssvscctinsoieisscssisseccscctsntvvensvccanssrine 5

SBD). Mion. Ussif. LR. 88.1. .sccssccccsseccsessrscssccsesscrsesssscsssssesees 5

Dp Wath, Ba BD vic sscsisesssiasssvervcnscecasteinsssessisncrstscoetinnpanses 5

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DIODE, EPR Ae CBB vvvcscicvcseccccsesscscsssccssceseresssesvesnesanssnoentons 5

Local Civil Rule 83.1, EDNC..................44 sales sxkaeneanabuaetedanes 5

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TS. Pi, 1, is Be hdhiccktisirionnniciniennnninnnnedans 5

PT ET BIE viscickéticcciicriieictmemninicnmunncmanians 5

WBC. Bi, Cie Te, BT avs irstsicvsncensvaserccenssasanetnsssnaysecsiansvnns 5

DTD, Tih BR vtec ce cstnicansacestconsasensitiarmcssemiareanninncens 5

WE Fy, Die, Bi Tei BOD voces dncsnctcensnseissinisesissanisiccorsisuicmemantes 5

ED, Citas Cae, FR BB 4 Bic eccescssesecevncedssseosscsnsstvonyicisetabaasnenacaanes 5

Fh i i TR EB vc ccicinesissiscanccnssnsscenscsvnnssanesrnnssinsnennsnsss 5

W.D. Va. Standing Order ITI(B)(1) .........:.::ccccssesseeseetneeeeees 5

WE), We Di Be wien esiessccenssissennnivaserrssetsiccascssenaianeisesenne 5

WED, FR Te Bs incissekctesecivcticvsessensnicnssienrsccunnsanuesaisserncens 5

N.D. W. Va. L.R. Gen. P. 83.01 ............ccccccccssssrrrreeesssesseeees 5

TABLE OF AUTHORITIES -— Continued

Page

Se NE, Wk, TTR. Gk. Fr BN osc insntsnesicincrenesnsnivionnsttpianeiions 5

U.S.D.C. LB. 83.18.29 CWO.) ...000.0ceccrcccrccsrsnsscessrererensesosnasane 5

Fp Cheah Cite. FE FFT vssicisiceccncecsnasiessseecantacnsscccsasiesinamianecces 5

ia i ge Rt Sparen enemmmmnmrcemeren conn. 5

TT TS sini scene 5

MODEL RULES OF PROF. CONDUCT R. 1.1 ..........ceeseeeeeeeseeeees 18

re. OR BR, BD anv civ sansniiinnstnsceecicnanvnnnneniannnpnnennidinemnsaqomnenanbicts 4

Ta I I ain oh viticcciscenccinrs cena sons nencieaesanadicaniae 8, 20

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY 463 (6th ed. 1990)................. 4, 20

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit (the “Court of Appeals”) is reported at

349 F.3d 1169 and is found at page 1a of the Petitioner’s

Appendix (“Pet. App.”). The unreported ruling of the

United States District Court for the District of Arizona

(the “District Court”) is found in Pet. App. at page 33a.

+

JURISDICTION

The Court of Appeals entered its decision on Novem-

ber 19, 2003. The Court of Appeals denied Petitioner’s

petition for rehearing en banc on December 31, 2003.

Petitioner timely filed his Petition for Writ of Certiorari

(“Pet. Br.”) on March 24, 2004. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

¢

STATUTES AND RULES INVOLVED

This case involves 28 U.S.C. § 2071, which provides,

in pertinent part, that “all courts established by Acts 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.”

This case also involves Local Rule 1.5(a) of the United

States District Court for the District of Arizona, which

provides, in pertinent part, that “[aldmission to and

continuing membership in the bar of this Court is limited

to attorneys who are aciive members in good standing of

the State Bar of Arizona.. .”

4

STATEMENT OF THE CASE

On July 28, 1995, Petitioner David J. Gallo (hereinaf-

ter “Gallo”) was admitted to practice generally before the

United States District Court for the District of Arizona

(the “District Court”), by virtue of his membership in the

bar of another District Court. (Pet. Br. at 2)

On September 15, 1999, the District Court revised its

Local Rule 1.5(a) so that, henceforth, the roster of attor-

neys admitted to practice generally before it would be

restricted to attorneys who were members in good stand-

ing of the State Bar of Arizona. (Pet. App. at 2a) Before

revising Local Rule 1.5(a), the District Court posted public

notice of the proposed changes on its Web site, and held

public -hearings upon prior notice regarding the rule

change. (Appendix of Respondent the United States

District Court for the District of Arizona [hereinafter cited

as “Dist. Ct. App.”] at 23a-29a) After the District Court

amended Rule 1.5(a), it again posted the revisions on its

Web site, noted the revisions on all of its coversheets

transmitting its judges’ orders and judgments, and posted

the revisions at its two courthouses. (Jd.)

As Gallo was not a member of the State Bar of Ari-

zona, the District Court’s revision to its Local Rule pre-

vented him from appearing generally before the District

Court after September 15, 1999. Gallo claims not to have

received proper notice of the proposed revisions. (Pet. Br.

at 4) Nonetheless, Gallo concedes that he was aware of the

changes to Local Rule 1.5(a) by May 2000, when he read

3

that rule before he filed the underlying action, encaptioned

Bartlett v. Arthur Andersen, L.L.P., Arizona District Court

Case No. CV-00-0852-PHX-SMM (“the Baptist Foundation

suit”) (Pet. Br. at 4). Despite his awareness of the revision,

Gallo filed the Baptist Foundation suit in the District

Court and appeared before the District Court for several

months because he believed revised Local Rule 1.5(a) was

unconstitutional and thus inapplicable to him. (Pet. Br. at

4-5)

On September 1, 2000, the District Court sent Gallo a

letter advising him that he was not admitted to practice

generally before the District Court and that he could not

continue to appear generally before the District Court.

(Pet. Br. at 5) In response, Gallo requested that the Dis-

trict Court confirm that he was still admitted to practice

generally before it, and, in the alternative, applied to

appear pro hac vice. (Pet. Br. at 5-6) On October 2, 2000,

the District Court issued an Order granting Gallo’s appli-

cation for admission pro hac vice, but informing Gallo that

he was no longer admitted to practice generally before the

District Court. (Pet. Br. at 7) Gallo represented his clients

pro hac vice throughout the balance of the Baptist Foun-

dation suit. (Jd.) On February 19, 2002, after the conclu-

sion of that suit, Gallo appealed the District Court’s

October 2, 2000 Order to the Court of Appeals for the

Ninth Circuit. (Dist. Ct. App., infra, at 1a)

On November 19, 2003, the Court of Appeals held that

the District Court’s October 2, 2000 Order was not a

disbarment of Gallo, but rather a denial of his application

for a waiver of the Local Rules. (Pet. App. at 1la) The

Court of Appeals also held that Local Rule 1.5(a), and the

District Court’s notice of the proposed changes to the rule,

denied Gallo neither substantive nor procedural due

a

4

process. (Pet. App. at 13a-23a) On December 31, 2003, the

Court of Appeals denied Gallo’s request for rehearing en

banc. (Pet. App. at 32a) Gallo now seeks the intervention

of this Court.

*

ARGUMENT

I. THIS COURT SHOULD NOT ISSUE THE WRIT,

AS GALLO HAS FAILED TO SHOW EITHER

CONFLICT AMONG THE COURTS OF APPEAL

OR CONFLICT BETWEEN THE DECISION OF

THE COURT OF APPEALS AND ANY DECI-

SION OF THIS COURT.

A. Neither the Decision of the Court of Appeals,

Nor the District Court’s Decision To Enact

Revised Local Rule 1.5(a), Conflict With Any

Decision of Any Other Court of Appeals.

One major function of this Court is to resolve conflicts

between the Courts of Appeal. E.g., Boeing Co. v. United

States, 537 U.S. 437, 446 (2003); Sup. Cr. R. 10. In this

case, however, Petitioner has pointed to no such conflict

among the Courts of Appeal as to the propriety of rules

such as Local Rule 1.5(a), for there is none. For this

reason, this is no case for certiorari.

The harmony between Local Rule 1.5(a) and the rules

of many other District Courts also shows that there is no

conflict within the federal courts requiring this Court’s

attention. As both the Court of Appeals and Gallo himself

recognize, many District Courts require membership in

the bar of the state in which they sit as a prerequisite to

admission to practice before those courts. (See Pet. App. at

13a (The Court of Appeals: “amendments to [Local Rule

5

1.5(a)} are similar to laws adopted by the majority of

federal district courts”); Pet. Br. at 15 (Gallo: “Numerous

district courts currently impose” a requirement of state

bar membership as a prerequisite to admission)).

In fact, no less than fifty-seven District Courts, situ-

ated within nine Circuits, have adopted rules like Local

Rule 1.5(a).’ Petitioner has not pointed to any Court of

Appeals that has struck down any of the above rules, nor

is the District Court aware of any Court of Appeals having

done so. In short, there is no conflict between the Courts of

Appeal or even among the District Courts that this Court

need resolve. This Court should not issue the writ.

See, e.g., M.D. Ala. L.R. 83.1; N.D. Ala. L.R. 83.1; S.D. Ala. L.R.

83.5; D. Alaska L.R. 83.1; C.D. Cal. L.R. 83-2.2.1; E.D. Cal. Gen. R. 83-

180(a); N.D. Cal. Civ. R. 11-1(b); S.D. Cal. Civ. R. 83.3; D. Del. L.R. 83.5;

M.D. Fla. Gen. R. 2.01; N.D. Fla. Gen. R. 11.1; S.D. Fla. Special Rules

Governing Admission and Practice of Attorneys, Rule 1; M.D. Ga. L.R.

83.1.1; N.D. Ga. Civ. L.R. 83.1; S.D. Ga. Civ. L.R. 83.2; D. Haw. L.R.

83.1; D. Idaho Civ. R. 83.4; N.D. Iowa Civ. R. 83.2; S.D. Iowa Civ. R.

