Practicing law while inactive in all state bars? Forum

[Anonymous User]

I'm a member of a state bar in State A. I'm also a member of a Federal Court B in Texas. The federal court required being a member of a State bar, so I used my State Bar A membership to become a member of Federal Court B. I'm not a member of the Texas state bar. 100% of my practice is in Federal Court B. Can I go to inactive status in State A without breaking any rules (which would allow me to avoid paying dues for a state bar in a state in which I don't practice along with avoiding dealing with the CLE requirements in State A)? Note that this would mean that I would be inactive in all state bars.

If I can go inactive in State A without breaking any rules, does being a inactive member of State Bar A constitute being in "good standing" for admission into other federal courts? (It's possible that I will need to be admitted to practice in other federal courts, at some point. Some federal court will grant you admission with solely another federal court bar membership, but most seem to at least require being a member in good standing of some state bar. Although, I guess I could always just pay active dues in State A to quickly convert to an active member there if I really needed to for the purpose of getting admitted to another federal court.)

[dixiecupdrinking]

I don't know the answer, but my hunch is that you are taking a much too limited view of what it means to "practice." Your "practice" might be entirely in federal court but many things you do outside of court also constitute the practice of law. In order to enter into an attorney-client relationship you have to be an attorney, which for all intents and purposes you aren't if you aren't a member of the bar in the state in which you're located.

Think about corporate lawyers. They never go to court at all. They still have to be members of the bar.

[Anonymous User]

I'm certain the answer is no. While you may technically be able to maintain admission the Federal Court, you would still be engaged in unauthorized practice of law in the state in which you are barred assuming that you live there and your clients are from there. If you live in Texas or were representing Texas clients, you were possibly already engaged in unauthorized practice of law unless you had local counsel, were practicing under the supervision of someone admitted to that state bar while admission was pending or fit one of the other few exceptions (mostly federal gov't lawyers and in house lawyers with a limited practice).

[zot1]

I'm a member of a state bar in State A. I'm also a member of a Federal Court B in Texas. The federal court required being a member of a State bar, so I used my State Bar A membership to become a member of Federal Court B. I'm not a member of the Texas state bar. 100% of my practice is in Federal Court B. Can I go to inactive status in State A without breaking any rules (which would allow me to avoid paying dues for a state bar in a state in which I don't practice along with avoiding dealing with the CLE requirements in State A)? Note that this would mean that I would be inactive in all state bars.

If I can go inactive in State A without breaking any rules, does being a inactive member of State Bar A constitute being in "good standing" for admission into other federal courts? (It's possible that I will need to be admitted to practice in other federal courts, at some point. Some federal court will grant you admission with solely another federal court bar membership, but most seem to at least require being a member in good standing of some state bar. Although, I guess I could always just pay active dues in State A to quickly convert to an active member there if I really needed to for the purpose of getting admitted to another federal court.)

I really can't help but note that I can't believe you're a lawyer asking this question specially because you're seeking legal advice.

You can't practice law without holding an active license in a state.

But to be safe, call up the state bar or ask the federal bar if you can without disclosing your name or ask a lawyer or do some legal research...

[Anonymous User]

All my practice is in federal court, too. To get admitted I had to show that I was an active member of a state bar. I have to prove to my employer every year that I'm an active member of my originating state bar. If I go inactive I can't continue to practice. So I'm pretty sure the answer to your question is no.

[BVest]

Word your question another way: "Can I practice law without a license?" God help you if you don't know the answer to that one.

