I’m a Californian, and so the Panel’s work is particularly important to me. When I looked at the link Rick gives below to see who the four finalists were for the Panel’s Voting Rights Act legal counsel, I was surprised to see that only two of them were described on the web page as being law firms, and the other two seemed to be consulting firms located in Maryland. Since the Panel was seeking to hire legal counsel for its work in California, I wondered how consulting firms (especially Maryland consulting firms) could be appropriate, and so I did a little checking on the Internet. Again, I was surprised by what I found, and thus I dug a bit deeper, including checking with a colleague (who is a professional responsibility expert) about California law on authorization to practice law.

My question is whether the Voting Rights Act counsel needs to be authorized to practice law in California. The two consulting groups do not seem to be authorized to practice law in California (nor apparently are the principals of the consulting groups, who are non-California lawyers and who, it seems, essentially *are* the consulting groups).

Initially I thought that the counsel would be giving substantial advice concerning California election law (including the initiative that created the Panel). If that were the case, then I think it is fairly clear that the counsel would have to be admitted in California. See Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304 (1998). But it seems that the Panel is hiring counsel to advise it specifically with respect to federal Voting Rights Act issues (though also perhaps incidentally with respect to some aspects of California law). See http://www.wedrawthelines.ca.gov/downloads/march_documents/rfi_voting_rights_counsel.pdf.

If this were a litigation matter in federal court, then, as I understand it, California could not directly determine who could represent the Panel. (At least it couldn’t if the Panel were a private party; I suppose a California governmental entity could be required by state law to use an attorney admitted to practice in California.) But California and other states do indirectly affect who can appear in federal court because many (most?) federal courts require attorneys who appear before them to be admitted in the forum state (except for attorneys appearing pro hac vice after associating local counsel).  

This is not, however, a litigation matter; the Panel specifically states that it is not seeking litigation counsel. It seems that the Voting Rights Act counsel would be coming to California at least several times to provide advice to the Panel and to appear at public meetings. It’s possible that, under Birbrower, California law requires that the Panel’s counsel be qualified to practice in California.

This kind of issue must come up all the time for election law practitioners. What is the practice with respect to providing ongoing federal election law advice to clients? I presume that a lawyer who lives in California must be admitted in California to provide ongoing advice to a California client with respect to federal law. But may an attorney who does not live in California provide ongoing advice to a California client on federal law issues without being admitted in California? (In large firms I suppose such advice could be provided through a firm member who is admitted in California, but what if there is no such member of the firm or if the lawyer has a solo practice?) What if the attorney goes to California several times a year to provide advice in person?

Sorry if there is an obvious answer to this question. I’m not a practitioner, and I’m also not a professional responsibility expert.

Mark Scarberry

Pepperdine