83.2; E.D. Ky. L.R. 83.1; W.D. Ky. L.R. 83.1; E.D. La. L.R. 83.2.2E; M.D.

La. L.R. 83.2.2M and W; W.D. La. L.R. 83.2.2M and W; D. Me. Civ. R.

83.1; D. Mass. L.R. 83.5.1; D. Minn. L.R. 83.5; N.D. Miss. L.R. 83.1; S.D.

Miss. Unif. L.R. 83.1; D. Mont. L.R. 83.3; D. Nev. L.R. IA 10-1; D.N.H.

L.R. 83.1; D.N.J. Civ. R. 101.1; D.N.M. L.R.-Civ 83.2; Local Civil Rule

83.1, EDNC; M.D.N.C. Civ. R. 83.1; W.D.N.C. L.R. 83.1; S.D. Ohio Civ.

R. 83.3; D. Or. L.R. 83.2; E.D. Pa. L.R. 83.5; M.D. Pa. L.R. 83.8; D.R.I.

L.R. 4(b)(1); D.S.C. L. Civ. R. 83.1.02; D.S.D. L.R. 83.2; M.D. Tenn. L.R.

1(b); D. Utah Civ. R. 83-1.1; E.D. Va. L. Civ. R. 83.1; W.D. Va. Standing

Order III(B)(1); E.D. Wash L.R. 83.2; W.D. Wash GR 2(b); N.D. W. Va.

L.R. Gen. P. 83.01; S.D.W. Va. L.R. Gen. P. 2.01; U.S.D.C. L.R. 83.12.2

(Wyo.); D. Guam Gen. R. 17.1; D.N. Mar. I. L.R. 83.5; D.V.I. L.R. 83.1.

——— ee

6

B. The Decision of the Court of Appeals Does

Not Conflict With Any Decision of This Court.

Gallo’s suggestion that the decision of the Court of

Appeals conflicts with two Civil War-era decisions of this

Court fails badly. Gallo grounds his argument in Ex Parte

Robinson, 86 U.S. (19 Wall.) 505 (1873) and Ex Parte

Garland, 71 U.S. (4 Wall.) 373 (1866), which he contends

stand for the proposition that no attorney may be removed

by a District Court from its membership rolls absent

attorney misconduct. (Pet. Br. at pp. 11-15) Gallo even

goes so far as to argue that this Court has held, in Robin-

son 2nd Garland, that attorneys licensed to practice before

the federal bar have “life tenure” that cannot be revoked

so long as the attorneys display “good behavior.” (Id. )

Gallo’s reliance upon Robinson is misplaced, because

that case is wholly distinguishable from the case at hand.

In Robinson, this Court addressed the propriety of punish-

ing a lawyer for contempt by removing him from a District

Court’s membership rolls. See Robinson, 86 U.S. at 510-11.

The Robinson Court determined that the removal was not

authorized by the Judiciary Act of 1789, which limited

punishment for contempt to fines or imprisonment, and

held that, while District Courts have the inherent power

to punish for contempt, that power may only be exercised

after notice of charges of misconduct and an opportunity to

be heard. See id. at 512. Gallo’s case, unlike Robinson, is

one in which there is neither a contempt nor a punitive or

disciplinary act taken against counsel.

Gallo’s citation of Garland likewise misses the mark.

That case too involved punishing lawyers -- specifically,

Congress’ attempt to prohibit all who had aided the

Confederacy from practicing in the post-Civil War federal

courts. See Garland, 71 U.S. at 378. The Garland Court

struck the law down as an unconstitutional ex post facto

law, a bill of attainder, and an infringement upon the

President’s Article II power to pardon former Confeder-

ates. See id. at 379. The Court also held that Congress did

not have the power to regulate a fundamentally judicial

function — the admission or exclusion of particular attor-

neys to the practice of law. Jd. at 378-79. Gallo’s case,

which is utterly unlike Garland, does not involve either an

ex post facto law, a bill of attainder, or the subversion of

Presidential action.

Gallo’s analysis of both Robinson and Garland is

fundamentally flawed because in this case, unlike those

Civil War-era cases, the District Court in no way sought to

punish him, or even to exclude him from practicing before

it. Instead, the District Court merely exercised its rule-

making authority under Section 2071, which changed the

manner of Gallo’s continued appearance to pro hac vice.

Despite Gallo’s hyperbole, the District Court’s action in

amending Local Rule 1.5(a) was in no way an “en masse

disbarment.” A lawyer is disbarred for serious misconduct,

after which the lawyer is precluded from any form of legal

practice in the court from which he or she was disbarred.

E.g., BLACK’S Law DICTIONARY 463 (6th ed. 1990) (defining

disbarment as an “[a]ct of court in suspending attorney's

license to practice law. A disbarment proceeding is ...

disciplinary in nature... ”); Ex Parte Wall, 107 U.S. 265,

273 (1882) (stating that disbarment is a sanction for “gross

cases of misconduct.”); In re Sealed Appellant, 194 F.3d

666, 674 (5th Cir. 1999) (“Disbarment is generally appro-

priate when a lawyer engages in intentional conduct

involving dishonesty, fraud, deceit, or misrepresentation

that seriously, adversely reflects on the attorneys’ fitness

8

to practice.”); Sup. CT. R. 8 (providing for disbarment

where a member of the bar of the Court has either been

disbarred from practice before any other court, or “has

engaged in conduct unbecoming a member of the Bar of

this Court.”). Here, there is neither punishment nor a

suggestion of wrongdoing. There is only quintessential

Section 2071 rulemaking — administrative action which is

not discipline, not punishment, and not an injury to any

substantive right of Gallo or his clients. Robinson and

Garland are inapposite.

Gallo wishfully argues that the reference in Robinson

to attorneys maintaining their bar membership during

“good behavior” makes attorneys admitted to the bar of a

District Court constitutionally unremovable except for

misconduct. (Pet. Br. at 11-13) Gallo reasons that, because

Article III of the United States Constitution makes federal

judges life tenured during their “good behavior,” this

Court’s use of the phrase “good behavior” in Robinson

somehow elevated counsel to the status of Article III

officers. (Pet. Br. at 11-12, citing 86 U.S. at 512) Gallo’s

bootstrap fails badly. Robinson does not describe lawyers

as Article III officers, nor does Article III mention lawyers,

though it expressly refers to judges. See generally Robin-

son, 86 U.S. at 512; see also U.S. Const. art. III, § 1. Put

another way, the presence of an enumerated right in the

United States Constitution makes it a constitutional right.

The mere description of a privilege by use of a word or

phrase which also happens to appear in the United States

Constitution does not.

For each of these reasons, Gallo has failed to establish

a conflict between Robinson or Garland and the decision of

the Court of Appeals. This Court should not issue the writ.

9

II. LOCAL RULE 1.5(a) IS A LEGITIMATE EXER-

CISE OF THE DISTRICT COURT’S RULEMAK-

ING AUTHORITY, AND IS CONSTITUTIONAL

AS APPLIED TO GALLO.

A. Congress Authorized the District Court To

Promulgate Local Rule 1.5(a) By Enacting

28 U.S.C. § 2071.

It is beyond question that the District Court has broad

authority to regulate practice before it, including the

authority to regulate the rolls of attorneys who are admit-

ted to practice before it. See 28 U.S.C. § 2071. Section 2071

provides that “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.” Jd. Section 2071 author-

izes the enactment of any local rule that does not conflict

with an identified statute or Federal Rule of Civil Proce-

dure. See 28 U.S.C. § 2072.

Rules like Local Rule 1.5(a), authorized by Section

2071, are the means by which our District Courts assure

themselves of the continued good behavior and character

of the attorneys who practice before them. See, e.g.,

Giannini v. Real, 911 F.2d 354, 360 (9th Cir. 1990); see also

In re G.L.S., 745 F.2d 856, 859 (4th Cir. 1984); In re Sutter,

543 F.2d 1030, 1036 (2d Cir. 1976); In re Abrams, 521 F.2d

1094, 1099 (3d Cir. 1975); Sanders v. Russell, 401 F.2d 241,

245-46 (5th Cir. 1968).

As the Ninth Circuit stated in Application of

Wasserman:

In view of the notorious fact that lawyers whose

qualities or acts have made them persona non

10

grata in one state where they have been admit-

ted to the courts, tend to migrate to another state

where they are not as well known, the individual

courts are faced with a tremendous problem in

screening applicants for admission.

270 F.2d 213, 216 (9th Cir. 1956).

As the District Courts do not have their own adminis-

trative mechanisms by which to supervise and regulate

ethics, local rules like Local Rule 1.5(a) provide some

assurance, through the adopted mechanisms of the forum

state’s bar, of ethical behavior by admitted attorneys. This

is a function that this Court recognized as long ago as

1866 that the federal courts must undertake. Garland, 71

U.S. at 379. Local Rule 1.5(a) serves that important goal.

While Gallo questions the retroactive application of

amended Local Rule 1.5(a), that application is authorized

by Section 2071. Section 2071 specifically states that rules

created by the District Court under its auspices “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 other

words, Section 2071 empowers a District Court to choose

whether to apply the rules it fashions to matters already

in progress, such as ongoing cases or attorney admissions

previously granted. See id.

Case law construing Section 2071 confirms that the

section empowers district courts to fashion rules that

affect prospectively how a lawyer conducts a case and how

a lawyer appears before the court. In Ma v. Community

Bank, 686 F.2d 459 (7th Cir. 1982), a New York resident

litigating a case in the Eastern District of Wisconsin was

ordered by the Wisconsin court, after the litigation had

11

commenced and consistent with the Wisconsin court’s local

rules, to retain local counsel. The Seventh Circuit upheld

the order and the local rule as a proper exercise of the

District Court’s discretion under Section 2071. See id. at

470-71.

The District Court’s application of Local Rule 1.5(a) to

Gallo is thus fully consistent with Section 2071 and case

law interpreting it. This Court should not issue the writ.