[Anonymous User]

You guys are probably right regarding not being able to practice law in federal court without some state bar license. But practicing without being admitted in a state isn't as crazy of a concept as some of you are making it out to be--another way of looking at this is that I am member of the federal court B's bar (in Texas). That is a license to practice law in that federal court, including all aspects of client representation (i.e. giving them advice). Notably, I'm not a member of the Texas state bar, and many other attorneys who practice at this federal court also are not members of the Texas state bar, and there's nothing unethical about that. Being a member of a state bar only authorizes you to practice law in the state courts within that state. Federal court is an another jurisdiction entirely, and being a member of that federal court's bar is the thing that authorizes you to practice law in that court. So I don't think the reason I would need to continue to be a member of some state bar is to avoid the unauthorized practice of law; rather, the only reason I think I might need to continue to be a member of some state's bar is because (maybe) federal courts require/expect you to continue to keep an active license in some state (maybe because it was the underlying license that got you admission to the federal court?).

I'm certain the answer is no. While you may technically be able to maintain admission the Federal Court, you would still be engaged in unauthorized practice of law in the state in which you are barred assuming that you live there and your clients are from there. If you live in Texas or were representing Texas clients, you were possibly already engaged in unauthorized practice of law unless you had local counsel, were practicing under the supervision of someone admitted to that state bar while admission was pending or fit one of the other few exceptions (mostly federal gov't lawyers and in house lawyers with a limited practice).

The thing you're missing here is that I am not licensed to practice law in the Texas state courts (My state license isn't in Texas; it's in another state). I have 0 clients in "State A." I know for a fact that my practicing in the Texas federal court with only being admitted to that court isn't the unauthorized practice of law. There are a ton of attorneys who practice in federal court that don't sit within the state in which they are admitted to practice law. Being a member of Federal Court B's bar is basically a license to practice law in that court (including all aspects of client representation).

Word your question another way: "Can I practice law without a license?" God help you if you don't know the answer to that one.

This isn't really correct, though. Being a member of Federal Court B's bar is basically a license to practice law in that court. You state bar license does not allow you practice law in federal court; federal court is an entirely different jurisdiction. (Just think about it, you can get indicted/sued in state court, win, and then get indicted/sued again for that exact some transactions or occurrence in federal court on the basis of a federal statute.)

I don't know the answer, but my hunch is that you are taking a much too limited view of what it means to "practice." Your "practice" might be entirely in federal court but many things you do outside of court also constitute the practice of law. In order to enter into an attorney-client relationship you have to be an attorney, which for all intents and purposes you aren't if you aren't a member of the bar in the state in which you're located.

This is patently incorrect. Being a member of the federal court's bar authorizes you to practice law in all respects (including client counseling) in that federal court. It just wouldn't make sense otherwise, because you wouldn't be able to practice at all in federal courts that sit in states in which you are not licensed to practice in the state courts.

[ScottRiqui]

Looks like it varies from District to District in Texas. From John Okray's "U.S. Federal Courts: Attorney Admission Requirements:

Eastern District - "State Bar Membership Required - Any state or federal"

Northern District - "State Bar Membership Required - Any state or District of Columbia"

Southern District - "State Bar Membership Required - Any U.S. State, District of Columbia or Territory. If not member of the Texas bar, must also be a member of the U.S. District Court."

Western District - "State Bar Membership Required - Any state. An applicant who is not licensed to practice in any state may apply for admission, however, if admitted, such an attorney must obtain a license from the highest court of any state within one year after being admitted to the bar of this Court."

[A. Nony Mouse]

Just call up the clerk's office in the district at issue and ask. My understanding is that you have to maintain an active membership in some state bar, even if it doesn't have to be the one where your federal district is located (this is the situation I am in; I only practice in federal court in a district not located in the state where I'm admitted, but I have to show that I'm active in that state and current on my CLEs). Also ask your employer, because what they want trumps what you want anyway.

I know of plenty of clerks who go inactive, because clerking isn't understood as practice. I am 99% positive that if you are practicing in federal court you still have to be an active member somewhere, though.

[Anonymous User]

Just call up the clerk's office in the district at issue and ask. My understanding is that you have to maintain an active membership in some state bar, even if it doesn't have to be the one where your federal district is located (this is the situation I am in; I only practice in federal court in a district not located in the state where I'm admitted, but I have to show that I'm active in that state and current on my CLEs). Also ask your employer, because what they want trumps what you want anyway.

