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Out-of-state lawyers who practice or wish to practice in California have won one and lost one this year. They won when the state Supreme Court adopted new rules permitting the limited practice of law in California by out-of-state lawyers who are not members of the California Bar. They lost when the state continued to treat out-of-state lawyers who are members of the California Bar as second-class citizens, denying them the right to vote or stand for office in elections for the State Bar’s Board of Governors. Ironically, these conflicting actions may combine to give out-of-state members of the California Bar incentives to go inactive, costing the bar substantially in both members and dues. The new rules on multijurisdictional practice permit lawyers not licensed in California to practice here to a limited extent as (i) legal services attorneys; (ii) in-house counsel, (iii) litigators here temporarily in connection with litigation, and (iv) nonlitigators here temporarily or occasionally. The first two groups will have to register with the State Bar and pay assorted dues and fees, comply with the Bar’s MCLE requirements (all three years in one year!), and obey all the other obligations of State Bar membership — except passing the bar exam. The latter two groups get “safe harbor” protection from charges of unauthorized practice and don’t have to register with the Bar, pay dues or fees, complete MCLE, or meet other State Bar requirements (except obeying rules of professional responsibility), let alone pass the bar exam. For out-of-state attorneys who practice here occasionally and are active members of the California Bar, the question now arises why they shouldn’t go inactive and shed the Bar’s requirements, paying not the full dues of $390 per year but the “inactive” dues of only $50. Underscoring that question is the state Supreme Court’s action Feb. 18 in Hoffman v. State Bar, 113 Cal.App.4th 630 (2003), in which I represented Phoenix lawyer Louis J. Hoffman. The court denied review of a First District Court of Appeal decision upholding the state’s laws denying the right to vote or be a candidate in State Bar elections to members who do not maintain their “principal office for the practice of law” within California Business & Professions Code § 6015, 6018. The high court also ignored an invitation to deal with the question by rule-making. It thus preserved the state’s discrimination against those same out-of-state Bar members who now are free to bid the Bar a multijurisdictional goodbye. We’re talking about 11,000 lawyers. That’s the number of active members of the California Bar — out of the total of 145,000 — who maintain their principal law office in some other state or country. These non-voting members outnumber the voting populations of four of the nine existing State Bar districts. And these 11,000 members enrich the Bar with some $4 million annually in dues. Hoffman, an active member of the California Bar, challenged his disenfranchisement and disqualification, relying on equal protection and freedom of speech. No court previously had decided whether there is a constitutional right to vote in or be a candidate in State Bar elections. Crucial under the equal protection clause, both sides agreed, was the proper level of scrutiny. While acknowledging that the right to vote generally is “considered fundamental” and demands “careful or strict scrutiny,” the court of appeal concluded that in this case “no fundamental right [was] implicated,” so the rational-basis test applied. The court gave three reasons. First, the State Bar is “primarily an advisory body” and has only powers delegated to it by the Legislature or Supreme Court. Hoffman had pointed to the Bar’s constitutional status and its many governmental powers, delegated or not. He also noted that, limited as the Bar’s powers might be, he sought only the same vote that in-state members had. Second, the court relied on cases holding that “limited purpose” government entities, like irrigation districts, may limit their franchise to persons “disproportionately” affected by the entity — like landowners whose land may be assessed, e.g., Ball v. James, 451 U.S. 355 (1981). Hoffman agreed that, given the Bar’s purpose of regulating lawyers, its franchise could be denied to nonlawyers. But, he argued, that didn’t justify denying the vote to out-of-state lawyers who must pay the same dues and comply with all the same requirements as their in-state colleagues who are allowed to vote. Third was the territorial argument. Stressing that a municipality’s franchise can be limited to its residents, the court said reserving the Bar’s franchise for in-state members was akin to that. Since Hoffman presumably could vote in the Arizona Bar, letting him vote in the California Bar would be like letting him vote in two municipalities, the court suggested. Hoffman replied that the State Bar, in the court’s own words, was “not a territorial entity,” but a “professional association,” so the relevant political community was defined not territorially, but professionally. Just as a resident of San Francisco can vote for both mayor of San Francisco and governor of California, because he is a member of both communities, so lawyers can be members of the bar of more than one state if they meet the requirements of each, Hoffman argued. Having thus concluded that there was no “fundamental right to vote” in State Bar elections and hence no need for close scrutiny, the court applied the rational basis test and found it met. Restricting the vote to in-state members promotes “the legitimate purpose of local representation,” the court said. The court went on to reject Hoffman’s claimed right to serve on the State Bar Board and his First Amendment arguments (finding the burden on his associational rights “minimal”). Missing from the Hoffman opinion was the historical context of the case. The Supreme Court three times has struck down (under the Privileges and Immunities Clause) state residency requirements barring practice by out-of-state lawyers, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). The court has spoken of “�erect[ing] fences against out-of-state lawyers.’” Id. at 285, n.18 (quoting former ABA president). The court has used its supervisory power to strike down an in-state- office requirement for admission to a federal district court’s bar, calling the rule “unnecessary and irrational,” Frazier v. Heebe, 482 U.S. 641, 649 (1987). And the California Supreme Court has explained that the rule in Frazier “discriminated against out-of-state attorneys, a classification that traditionally has been viewed as constitutionally suspect,” Warden v. State Bar, 21 Cal.4th 628, 643-44 n.9 (1999). The court of appeal in Hoffman didn’t mention this statement, let alone apply it. California’s in-state-principal-office requirement nicely bookends the Supreme Court’s new rules on multijurisdictional practice. If one practices in California only occasionally, why pay the Bar’s full dues and put up with all the other pestering demands of State Bar membership, when that is no longer necessary? The coming of multijurisdictional practice may start the decline of out-of-state membership in state bars. Such a loss of members — and, more sadly, revenues — will be poetic justice for the State Bar of California. That organization long has shamelessly exploited its out-of-state members, raking in their dues while denying them political rights in the Bar’s governance. The Bar has fought in court hard and (so far) successfully, spending a good deal of its members’ money, to keep its members from voting. Now that the State Bar has lost its de facto monopoly over the practice of law in California, it may be payback time. Stephen R. Barnett is the Elizabeth J. Boalt Professor of Law Emeritus at Boalt Hall. His e-mail address is [email protected].

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