B. The District Court’s Amendment to Local

Rule 1.5(a) in No Way Deprived Gallo of

Substantive Due Process.

While Gallo rightly notes that he has a property

interest in his license to practice law, the District Court’s

amendment of Rule 1.5(a) in no way violated his right to

substantive due process. As the Court of Appeals stated in

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.’”

(Pet. App. at 14a) (quoting Nat'l Ass’n for the Advancement

of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043,

1049 (9th Cir. 2000)). This analysis applies to the regula-

tion of admissions to a state bar. See Schware v. Bd. of Bar

Exam’rs of State of N.M., 353 U.S. 232, 239 (1957) tholding

that state bar qualifications must be rationally connected

to the applicant’s “fitness or capacity” to practice law).

Rule 1.5(a), which bears well more than the required

“rational relationship to a legitimate state interest,” easily

passes constitutional muster.

The legitimate interest served by tying general

admission to a District Court to membership in that

District Court’s state bar is the enhanced regulation of the

12

fitness of attorneys. See Giannini, 911 F.2d at 360. (See

also Pet. App. at 18a-19a) There can be no serious dispute

that regulating the fitness of a District Court’s admittees

is a legitimate interest, given that Congress has charged

the District Court with the task of regulating the admis-

sion of the attorneys who practice before it. 28 U.S.C.

§ 2071. The only question is whether Rule 1.5(a) is ration-

ally related to that interest.

A recent decision of the Ninth Circuit illustrates why

Rule 1.5(a) is rationally related to that legitimate interest.

In Russell v. Hug, 275 F.3d 812 (9th Cir. 2002), the Ninth

Circuit upheld an order of the District Court for the

Northern District of California requiring private attorneys

who represented indigent defendants to be members of the

California State Bar. The Ninth Circuit found the rule to

be rationally related to the same legitimate interest at the

heart of Rule 1.5(a), finding that the challenged order

made discipline easier for that District Court by giving the

Court recourse to the California bar’s disciplinary mecha-

nism. Jd. at 820. Especially because the District Courts

generally lack the extensive investment in and commit-

ment to attorney regulation and discipline which is typi-

cally found in state bars, it is eminently rational for the

District Courts to rely upon the greater regulatory re-

sources of their state brethren to assure the fitness and

character of would-be general admittees. (Pet. App. at 18a)

Another measure of the rationality of Local Rule

1.5(a) is empirical — the number of District Courts which

have adopted like measures. As discussed in Section I of

this brief, fifty-seven District Courts have gone down the

same path as the respondent District Court, and adopted a

rule requiring membership in the forum state’s bar as a

13

prerequisite to practice before the District Court. See

supra p. 5, n.1.

In this case, the Court of Appeals correctly held that

Local Rule 1.5(a) “serves the legitimate interest of ensur- .

ing that all attorneys practicing before the [District Court]

‘clear the standard required’ by [the State Bar of Arizonal].”

(Pet. App. at 18a) (quoting Russell, 275 F.3d at 819). That

rule well “serves the court’s legitimate interest in simplify-

ing the disciplinary process,” permitting the District Court

to simply make all disciplinary referrals to the Arizona

State Bar, rather than to any of fifty state bars. (Pet. App.

at 19a) Thus, as the Court of Appeals correctly held, Local

Rule 1.5(a) does not violate substantive due process

because “it is justified by the rational purpose of stream-

lining and perfecting the regulation of attorney admission

in the Arizona District Court.” Id.

Gallo’s other attempts to minimize the legitimacy of

the District Court’s interest are likewise unavailing. He

argues that, while membership in a state bar “may have

the effect of ensuring some base level of familiarity” with

the forum state’s laws, such familiarity is only necessary

in diversity cases. However, in so arguing, Petitioner

completely ignores the effects of the rule that the Court of

Appeals found important in this case — “streamlining and

perfecting the regulation of attorney admission” in the

District Court. (Pet. App. at 19a) Ensuring the character

and fitness of the attorneys who practice before the Dis-

trict Court is a key purpose of the rule, not merely at-

tempting to ensure that those attorneys are familiar with

Arizona law.

Gallo also contends that requiring membership in the

forum state bar may “deprive litigants of their choice of

14

counsel,” but then recognizes that most District Courts,

including the respondent District Court, permit admission

pro hac vice. (Pet. Br. at 17) Gallo argues that admission

pro hac vice is not “the equivalent of a license,” and is thus

an inadequate substitute for practicing generally before

the court. (Jd.) However, the Court of Appeals correctly

stated that, while pro hac vice admission “may be con-

strued as burdensome for the attorney as well as expen-

sive for the client,” the burdens imposed by appearing pro

hac vice are outweighed by the District Court’s legitimate

interest in regulating the character and fitness of those

who appear before it. (Pet. App. at 26a-27a)

Gallo’s citation to Snelling v. Radford, 243 U.S. 46, 49

(1917), is not to the contrary. Gallo cites Snelling in

support of his argument that the requirement of forum

state membership might somehow be improper. (Pet. Br. at

16) Snelling, however, involved the question of whether

this Court was required to disbar an attorney admitted to

practice before it where the application was based upon an

admission to practice in Michigan, which had been later

revoked for immoral conduct. See id. at 48. Once again,

this is not a situation in which a court removes an attor-

ney from its rolls because of misconduct; thus, Snelling is

inapposite.

Finally, while Gallo would question the propriety of

requiring membership in the forum state’s bar as a pre-

requisite to membership in a District Court’s bar, he has

failed to preserve this particular issue for appeal. In his

brief to the Court of Appeals, Petitioner stated that he

“does not question the power of a United States District

Court to require admission to the bar of its forum state as

a prerequisite to admission to practice before it.” (See Dist.

Ct. App., infra, at 14a) (emphasis added) Gallo thus

a

15

waived any right he may have had to question the propri-

ety of requiring admission to the forum state’s bar as a

prerequisite to admission to a federal court’s bar.

For all of these reasons, the District Court did not

abridge Gallo’s rights to substantive due process by

applying Local Rule 1.5(a) to him, and this Court should

not issue the writ.

C. The District Court Afforded Gallo Proce-

dural Due Process By Providing the Public

With Notice of the Proposed Amendment to

Local Rule 1.5(a).

Gallo’s argument that the enactment of Local Rule

1.5(a) somehow violated his right to procedural due proc-

ess fails badly. First, as shown below, Gallo is wrong in

asserting that he or similarly situated attorneys were

entitled to mailed notice of the proposed revision of Local

Rule 1.5(a). Second, the District Court provided several

types of notice of the proposed change and held public

hearings regarding the change, consistent with the re-

quirements of due process.

1. Gallo’s suggestion that the District

Court was required to provide individ-

ual notice to each of its 6,796 prior ad-

mittees before amending Local Rule

1.5(a) is incorrect.

Gallo’s first argument that the District Court violated

his right to procedural due process is that, before amend-

ing Local Rule 1.5(a), the District Court was required to

provide individual notice to each of the 6,796 attorneys

previously admitted to practice before it, including him.

16

(Pet. Br. at 18-19). This argument fails, because the

promulgation of Local Rule 1.5(a) was legislative in

nature, because this Court’s case law does not require

mailed notice, and also because Local Rule 1.5(a)’s applica-

tion to Gallo was not punitive in nature.

To understand why Local Rule 1.5(a) was legislative in

nature, and thus required less prior notice than an adjudi-

cative act, it is important first to examine the law defining

legislative action. As the Court of Appeals stated, whether

a party who is to be deprived of property “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.” (Pet. App.

at 19a) (citing Texaco v. Short, 454 U.S. 516, 536 (1982); 28

U.S.C. § 2071(b)) In other words, where legislative action

is taken that affects “more than a few people,” individual

notice of the law is not required. Bi-Metallic Inv. Co. v.

State Bd. of Equalization, 239 U.S. 441, 445 (1915). If the

action is adjudicative, affecting a small number of persons,

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. Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950); see also Londoner v.

Denver, 210 U.S. 373, 385 (1908).

As the Court of Appeals correctly stated, in order to

determine whether an action is legislative, requiring no

individual notice to affected persons, or adjudicative,

requiring individual notice to affected persons, one must

consider “whether the government action applies to

specific individuals or to unnamed and _ unspecified

persons,” “whether the promulgating agency considers

17

general facts or adjudicates a particular set of disputed

facts,” and “whether the action determines policy issues or

resolves specific disputes between particular parties.” (Pet.

App. at 20a) (citing United States v. Fla. E. Coast R.R. Co.,

410 U.S. 224, 244-46; Harris v. County of Riverside, 904

F.2d 497, 501 (9th Cir. 1990), Brown v. McGarr, 774 F.2d

777, 780 (7th Cir. 1985)).

It is difficult to imagine an action to be taken by a

District Court that was more purely legislative, or less

adjudicative, than then amendment of Local Rule 1.5(a).

Amended Local Rule 1.5(a) did not apply to specific per-

sons, but rather to any and all attorneys currently practic-

ing or prospectively practicing in the District Court. In

promulgating the rule, the District Court was not intent

on resolving a set of disputed facts, but rather considered

the general facts of who should be admitted to practice

before it. In addition, the promulgation of the rule did not

resolve a specific dispute, but rather set policy for the

court. For all of these reasons, the District Court’s action

was purely legislative. See Texaco, 454 U.S. at 536; Bi-

Metallic Inv. Co., 239 U.S. at 445.

Gallo’s argument that he was owed advance notice of

the revision fares no better. Gallo suggests that the “post-

ing of notices in Arizona federal courthouses” was not

“reasonably calculated” to apprise members of the federal

bar of the proposed rule change. (Pet. Br. at 21) Gallo’s

argument that he should have received mailed notice of

the proposed change because his address was known to the

District Court is unpersuasive. (See id.) Gallo cites Mul-

lane, supra, and to Mennonite Bd. of Missions v. Adams,

462 U.S. 791 (1983), incorrectly claiming that both cases

stand for the proposition that due process always requires

mailed notice where an address is known.