Good point. I'll probably just start by asking my employer.

I am 99% positive that if you are practicing in federal court you still have to be an active member somewhere, though.

This is my intuition, as well. The thing that makes me question this is that some federal district courts allow admission solely based on another federal district bar admission (for example, the EDTX), which seems to imply that they don't require active state bar admission.

[ScottRiqui]

This is my intuition, as well. The thing that makes me question this is that some federal district courts allow admission solely based on another federal district bar admission (for example, the EDTX), which seems to imply that they don't require active state bar admission.

I think that might just be kicking the problem down the road, though - EDTX might allow membership based solely on membership to another federal court, but then you have to find a federal court somewhere else that doesn't require membership in any state's bar.

[dixiecupdrinking]

Looks like you're right (though note this implies a prohibition on counseling on any state law issues even in relation to federal court proceedings): https://www.law.uh.edu/libraries/ethics ... /eo516.pdf. Interesting.

Nothing constructive to add.

[CanadianWolf]

Inactive = not authorized to practice law.

[Anonymous User]

This is my intuition, as well. The thing that makes me question this is that some federal district courts allow admission solely based on another federal district bar admission (for example, the EDTX), which seems to imply that they don't require active state bar admission.

I think that might just be kicking the problem down the road, though - EDTX might allow membership based solely on membership to another federal court, but then you have to find a federal court somewhere else that doesn't require membership in any state's bar.

It seems like there's a number of federal courts that allow admission solely based on membership from to another federal court (although, it's not nearly as common as federal courts that require admission to a state bar to gain admission). Although, moving from inactive to active status in a state bar is really just a matter of paying the state bar some additional money and takes a day at most.

Looks like you're right (though note this implies a prohibition on counseling on any state law issues even in relation to federal court proceedings): https://www.law.uh.edu/libraries/ethics ... /eo516.pdf. Interesting.

Nothing constructive to add.

It's true that you couldn't advise clients on entirely state law matters in connection with your federal practice (although, this is less of an issue than the article makes it seem like--I've never encountered it, but I don't do immigration). There is, however, a unique little wrinkle about federal court practice. Assuming you're competent or can become competent, you can take on cases that are in federal court solely based on diversity jurisdiction. In other words, you can represent clients on something like a breach of contract or tort case (which will be entirely based on state law) in federal court, despite not being authorized to handle that exact same case in state court. If you read the language of the opinion you cited more carefully, it's consistent with that: "However, any such representation that also involves advice or other legal services relating to matters of Texas law would not be within the scope of this assumption and may, depending on the circumstances, constitute the unauthorized practice of law in Texas." Diversity jurisdiction cases in fed court is one of the circumstances that would not constitute the unauthorized practice of law. (Although, you might be violating an ethical rule, nonetheless, if you're trying to take on an out-of-state case that you're not competent to handle.)

[dixiecupdrinking]

This is my intuition, as well. The thing that makes me question this is that some federal district courts allow admission solely based on another federal district bar admission (for example, the EDTX), which seems to imply that they don't require active state bar admission.

I think that might just be kicking the problem down the road, though - EDTX might allow membership based solely on membership to another federal court, but then you have to find a federal court somewhere else that doesn't require membership in any state's bar.

It seems like there's a number of federal courts that allow admission solely based on membership from to another federal court (although, it's not nearly as common as federal courts that require admission to a state bar to gain admission). Although, moving from inactive to active status in a state bar is really just a matter of paying the state bar some additional money and takes a day at most.

Looks like you're right (though note this implies a prohibition on counseling on any state law issues even in relation to federal court proceedings): https://www.law.uh.edu/libraries/ethics ... /eo516.pdf. Interesting.

Nothing constructive to add.

