It may be bad form to respond to my own post, but I’ve received some off-list responses from list members. One suggested that Sperry v. Florida, 373 U.S. 379 (1963) gives attorneys the right to practice with respect to federal law per the Supremacy Clause. My response was:

“Unless there is a specific federal statute allowing voting rights practice by those who are not otherwise authorized to practice law, I don’t think Sperry helps. It suggests, on the contrary, that states have the right to regulate federal practice absent a federal statute that would preempt such regulation.”

Another list member suggested that this issue of potentially unauthorized practice is a live one for election law practitioners with clients in several states. I’m curious whether other list members agree.

The Cal. S. Ct.’s Birbrower decision that I mentioned in my earlier post deals with California’s unauthorized practice of law statutes, Cal. Bus. & Prof. Code sections 6125 and 6126. I thought I also should mention California Rule of Court section 9.48 (promulgated under the California Constitution’s grant of authority to the Cal. S. Ct. to regulate the admission and discipline of attorneys) :

Rule 9.48. Nonlitigating attorneys temporarily in California to provide legal services

…

(c) Permissible activities

An attorney who meets the requirements of this rule[*]and who complies with all applicable rules, regulations, and statutes is not engaging in the unauthorized practice of law in California if the attorney:

(1)Provides legal assistance or legal advice in California to a client concerning a transaction or other nonlitigation matter, a material aspect of which is taking place in a jurisdiction other than California and in which the attorney is licensed to provide legal services;

(2)Provides legal assistance or legal advice in California on an issue of federal law or of the law of a jurisdiction other than California to attorneys licensed to practice law in California; or

(3)Is an employee of a client and provides legal assistance or legal advice in California to the client or to the client's subsidiaries or organizational affiliates.

…

(h) Effect of rule on multijurisdictional practice

Nothing in this rule limits the scope of activities permissible under existing law by attorneys who are not members of the State Bar of California.

[from http://www.courtinfo.ca.gov/rules/index.cfm?title=nine]

[*Scarberry comment: Simplifying this somewhat, Rule 9.48(b) requires that the attorney have an office in a state or US jurisdiction other than California, be licensed in that state or jurisdiction, and be admitted and in good standing in at least one state or other US jurisdication.]

Note that Rule 9.48(c) does not apply to protect an attorney who is not admitted in California unless at least one of the following requirements is met:

(1) “a material aspect” of the matter is taking place in another jurisdiction in which the Panel’s Voting Rights counsel is licensed (which would not seem to be the case unless preclearance by the DOJ is thought to take place in DC and is thought to be a “material aspect” of the matter for which the counsel is retained); or

(2) the Voting Rights counsel is providing advice about federal law to California-licensed attorneys (which does not seem to be the case here, since the voting rights act counsel will be advising the Panel); or

(3) the Voting Rights counsel is an employee of the Panel (which the Panel’s request for proposals contemplated as a possibility but which if I remember correctly was not a feature of any the finalists’ proposals).

None of those requirements seems to be met here (except perhaps requirement 1, if it is stretched quite a bit). Under Rule 9.48(h) that does not mean that the Panel’s non-California-licensed finalists would be engaging in unauthorized practice of law if hired, but it does mean that Rule 9.48 does not itself authorize them to provide legal advice to the Panel (unless requirement 1 is met). I think that leaves us with Bus. & Prof. Code sections 9125 and 9126, as interpreted in Birbrower. And that leaves us with a substantial issue, as I read Birbrower. I don’t believe either of the Maryland finalists addressed this concern about authorization to practice in California, which surprises me.

Mark Scarberry

Pepperdine

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