18

Gallo’s citation to Mullane and Mennonite Bd. of

Missions is unavailing, because those cases are easily

distinguished from this one, and because he misstates

them. Mullane involved a situation in which the only

notice provided to trust beneficiaries of the judicial settle-

ment of trust accounts was publication in a local newspa-

per. See Mullane, 339 U.S. at 307-09. The Court held that

the dissemination of notice of the proceedings by newspa-

per publication only was insufficient. See id. at 314.

Mennonite Bd. of Missions concerned the issue of whether

published and posted notice to property owners of pending

proceedings to sell their property for non-payment of taxes

was sufficient. See Mennonite Bd. of Missions, 462 U.S. at

792. The Court held that, because the notices were de-

signed to attract prospective buyers and because the

property owners had already shown a proclivity to fail to

take steps to protect their property, notice should have

been provided by mail. See id. at 798-99.

The instant case, however, does not involve the

fleeting publication of notice in a local newspaper, as in

Mullane, or a small number of known property owners

who have already failed to protect their property interests,

as in Mennonite Bd. of Missions. This case involves a large

group of attorneys — 6,796 — many of whom, like Peti-

tioner, had never appeared before the District Court prior

to the rule change, and many of whom, like Petitioner,

lived out of state. Furthermore, Petitioner and the other

similarly situated attorneys are not only presumed, but

are in fact required, to be familiar with the rules of the

courts before which they practice and to keep themselves

informed of those rules and any changes thereto. See, e.g.,

MODEL RULES OF PROF. CONDUCT R. 1.1.

19

In addition, neither Mullane nor Mennonite Bd. of

Missions stand for the proposition that mailing is the only

form of acceptable notice. In fact, in Mullane, the Court

stated that, while personal service “within the jurisdiction

is the classic form of notice always adequate in any type of

proceeding,” it “has not in all circumstances been regarded

as indispensable to the process due residents, and it has

more often been held unnecessary as to non-residents.”

Mullane, 339 U.S. at 313-14. In fact, the Court stated, a

“construction of the Due Process Clause which would place

impossivle or impracticable obstacles in the way [of the

party required to give notice] could not be justified.” Jd.

All that is required under Mullane is notice that: (1)

“reasonably convey(s] the required information” and (2)

“afford[s] a reasonable time for those interested to make

their appearance.” Jd. at 314. In light of the cost of mailing

notices of the rule change to every attorney ever admitted

to practice generally before the District Court, the “ubiq-

uity” of the Internet (Pet. Br. at 21), the duty imposed

upon Gallo and all other attorneys to acquire and main-

tain familiarity with the rules of the courts before which

they appear, and the muitiple methods by which the

District Court provided notice of the rule change, Gallo

cannot reasonably contend that the District Court fell

below the requirements of due process in providing notice

of the rule change.

Gallo’s argument that the District Court was required

to mail notice to all previously admitted attorneys also

suffers from a deficiency common to much of his petition,

as he once again relies upon inapposite cases that ad-

dressed punishment of an attorney. (Pet. Br. at 19-20) The

McGarr case, supra, which the Court of Appeals found

“indistinguishable” from the instant case, illustrates why

20

Gallo’s assumption that he was being punished by Local

Rule 1.5(a) is wrong, and why the revision was valid. (Pet.

App. at 20a) In McGarr, the Illinois District Court had

promulgated a rule that required trial attorneys practicing

before it to possess a certain level of trial experience and

that essentially “revoked” the licenses of attorneys previ-

ously admitted to practice before the court who did not

have sufficient experience. See McGarr, 774 F.2d at 779.

The plaintiff contended, as does Gallo here, that the rule

had “disbarred him;” however, the Seventh Circuit noted

that disbarment is a penalty for misconduct by an individ-

ual attorney, while the rule in question was “adopted in

response to fact finding that was not focused on individual

attorneys.” Jd. at 780. The court therefore upheld the rule.

See id.

As the Court of Appeals recognized in this case, Local

Rule 1.5(a) did not “disbar” Gallo. The Court of Appeals’

view on this subject is fully consistent with dictionary

definitions of disbarment and cases construing that term.

E.g., BLACK’S LAW DICTIONARY 463 (6th ed. 1990) (disbar-

ment is an “[a]ct of court in suspending attorney’s license

to practice law. A disbarment proceeding is . . . disciplinary

in nature ...”); Wall, 107 U.S. at 273 (disbarment is a

sanction for “gross cases of misconduct.”); Sealed Appel-

lant, 194 F.3d at 674 (“Disbarment is generally appropri-

ate when a lawyer engages in intentional conduct

involving dishonesty, fraud, deceit, or misrepresentation

that seriously, adversely reflects on the attorneys’ fitness

to practice.”); Sup. CT. R. 8. The revision to Local Rule

1.5(a) was not punitive but was instead regulation of the

entire class of attorneys practicing before the District

Court. Accordingly, Gallo was not entitled to individual-

ized notice of the rule change. (Pet. App. at 22a)

21

2. The District Court’s public notice and

hearings on the revisions to Local Rule

1.5(a) satisfied due process.

Specific consideration of the District Court’s public

notices and public hearings concerning revised Local Rule

1.5(a) also shows that the District Court afforded Gallo

any procedural due process he was owed.

On May 19, 1999, the District Court issued a Notice of

Hearing advising that public hearings would be held

regarding the rule change in both Phoenix and Tucson.

(See Dist. Ct. App., infra, at 29a) On July 12, 1999, consis-

tent with that notice, the Court received public comment

on the proposed rules at these hearings. (Jd.) Immediately

after adopting the amended rule, the District Court: (1)

posted notice of the amendments prominently on its Web

site, www.azd.uscourts.gov, for at least six months; (2)

posted notice of the amendment at the offices of the Clerk

of the Court at both divisions of the District Court (Phoe-

nix and Tucson); (3) mailed notice of the amendment to

any out-of-state attorney admitted prior to September 15,

1999 who made a new appearance or requested a certifi-

cate of good standing; and (4) for over three months,

placed a special notice of the amendment at the foot of

every cover sheet used to transmit all orders and judg-

ments to counsel of record. (Dist. Ct. App., infra, at 23a-

27a) Under this Court’s precedent, the District Court’s

provision of public notice and hearings is sufficient to

afford Gallo the procedural due process owed to him. See

Texaco, 454 U.S. at 536; Bi-Metallic Inv. Co., 239 U.S. at

445. Gallo’s claims fail.

22

III. PETITIONER GIVES THIS COURT NO REA-

SON TO USE ITS “INHERENT SUPERVISORY

POWER” TO INVALIDATE LOCAL RULE 1.5(a)

Petitioner asks that the Court exercise its supervisory

power to invalidate Local Rule 1.5(a) and “reinstate”

Petitioner and other similarly situated attorneys. (Pet. Br.,

at p. 22, citing Frazier v. Heebe, 482 U.S. 641 (1987)) As

the Court of Appeals noted, however, in declining to

exercise its own supervisory power to invalidate the rule,

the supervisory power of a reviewing court “is not un-

bounded and may not be exercised absent a clear basis in

fact and law.” (Pet. App. at 31a) Petitioner has given this

Court no basis in either fact or law to exercise that author-

ity, and his request must fail.

This Court can exercise its supervisory powers “to

ensure that ... local rules are consistent with ‘the princi-

ples of right and justice.’” Frazier, 482 U.S. at 645 (quot-

ing In re Ruffalo, 390 U.S. 544, 554 (1986) (White, J.,

concurring)). In Frazier, the Court chose to exercise its

supervisory power to strike down a local rule that required

attorneys who practiced before the District Court for the

Eastern District of Louisiana to reside or keep an office in

Louisiana. See id. at 646. The Court considered the fact

that the attorneys in question had passed the Louisiana

state bar, thus there was no reason to believe that they

were less competent than other attorneys, and the fact

that attorneys who were residents of Louisiana were not

required to keep offices in the state. See id. at 646-47.

Based upon the foregoing facts, the Court found the rule to

be arbitrarily discriminatory and, accordingly, used its

supervisory power to strike it down. See id. at 646.

In this case, however, Local Rule 1.5(a) is wholly

“consistent with ‘the principles of right and justice.’” Id.

23

As the Court noted in Frazier, under Section 2071, “a

district court has discretion to adopt local rules that are

necessary to carry out the conduct of its business. This

authority includes the regulation of admission to its own

bar.” Id. at 645 (internal citations omitted). The District

Court has done just what this Court has told the District

Court it may do. It has implemented a rule that regulates

admission to its bar, a rule that does not arbitrarily

discriminate against out-of-state attorneys but rather, as

the Court of Appeals correctly held, is rationally related to

its legitimate interests in streamlining and administering

its attorney rolls. Thus, an exercise in this case of this

Court’s supervisory power either to strike down Local Rule

1.5(a) or to reinstate Gallo and others like him would

neither be warranted, nor consistent with Frazier.

4

24

CONCLUSION

This Court should deny Petitioner’s Petition for a Writ

of Certiorari because this case presents no conflicts among

the Courts of Appeal or any important issues of law. The

District Court’s amendment to its Rule 1.5(a) was proper

as a matter of law under Section 2071 and did not deprive

Gallo of his right to substantive due process or procedural

due process. Further, this Court should not exercise its

supervisory authority to invalidate Rule 1.5(a).

Respectfully submitted,

DANIEL J. MCAULIFFE

Counsel of Record

ANDREW M. JACOBS

SARAH K. JEZAIRIAN

SNELL & WILMER, L.L.P.

One Arizona Center

Phoenix, AZ 85004

(602) 382-6200

Attorneys for Respondent The

United States District Court

for the District of Arizona

|

la

DAVID J. GALLO, ESQ. (California Bar No. 127722)

12702 VIA CORTINA, SUITE 500

DEL MAR, CALIFORNIA 92014

Telephone: (858) 509-3652

Movant-Appellant, in propria persona

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOMMIE L. BARTLETT, et al., | Docket Number:

01-17332

Plaintiffs,

v.