It's true that you couldn't advise clients on entirely state law matters in connection with your federal practice (although, this is less of an issue than the article makes it seem like--I've never encountered it, but I don't do immigration). There is, however, a unique little wrinkle about federal court practice. Assuming you're competent or can become competent, you can take on cases that are in federal court solely based on diversity jurisdiction. In other words, you can represent clients on something like a breach of contract or tort case (which will be entirely based on state law) in federal court, despite not being authorized to handle that exact same case in state court. If you read the language of the opinion you cited more carefully, it's consistent with that: "However, any such representation that also involves advice or other legal services relating to matters of Texas law would not be within the scope of this assumption and may, depending on the circumstances, constitute the unauthorized practice of law in Texas." Diversity jurisdiction cases in fed court is one of the circumstances that would not constitute the unauthorized practice of law. (Although, you might be violating an ethical rule, nonetheless, if you're trying to take on an out-of-state case that you're not competent to handle.)

So without being barred in Texas, you can open a law office in Texas (or, at least, work for a law firm in Texas), engage clients in Texas, and advise them on Texas law, so long as any suit, which may not even have been filed yet, will be brought in federal court?

[MKC]

Check out Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006).

This sweeping view of federal authority to regulate “federal” law practice has been echoed in several federal court decisions. The most recent example is Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006). Surrick was disbarred from practicing in Pennsylvania state court for five years for leveling false accusations of case fixing against local judges, and the U.S. District Court for the Eastern District of Pennsylvania imposed a reciprocal suspension of 30 months. When the federal court suspension expired (long before the state suspension did), Surrick sought a declaratory judgment permitting him to continue to maintain a Pennsylvania law office for the purpose of maintaining his federal court practice. The Third Circuit permitted him to do so, citing Sperry and Supremacy Clause principles. The court noted that “a federal court has the power to control admission to its bar and to discipline attorneys who appear before it,” and neither state courts nor state regulators can interfere with it. [449 F.3d at 531, citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991).] This power, the court held, extends to controlling the “incidents” of the right to practice, including maintaining an office in the state. [449 F.3d at 532–33.] The court rejected the contention that Surrick’s handling of diversity cases, which often involve state law, meant that he fell within the ambit of state regulators: “The Office of Disciplinary Counsel cannot point to any authority indicating that a federal court’s power to determine who may practice law before it depends on the type of cases a lawyer intends to practice.” [Id. at 534.]

http://www.newyorklegalethics.com/u-s-c ... jp-issues/

[dixiecupdrinking]

Check out Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006).

This sweeping view of federal authority to regulate “federal” law practice has been echoed in several federal court decisions. The most recent example is Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006). Surrick was disbarred from practicing in Pennsylvania state court for five years for leveling false accusations of case fixing against local judges, and the U.S. District Court for the Eastern District of Pennsylvania imposed a reciprocal suspension of 30 months. When the federal court suspension expired (long before the state suspension did), Surrick sought a declaratory judgment permitting him to continue to maintain a Pennsylvania law office for the purpose of maintaining his federal court practice. The Third Circuit permitted him to do so, citing Sperry and Supremacy Clause principles. The court noted that “a federal court has the power to control admission to its bar and to discipline attorneys who appear before it,” and neither state courts nor state regulators can interfere with it. [449 F.3d at 531, citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991).] This power, the court held, extends to controlling the “incidents” of the right to practice, including maintaining an office in the state. [449 F.3d at 532–33.] The court rejected the contention that Surrick’s handling of diversity cases, which often involve state law, meant that he fell within the ambit of state regulators: “The Office of Disciplinary Counsel cannot point to any authority indicating that a federal court’s power to determine who may practice law before it depends on the type of cases a lawyer intends to practice.” [Id. at 534.]

http://www.newyorklegalethics.com/u-s-c ... jp-issues/

Interesting. It feels counterintuitive but makes sense when you think about it this way. Guess it would have odd federalism implications to effectively let states act as gatekeepers to the federal courts.

[Anonymous User]

So without being barred in Texas, you can open a law office in Texas (or, at least, work for a law firm in Texas), engage clients in Texas, and advise them on Texas law, so long as any suit, which may not even have been filed yet, will be brought in federal court?

Yes.