ARTHUR ANDERSEN, L.L.P,

etc., et al.,

Defendants.

DAVID J. GALLO,

Movant-Appellant,

‘ APPELLANT’S BRIEF

UNITED STATES DISTRICT

COURT FOR THE DISTRICT _

OF ARIZONA,

Real Party in Interest.

APPELLANT’S BRIEF

2a

TABLE OF CONTENTS

JURISDICTIONAL STATEMENT........... cece ceceeeseseeeeees 1

Jurisdiction in the District Court .................ce 1

Jurisdiction in the Court of Appeals.................04. 1

Dates Establishing Timeliness of Appeal ............ 1

The Fir.al Judgment is Final in Form ................. 2

ISSUES PRESENTED FOR REVIEW ...............5......006 3

STATEMENT OF THE CASE .................cccccecsssccccsseseeees 4

SB OE TE CU ce rccseesectstitnieresensctenrnncirens 4

D. Comerh CE FRI evssistvcnsvenespasveseccsnecevesatennsins

3. Disposition in the District Court ................eeeee

ER GF FINE vrcitisitinscsiesnneniseatncrnesnncaseincnies 6

STATEMENT OF THE STANDARD OF REVIEW. ...... 10

SUMMARY OF THE ARGUMENT.................ceeeeeeseeeees 11

IIE E (ileninncincnttibih tannin 13

I. APPELLANTS OFFICE, LIKE THE OF-

FICES OF THE MEMBERS OF THE ARTI-

CLE III JUDICIARY, IS LIFE-TENURED

DURING GOOD BEHAVIOR................:cccceeeeees 13

II. THE DISTRICT COURT ERRED IN ENTER-

ING AN ORDER WHICH PURPORTED TO

DISBAR APPELLANT WITHOUT AFFORD-

ING APPELLANT NOTICE OF THE PRO-

SITs ASD LEBEN AAO LOL Bact: AA PERIGEE

te Mestoahrt

3a

II. THIS COURT SHOULD, IF FAIRLY POSSI-

BLE, CONSTRUE LOCAL RULE 1.5 IN

SUCH MANNER AS WOULD PRESERVE ITS

CONSTITUTIONALITY; ALTERNATIVELY,

THIS COURT SHOULD UTILIZE ITS SU-

PERVISORY POWER TO MODIFY LOCAL

RULE 1.5; IN EITHER CASE, THIS COURT

SHOULD DIRECT THE DISTRICT COURT

TO RESTORE THE STATUS QUO ANTE BY

RESTORING APPELLANT’S NAME TO THE

ROLL OF LICENSED ATTORNEYS, AND BY

TAKING OTHER APPROPRIATE CURATIVE

DF accents ka sincsiieibinrieanlidvtanesabaaieaembisauen 20

PIN sis eitecciakceusnanestiasicnnnsinieetininahninunnsndncinennsen 22

PROOF OF SERVICE ...........csessseessesessesesessetseneeeeeeeaees 24

TABLE OF AUTHORITIES

PAGE

CASES |

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

De Ie I ei sttiscsnntieresintiesinicanmasarnaats 18

Chambers v. NASCO, Inc., 501 U.S. 32; 111 S.Ct.

SARs TR ee ee Ce viinicncibcecnentncicnenstnrteveserssnnrinn 1

City of Houston v. Federal Aviation Administration,

679 F.2d 1184, LIST (Gti Cir. 1OGB)........scseccesescssvsersserecs 14

Conway v. State Bar of California (1989), 47 Cal.3d

2307; 266 Cal Bote. SOO; TGF FBG GOT csi cessccnersssnevesccss 18

Estate of Bishop v. Bechtel Power Corporation, 905

Fe a i Be tiiciniiestertccicincigipsierniioinnlineinaes 1

Federal Communications Commission v. Pottsville

Broadcasting Company, 309 U.S. 134; 60 S.Ct.

re es ee i iktnicenasinsscitntcrctiateninsdhadeosines 21

4a

Frazier v. Heebe, 482 U.S. 641; 107 S.Ct. 2607; 96

Rete NE TPES bidiisaccicodacesnsicecatancusebiasenaiusaianinwns 11

Ex Porte Garland, 71 U.S. 333; 18 L.Ed. 366; 4

PU I 0 I cs doesn cnceeslid sce csaancenkonsnsnesacnnivnics 14, 15

Giannini v. Real, 911 F.2d 354 (9th Cir. 1990) ..........0.0.... 13

Hook v. Arizona Department of Corrections, 107

Pe ee I yin eis tericsseigietericirintesmieiiovnncs 2

Matter of McLinn, 739 F.2d 1395 (9th Cir. 1984) (en

SERRE U Smee elke RESIS PDE Reo DON LATTE DI ASS TRI RON TC AC aE 11

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

U.S. 306; 70 S.Ct. 652; 94 L.Ed.2d 865 (1950).............. 18

Northern Pipeline Construction Company v. Mara-

thon Pipe Line Company, 458 U.S. 50; 102 S.Ct.

BOO, FO he BAe COE CA os nvecesssvecvsescsnsscensncckecsasexerecs 14

Ex Porte Robinson, 86 U.S. 505; 22 L.Ed. 205; 19

NT I a Tove cckicasencccncndssisetssvsainess 14, 15, 17, 18

In the Matter of Ruffalo, 390 U.S. 544; 88 S.Ct.

TAA; BO E.G. TAT (UGGS) nncvccsecccscsscsvssccesssescocvsves 17, 18

Snelling v. Radford, 243 U.S. 46; 37 S.Ct. 377

ss RANI ree MORTEM TNC REN OUT AN ME te owe a ee 16

State of Kansas, et al. v. United States of America,

et al., 16 F.3d 436 (D.C. Cir. 1994), certiorari de-

nied, 513 U.S. 945; 115 S.Ct. 354; 130 L.Ed.2d

Se ME i eaclavagh dss ac epdbabicdaaiinannssneeetiintiouaeaeaaneadecieoimns 6

Thomas v. Anchorage Equal Rights Comm’n, 165 F.2d

692 (1999), vacatea on other grounds, 220 F.3d

1134 (9th Cir.2000) (en banc), cert. denied, 531 U.S.

1143, 121 S.Ct. 1078, 148 L.Ed.2d 955 (2001)................. 14

United States v. Thirty-Seven (37) Photographs, 402

U.S. 363; 91 S.Ct. 1400; 28 L.Ed.2d 822 (1971)............ 20

Zobrest v. Catalina Foothills School Dist., 509 U.S.

1; 113 S.Ct. 2462; 125 L.Ed.2d 1 (1998)...............sccccceee 20

Fa AUR TA aE an Sa Lease rep atic ws AEE NRE NE RIA TY S ESR ioe add dearth Cg eK os ew

da

STATUTES AND RULES

Re Belg SF i xg ME I. a bisa cock csccntcesicneisvecddiwisass occas 1

RIC iy Wing CO TIE vets scien viicinnessnsenccicsescavcousvies 1

‘Tats® 3B, U.S.C., Bectiom LSGICD)......0.ssicsscrsecossresccassecssocvecese 8

BERD Bh, CAB, RIE Bins cscsisccccsescecacscsccncsasccvsccessces 8

Title 28, U.S.C., Section 1409(a) ..........ccccscosssscssesssccessocecnes 8

I AC), FN ons scsi corsinssnasednsassnssacuninhvcinerednars 3

District Court’s Local Rule 1.5 (a/k/a “Rule 1.5”) ..... passim

CONSTITUTIONAL PROVISIONS

es es ee se Bis ic eee cca ees neces 13, 4

JURISDICTIONAL STATEMENT

Jurisdiction in the District Court

Title 28, U.S.C., Section 1331, conferred subject

matter jurisdiction upon the District Court below. An

additional basis for subject-matter jurisdiction is the

inherent power of federal courts over attorney admissions

to practice. See, Chambers v. NASCO, Inc., 501 U.S. 32,

43; 111 S.Ct. 2123, 2132; 115 L.Ed.2d 27 (1991).

Jurisdiction in the Court of Appeals

Title 28, U.S.C., Sections [sic] 1291, confers subject

matter jurisdiction upon this Court.

Dates Establishing Timeliness of Appeal

The interlocutory order on appeal (hereinafter the

“Order on Appeal”) was entered 2 October 2000. (See,

6a

Order on Appeal, Docket Entry 56, reproduced at E/R 18-

19.)' Arguably, the Order on Appeal constituted a “collat-

eral order” which was immediately appealable of right.

See, Estate of Bishop v. Bechtel Power Corporation, 905

F.2d 1272, 1274 (9th Cir. 1990) (explaining “collateral

order” doctrine). However, even if the Order on Appeal did

constitute a “collateral order” immediately appealable of

right, Appellant, at his sole option, had the absolute right

to defer perfection of the instant Appeal until after entry of

final judgment. See, Hook v. Arizona Department of Cor-

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

Final judgment (hereinafter the “Final Judg-

ment”) was entered 17 September 2001. (See, Final

Judgment, Docket Entry 164, reproduced at E/R 20.) The

Order on Appeal merged into the Final Judgment by

operation of law. See, Hook v. Arizona Department of Correc-

tions, supra, 107 F.3d at 1401. On 12 October 2001, Appel-

lant timely perfected the instant Appeal by filing his Notice

of Appeal. (See, Notice of Appeal., Docket Entry 169, repro-

duced at E/R 21-25; cf:: Rule 4 (a)(1), Fed.R.App.P.)

The Final Judgment is Final in Form

The Final Judgment is final in form, purporting to

dispose completely of all claims of all parties. (See, Final

Judgment, at E/R 20.)

" References to “E/R” shall be to the Excerpts of Record. Where

appropriate, page and line shall be indicated in the following format:

“8:2” shall mean page 8, line 2; “8:2-21” shall mean page 8, lines 2

through 21; “8:2 to 9:16” shall mean page 8, line 2 through page 9, line

16.

7a

ISSUES PRESENTED FOR REVIEW

Appellant presents the following issues for review:

; Whether ihe District Court’ erred in concluding that

j an amendment to the District Court’s Local Rule 1.5

(hereinafter “Rule 1.5”), which limited “ .. . continuing

membership in the bar of [the District Court] ... to attor-

neys who are active members in good standing of the State

Bar of Arizona,” operated to disbar Appellant, along with

other affected attorneys who, like Appellant, were admit-

| ted to practice before the District Court prior to the effec-

tive date of the amendment, but who are not members of

the State Bar of Arizona.

Whether the District Court erred in failing to conclude

; that, the absence of netice by mail of the disbarment

proceedings offended Appellant’s due process rights (and

the due process rights of the other affected attorneys).

Whether this Court should exercise its supervisory

power over the District Court to direct that Local Rule

1.5(a) shall be applied prospectively (but not retroactively

so as to disbar previously-admitted counsel), so as to avoid

the necessity of determining constitutional issues of great

magnitude.

en eee TT Pee

STATEMENT OF THE CASE

1. Nature of the Case

Appellant is an attorney who was engaged to repre-

sent the Plaintiffs in the underlying civil action. During

* The Hon. Stephen M. McNamee, Chief United States District

Judge for the District of Arizona.

8a

the course of the underlying civil action, Appellant learned

that the Clerk of the District Court had stricken Appel-

lant’s name from the roll of attorneys admitted to practice

before said Court, and that the Clerk had done so without

affording any notice to Appellant.

The instant Appeal is brought from an order (i.e., the

Order on Appeal) which determined that Appellant (along

with other affected attorneys) had been lawfully disbarred

from practice before the District Court by operation of an

amendment to the District Court’s Local Rule 1.5, which,

as amended, purports to limit “ ... continuing member-

ship in the bar of [the District Court] ... to attorneys who

are active members in good standing of the State Bar of

Arizona.”

2. Course of Proceedings

The underlying civil action was commenced in May of

2000. In August of 2000, Appellant was informed by the

Clerk of the District Court that “... a review of our files

indicates that you have not been admitted to practice in

this Court.” (See, Clerk’s Letter, at E/R 13.) Appellant

responded to the Clerk’s Letter by filing an Ex Parte

Application for Order Clarifying Status of Counsel, Etc.,

whereby Appellant called to the attention of the District

Court the fact that Appellant had previously been admit-

ted to the bar of the District Court, and requested an order

confirming that Appellant remained a member of the bar.

(See, Ex Parte Application, at E/R 2-17.)

3. Disposition in the District Court

The District Court entered an order (i.e., the Order

on Appeal) which determined that Appellant had been

aA AOR AARON AABN MON Aa nC Sia as

9a

disbarred upon amendment to the District Court’s Local

Rule 1.5, which, as amended, purports to limit “continuing

membership” to attorneys who are also members of the

State Bar of Arizona. (See, Order on Appeal, at E/R 18-19.)

STATEMENT OF FACTS

Appellant is a member of, inter alia, four (4) state

bars, and has been admitted to practice before, and has

practiced before, the United States Supreme Court,‘ three

United States Courts of Appeals, and numerous United

States District Courts. (See, Ex Parte Application, at E/R

3:2-10.) It is undisputed that Appellant is not now, nor has

he ever been, a member of the State Bar of Arizona. (See,

Ex Parte Application, at E/R 4:3.)

On 28 July 1995, Appellant was duly admitted as a

member of the bar of the District Court. (See, Clerk’s

Certificate, at E/R 10.) As the District Court noted:

“[Appellant] was admitted to practice before the

bar of [the District court] ... under then-Local

Rule 1.5. Then-Local Rule 1.5 allowed nonresi-

dent attorneys to gain admission to practice

based on their admission to the bar of a United

States District Court.”

(See, Order on Appeal at E/R 18:19'/-21'/2.)

* Including the plenary bar of the District of Columbia.

* Assuming unsuccessful petitions for certiorari constitute “prac-

tice” before the Supreme Court. See, e.g., State of Kansas, et al. v.

United States of America, et al., 16 F.3d 436 (D.C. Cir. 1994), certiorari

denied, 513 U.S. 945; 115 S.Ct. 354; 130 L.Ed.2d 309 (1994).

10a

At all times from and after his admission to the bar of

the District Court, Appellant duly reported his residence

address and business address to the Clerk of the District

Court. Such reports were in writing, and were transmitted

via U.S. Certified Mail (Return Receipt Requested). (See,

Report of Address Change, and Return Receipt for Certi-

fied Mail executed on behalf of the Clerk of the District

Court, at E/R 11-12.)

In September of 1999, the District Court amended its

Local Rule 1.5. As the District Court explained:

“On September 15, 1999, the United States Dis-

trict 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]Jdmission 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 mem-

bers of the bar of this Court shall practice in this

District.’”

(See, Order on Appeal at E/R 18:21'2-27'%; see also, Gen-

eral Order No. 99-15, hereinafter the “Amendment

Order”, reproduced at E/R 1.)

In or about May of 2000, Appellant was retained by

numerous individuals to represent them as plaintiffs in a

civil action for recovery of damages involving the collapse

of a Five Hundred Million Dollar ($500,000,000.00) Ponzi

scheme which had operated under the name, “Baptist

Foundation of Arizona.” (See, Ex Parte Application, at E/R

4:4-6.) Appellant determined that venue of the then-

proposed civil action was properly fixed within the District

lla

of Arizona, by operation of Title 28, U.S.C., Sections

1391(b), 1391(c), and 1409(a). (See, Ex Parte Application,

at E/R 4:7-8.) Upon making such determination, and prior

to commencement of the underlying civil action, Appellant

reviewed the Local Rules of the District Court, and noted

the above-referenced amendments to Local Rule 1.5(a).

(See, Ex Parte Application, at E/R 4:9-11.) Based upon the

constitutional principles discussed infra, Appellant deter-

mined that the amendments to Local Rule 1.5(a) could not

have been intended to terminate Appellant’s license to

practice before the District Court, and that Appellant’s

license to practice before the District Court remained

extant. (See, Ex Parte Application, at E/R 4:12-14.) Believ-

ing that he was licensed to practice before the District

Court, Appellant participated in the filing of the underly-

ing civil action, wherein Appellant served as co-counsel of

record. (See, Ex Parte Application, at E/R 4:15-16.)

On or about 1 September 2000, Appellant received a

letter (hereinafter the “Clerk’s Letter”) from the Clerk

of the District Court which stated, inter alia:

“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.”

(See, Clerk’s Letter, at E/R 13.) The Clerk’s Letter warned

Appellant that if Appellant failed to apply by 29 Septem-

ber 2000 for admission pro hac vice, Appellant would“...

be removed as counsel of record,” and that filing of addi-

tional pleadings in the absence of admission “... could...

subject [Appellant] to sanctions ... ” (See, Clerk’s Letter,

at E/R 13.)

12a

At no time prior to Appellant’s receipt of the Clerk’s

Letter (i.e., at no time prior to 1 September 2000) did

Appellant receive notice that the District Court was

considering entry of the Amendment Order, or that the

District Court might interpret the amended Local Rule 1.5

(a) as operating to terminate Appellant’s licence to practice

before the District Court. (See, Ex Parte Application, at

E/R 4:23'/2 to 5:1.)

In response to the Clerk’s Letter, Appellant promptly

filed his Ex Parte Application for Order Clarifying Status

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

Granting Admission Pro Hac Vice. (See, Ex Parte Applica-

tion, reproduced at E/R 2-17.)

In considering Appellant’s Ex Parte Application, the

District Court correctly noted that Appellant had not been

the subject of any disciplinary action, or even of any

complaint. (See, Order on Appeal, at E/R 19:13-17.) How-

ever, the District Court held that Appellant had been

disbarred by the amendment to Local Rule 1.5. (See, Order

on Appeal, at E/R 18-19.) The District Court implied that,

because Appellant remained free to apply for admission

pro hac vice, Appellant had assertedly not been harmed by

the disbarment, and thus was not entitled to notice and an

opportunity to be heard prior to entry of the order effecting

the disbarment. (See, Order on Appeal, at E/R 19:13-17.)

The District Court required that Appellant pay a $25.00

application fee as a prerequisite to admission pro hac vice.

(See, Order on Appeal, at E/R 19:22.)

STATEMENT OF THE STANDARD OF REVIEW

The Order on Appeal is based entirely upon conclu-

sions of law, and is thus reviewed de novo. See, Matter of

13a

McLinn, 739 F.2d 1395, 1397 (9th Cir. 1984) (en banc),

noting that United States Courts of Appeals conduct de

novo review of district courts’ conclusions of law.

To the extent this Court may elect to utilize its super-

visory power so as to avoid consideration of constitutional

issues, this Court has plenary power to invalidate in whole

or in part the District Court’s Local Rule 1.5, so as to

ensure that the Local Rules of the District Court are

consistent with “ ... the principles of right and justice.”

See, Frazier v. Heebe, 482 U.S. 641, 645; 107 S.Ct. 2607,

2611; 96 L.Ed.2d 557 (1987) (citation, internal quotation

marks, and attribution omitted), wherein the Supreme

Court utilized its supervisory power to invalidate a local

rule, and thereby obviated the necessity of addressing a

constitutional question.

SUMMARY OF THE ARGUMENT

Appellant is an officer of the District Court who, like

the Judges of the District Court, holds his office during

good behavior. Once admitted to practice, an attorney may

not be discharged from his or her life-tenured office except

upon judgment of misconduct or unfitness, entered after

full due process has been afforded the attorney. The

requisite due process includes, at a minimum, advance

notice by mail of the proceedings wherein the order effect-

ing disbarment is to be entered, notice of the precise

nature of the charges, and an opportunity to be heard in

defense against those charges.

In the case at bar, the District Court purported to

disbar Appellant, and presumably many other licensed

attorneys, in the absence of just cause, in the absence of

l4a

notice of the proceedings, and in the absence of even notice

ex post facto.

This Court should, if fairly possible, interpret the

District Court’s Local Rule 1.5 to operate prospectively (so

as to have no effect upon the licenses of attorneys admit-

ted prior to the effective date of the amendment). If this

Court cannot do so, this Court should utilize its supervi-

sory power to modify the operation of the District Court’s

Local Rule 1.5 to operate prospectively. If necessary, this

Court should hold that the District Court’s Local Rule 1.5

is unconstitutional as applied to attorneys admitted prior

to the effective date of the amendment who are not mem-

bers of the State Bar of Arizona.

ARGUMENT

I. APPELLANT’S OFFICE, LIKE THE OFFICES

OF THE MEMBERS OF THE ARTICLE III JU-

DICIARY, IS LIFE-TENURED DURING GOOD

BEHAVIOR

Appellant does not question the power of a United

States District Court to require admission to the bar of iis

forum state as a prerequisite to admission to practice

before it. See, Giannini v. Real, 911 F.2d 354 (9th Cir.

1990). The primary questions presented by the instant

Appeal are: (a) whether a District Court may disbar

licensed attorneys by requiring -- through a local rule

adopted subsequent to the attorney’s admission to prac-

tice - membership in the state bar of its forum state, and

(b) if so, whether the disbarment may be effected without

notice to the disbarred attorneys. The instant Part I of the

Argument addresses the first of these two questions.

15a

Article III, Section 1, of the United States Constitu-

tion provides, inter alia:

“The Judges, both of the supreme and inferior

Courts, shall hold their Offices during good Be-

haviour...”

(See, U.S. Const., Art. III, § 1.) “The ‘good Behavior’ Clause

guarantees that Art. III judges shall enjoy life tenure,

subject only to removal by impeachment.” Northern

Pipeline Construction Company v. Marathon Pipe Line

Company, 458 U.S. 50, 59; 102 S.Ct. 2858, 2865; 73

L.Ed.2d 598 (1982). (Citation omitted.)

Attorneys licensed to practice before courts of the

United States, like members of the Article III judiciary,

hold their offices during “good behavior”. As the Supreme

Court has held, such attorneys are:

“ .. officers of the court ... [who] ‘hold their

office during good behavior, and can only be

deprived of it for misconduct.. .’”

Ex Parte Robinson, 86 U.S. 505, 512; 22 L.Ed. 205; 19

Wallace 505 (1873), quoting, Ex Parte Garland, 71 U.S.

333, 378; 18 L.Ed. 366; 4 Wallace 378 (1866). (Emphasis

added.) Although there is no requirement that attorney

* It is axiomatic that all decisions of the Supreme Court remain

binding upon this Court in the absence of subsequent authority to the

contrary. As one Fifth Circuit panel wrote: “Mere age does not weaken

the strength of an opinion. Nor, obviously, can it reduce the scope

of constitutional protection.” City of Houston v. Federal Aviation

Administration, 679 F.2d 1184, 1197 (5th Cir. 1982). See also, Thomas

v. Anchorage Equal Rights Comm’n, 165 F.2d 692, 704 (1999), vacated

on other grounds, 220 F.3d 1134, 1140 (9th Cir.2000) (en banc), cert.

denied, 531 U.S. 1143, 121 S.Ct. 1078, 148 L.Ed.2d 955 (2001).

(Continued on following page)

16a

misconduct must be established upon impeachment, the

Supreme Court has held that the power to terminate a

license to practice before a United States District Court:

“

... can only be exercised where there has been

such conduct on the part of the parties com-

plained of as shows them to be unfit to be mem-

bers of the profession.”

Ex Parte Robinson, 86 U.S. at 512.

“The attorney and counsellor being, by the sol-

emn judicial act of the court, clothed with his

lor her] office, does not hold it as a matter of

grace and favor. The right which it confers

upon him [or her] to appear for [litigants], 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 [or she] can only be de-

prived by the judgment of the court, for moral or

professional delinquency.”

Ex Parte Garland, 71 U.S. at 379. (Emphasis added.)

The Supreme Court has even held that, where one of

the requirements for admission to practice before a federal

court was (at the time of admission) membership in the

bar of a state court, such requirement is:

“ ... exhausted upon admission to [the federal

bar] which [the state bar membership] has

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

(Referring to older decisions of the Supreme Court as: “... remain{ing]

on the books and ... binding on lower courts .. . [This Court is] not at

liberty to ignore them.”)

17a

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; 37 S.Ct. 377, 378

(1917). Thus, attorneys who are members of the State Bar

of Arizona who are today admitted under the current

version of the District Court’s Local Rule 1.5 are free to

permit their Arizona law licenses to lapse (e.g., for non-

payment of dues), without placing at risk their licenses to

practice before the District Court.

In the case at bar, Appellant possessed all qualifica-

tions for admission to the bar of the District Court at the

time he was duly admitted to said bar. Appellant holds his

office during good behavior, and his license to practice

before the District Court cannot be terminated in the

absence of misconduct.

Il. THE DISTRICT COURT ERRED IN ENTERING

AN ORDER WHICH PURPORTED TO DISBAR

APPELLANT WITHOUT AFFORDING APPEL-

LANT NOTICE OF THE PROCEEDINGS AND

AN OPPORTUNITY TO BE HEARD

The instant Part II of the Argument establishes that

disbarment may never be effected in the absence of notice

to the disbarred attorneys.

Disbarment proceedings “ ... are adversary proceed-

ings of a quasi-criminal nature.” In the Matter of: Ruffalo,

390 U.S. 544, 551; 88 S.Ct. 1222, 1226; 20 L.Ed.2d 117

(1968). (Citations omitted.)

“Disbarment, designed to protect the public,

is a punishment or penalty imposed on the

18a

lawyer. ... He [or she] is accordingly entitled to

procedural due process, which includes fair no-

tice of the charge.”

In the Matter of: Ruffalo, 390 U.S. at 550; 88 S.Ct. at 1226.

(Emphasis added; citations omitted.)° A license to practice

before a United States District Court may only be termi-

nated upon a judicial determination of misconduct, ren-

dered “ ... after opportunity to be heard has been

afforded.” Ex Parte Robinson, 86 U.S. at 512. (Emphasis

added.)

The Supreme 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 de-

fence. 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.” .

Ex Parte Robinson, 86 U.S. at 512. (Emphasis added.’

* See also, concurring opinion of Justice Harlan at 390 U.S. 552; 88

S.Ct. 1227.

" Other courts have more explicitly held that a license to practice

law is a property interest protected by the Due Process Clause. See, e.g.,

Conway v. State Bar of California (1989), 47 Cal.3d 1107, 1113; 255

(Continued on following page)

19a

Due process requires that the attorney be afforded

“ .. fair notice as to the reach of the [proceedings result-

ing in disbarment] and [also of] the precise nature of

the charges ...” In the Matter of: Ruffalo, 390 U.S. at

552; 88 S.Ct. at 1226. (Emphasis added.)

Notice by ordinary U.S. mail is the minimum notice

required to afford due process where, as here, the mailing

address of the person to be affected is ascertainable.

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

306, 318; 70 S.Ct. 652, 659; 94 L.Ed.2d 865 (1950).

In the case at bar, at the time the Judges of the

District Court issued their Amendment Order which, inter

alia, amended Local Rule 1.5, the Clerk of the District

Court had Appellant’s name and address (and also the

names and addresses of numerous other licensed attorneys

situated similarly to Appellant). Nevertheless, Appellant

was afforded no notice whatsoever that the Judges were

considering entry of the Amendment Order which (accord-

ing to the District Court below) had the effect of disbarring

Appellant. (Presumably, no notice was afforded any of the

other licensed attorneys situated similarly to Appellant).

Even more troubling, Appellant was afforded absolutely no

notice when the Clerk of the District Court struck Appel-

lant’s name from the membership roll of the District

Court’s bar. (Presumably, no notice was afforded any of the

other similarly-situated attorneys, many of whom, as of

Cal.Rptr. 390, 393; 767 P.2d 657, 660 (license to practice law), citing,

Barry v. Barchi, 443 U.S. 55, 64; 99 S.Ct. 2642, 2649; 61 L.Ed.2d 365

(1979) (the latter 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”).

20a

this date may not even be aware that they have been

disbarred.) This absence of notice, standing alone, ren-

ders the amendment to Local Rule 1.5 unconstitutional as

applied to Appellant, and as to all other attorneys admit-

ted to practice prior to the effective date of the Amend-

ment Order (i.e., prior to 15 September 1999).

Ill. THIS COURT SHOULD, IF FAIRLY POSSIBLE,

CONSTRUE LOCAL RULE 1.5 IN SUCH MAN-

NER AS WOULD PRESERVE ITS CONSTITU-

TIONALITY; ALTERNATIVELY, THIS COURT

SHOULD UTILIZE ITS SUPERVISORY POWER

TO MODIFY LOCAL R 1.5; IN EITHE

CASE, THIS COURT SHOULD DIRECT THE

DISTRICT COURT TO RESTORE THE STATUS

QUO ANTE BY RESTORING APPELLANT'S

NAME TO THE ROLL OF LICENSED ATTOR-

NEYS, AND BY TAKING OTHER APPROPRIATE

CURATIVE ACTION

The Supreme Court has adopted the prudential rule

that a federal court should avoid addressing constitutional

questions where not necessary to the disposition of the

case or controversy before it. See, Zobrest v. Catalina

Foothills School District, 509 U.S. 1, 7-8; 113 S.Ct. 2462,

2465-2466; 125 L.Ed.2d 1 (1993). For example, where

possible, an Act of Congress will be construed, if “fairly

possible”, so as to avoid the necessity for resolution of any

constitutional question. Zobrest, 509 U.S. at 7; 113 S.Ct. at

2465. See also, United States v. Thirty-Seven (37) Photo-

graphs, 402 U.S. 363, 369; 91 S.Ct. 1400, 1404-1405; 28

L.Ed.2d 822 (1971).

In the case at bar, Appellant requested that the

District Court interpret the amended Local Rule 1.5 as

applicable only to new admissions occurring subsequent to

2la

the effective date of the Amendment Order. (See, Ex Parte

Application, at E/R 6:7 to 7:12.) The District Court refused

to so interpret the Amendment Order. (See, order on

Appeal, passim, reproduced at E/R 18-19.)°

This Court is not bound by the District Court’s inter-

pretation of the District Court’s prior order. See, Federal

Communications Commission v. Pottsville Broadcasting

Company, 309 U.S. 134, 141; 60 S.CT. 437, 440; 84 L.Ed.

656 (1940). (“Nor is a court’s interpretation of the scope of

its own mandate necessarily conclusive.”) Accordingly, this

Court is free to consider whether Local Rule 1.5, as

amended, purports to disbar attorneys who are not mem-

bers of the State Bar of Arizona, but who were admitted to

practice before the District Court prior to the effective date

of the Amendment Order.

Alternatively, if this Court concurs in the District

Court’s interpretation of Local Rule 1.5, as amended, then

this Court may utilize its supervisory power to direct the

District Court to limit the application of the Local Rule

1.5, as amended, to prospective admissions to the bar of

the District Court. Such a limitation could be effected by

simply striking the words, “and continuing membership

in”, from the first sentence of Local Rule 1.5.

CONCLUSION

This Court’s ruling in the case at bar should be broad

in scope, so as to restore the licenses of all attorneys

* The District Court was not alone in so interpreting Local Rule

1.5, as amended. Recall that the Clerk of the District Court had

previously stricken Appellant’s name from the District Court’s roll of

licensed attorneys.

22a

purportedly disbarred by the Amendment Order. This

Court should direct the District Court to order the Clerk of

the District Court to restore to its roll of licensed attorneys

all counsel whose names were previously stricken there-

from as a result of the Amendment Order. This Court

should direct the District Court to order the Clerk of the

District Court to provide written notice to all attorneys

whose names were previously stricken that their names

had been stricken from the roll, but that, pursuant to

order of this Court, their names have been restored to the

roll. This Court should also publish its decision in this

case, to ensure that notice of the reinstatement is made

available to those attorneys who previously learned that

they had been disbarred, and who thereafter believed they

had no reason to notify the Clerk of the District Court of

their current mailing addresses. Finally, this Court should

notify each active Judge of the District Court of its deci-

sion in this case, so that such Judges will be aware that

attorneys previously disbarred by operation of the

Amendment Order are authorized to practice before the

District Court.

Dated: 19 February 2002 Respectfully submitted,

DAVID J. GALLO, ESQ.

12702 VIA CORTINA, SUITE 500

DEL MAR, CALIFORNIA

92014-3769

Telephone: (858) 509-3652

/s/_ David J. Gallo

By: David J. Gallo,

California Bar No. 127722,

Movant-Appellant,

in propria persona

23a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOMMIE L. BARTLETT, et al.,

Plaintiffs,

-V-

ARTHUR ANDERSEN, L.L.P.,

etc. et al.,

Defendants.

DAVID J. GALLO,

Movant-Appellant,

-V-

UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF ARIZONA,

Real Party in Interest.

Docket Number

01-17332

SUPPLEMENT TO RECORD

Daniel J. McAuliffe

Andrew M. Jacobs

SNELL & WILMER LLP

One Arizona Center

Phoenix, Arizona 85004-2202

(602) 382-6272

24a

UNITED STATES DISTRICT COURT [SEAL]

District of Arizona

OFFICE OF THE CLERK

MEMORANDUM

DATE: February 7, 2003

TO: Daniel J. McAuliffe, Esq.

FROM: Richard H. Weare, District Court Executive and

Clerk of Court = [/s/ Richard H. Weare]

RE: Establishment of Pro Hac Vice Requirement

In response to your request for information relating to

the establishment of a pro hac vice requirement in this

district, particularly as it relates to attorney David J.

Gallo, I offer the following:

e David J. Gallo was admitted to practice in

the District of Arizona on July 28, 1995,

based soiely on his status as an attorney ad-

mitted to practice in the Northern District of

Texas. At that time, Local Rule 1.5 (c) (at-

tachment 1) allowed for any member in good

standing of the bar of any Federal Court, and

who neither resides nor maintains an office

for the practice of law in the district of Arizona,

to be admitted to practice in this District upon

appropriate application, completion of the oath

upon admission, and payment of an admission

fee of fifty dollars ($50) to the Clerk, U. S. Dis-

trict Court. Attached is a copy of Mr. Gallo’s

application for admission (attachment 2) and

certificate of admission (attachment 3).

e On September 15, 1999, Local rule 1.5 (at-

tachment 4) was amended to establish a pro

hac vice provision that pertains to all attorneys

25a

for whom one or more of the following apply

(1) the attorney does not reside in Arizona,

(ii) the attorney is not regularly employed in

Arizona, or (ili) the attorney is not regularly

engaged in the practice of law in Arizona.

In response to the amendment to Local Rule

1.5, this office determined that 6,796 out-of-

state attorneys were affected by the change —

the vast majority of whom were not actively

practicing in this district court. Because the

issuance of separate notices to all affected at-

torneys would pose an unreasonable adminis-

trative hardship on this office, this office

instead attempted to publicize the rule change

in a way that would effect timely notice to

those lawyers who were actively practicing in

this district and/or who otherwise stayed

abreast of local rule activity in this district.

Specifically, the following actions were taken

immediately following the adoption of the

amended local rules in September 1999:

1. Notice of the local rule amendments was

prominently posted on the court’s website

at www.azd.uscourts.gov. In addition, a

summary (attachment 5) was posted on

the website to assist lawyers in identify-

ing specific changes to the rules. These

postings appeared for approximately six

montrs or more.

2. A notice advising of the change to Local

Rule 1.5 (attachment 6) was prominently

posted and made available in the Cus-

tomer Services/Intake area of the Clerk’s

Offices in the Phoenix and Tucson divi-

sions. This same notice was mailed to

26a

any out-of-state attorney admitted prior

to 9/15/99, who made a new appearance

and/or requested a certificate of good

standing. These activities occurred for a

period of approximately three months.

3. For a period of approximately three

months or more, a special notice (at-

tachment 7) appeared at the foot of the

cover sheet used to transmit all orders

and judgments issued in any civil or

criminal case via facsimile to counsel of

record.

4. Clerk’s Office representatives made a

presentation at a Federal Bar Associa-

tion luncheon in Phoenix in January

2000 during which the changes to the lo-

cal rules were reviewed. |

e At an administrative meeting of the court in

October 1999, the district judges determined

that it was appropriate to establish a grace

period for those out-of-state attorneys who

had been admitted to practice in Arizona, but

had not yet made an appearance. They di-

rected the Clerk as follows:

Any out of state attorney admitted to

practice before the Bar of this Court be-

tween September 15, 1998 and Septem-

ber 14, 1999; and who has made no

appearances in this court during that

time frame, will be granted one pro hac

vice appearance without payment of the

fee. Any subsequent appearances by that

attorney will be subject to the $25 pro

hac vice fee under the provisions of Lo-

cal Rule 1.5(b)(1\3).

27a

e Our records indicate that Mr. Gallo’s first

appearance in a case in this district was on

May 8, 2000, as co-counsel of record for the

plaintiff in CIV 00-852-PHX-SMM.

e On August 30, 2000, the attorney admissions

clerk sent a letter to Mr. Gallo advising of the

_court’s pro hac vice requirement (attachment

8). Mr. Gallo responded with an “ex parte appli-

cation for order clarifying status of counsel, or,

alternatively, for order nunc pro tunc granting

admission pro hac vice” (attachment 9), along

with a proposed order (attachment 10).

e On October 2, 2000, this office filed an order

by Judge Stephen M. McNamee (attachment

11) denying Mr. Gallo’s application and, hav-

ing already received a pro hac vice applica-

tion, directed him to submit the $25.00 fee

for pro hac vice admission. On October 17,

2002, this office deposited Mr. Gallo’s $25.00

pro hac vice admission fee and issued a re-

ceipt to him (attachment 12).

I hope this information is helpful. If I can be of any

further assistance, please feel free to contact my office.

Attachments — copies of:

1. Local Rule 1.5 dated January 1994.

2. Mr. Gallo’s 1995 application for admission.

3. Mr. Gallo’s 1995 certificate of admission

4. Local Rule 1.5 dated September 15, 1999.

5

6

Summary of rule changes as posted on court’s website.

Notice re change to Local Rule 1.5.

28a

Facsimile notice to counsel re rule changes (sample)

Letter to Mr. Gallo re admission status.

Mr. Gallo’s ex parte application.

. Mr. Gallo’s proposed order.

. Order denying Mr. Gallo’s application.

. Receipt for pro hac vice fee.

. Chief Judge Stephen M. McNamee

29a

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

230 N. First Avenue

Room 6077

Phoenix, Arizona 85025

Stephen M. McNamee Telephone: (602) 514-7016

United States District Judge © Fax: (602) 514-7173

May 19, 1999

NOTICE OF HEARING

In accordance with Rule 1.18 of the Rules of Practice

of the United States District Court for the District of

Arizona (hereafter “Local Rules”), a public hearing on the

proposed amendments to the Local Rules will be held on

Monday, July 12, 1999, at 9:00 a.m. before the Honorable

Stephen M. McNamee at the United States Courthouse in

Phoenix and at 3:30 p.m. before the Honorable John M.

Roll at the James A. Walsh Courthouse in Tucson.

The proposed amendments to the Local Rules are

available at the District of Arizona Web site located at

www.azd.uscourts.gov under the topic of “1999 Local Rules

Amendment.”

/s/ Stephen M. McNamee

Honorable Stephen M. McNamee

United States District Judge

Chair, Local Rules Committee