Federal appeals panel: California can decide who can practice law in state
California rules prohibiting attorneys who reside in the state who are
not members of its bar from practicing law on a case-by-case basis do not
violate the First Amendment, a federal appeals court panel has ruled.
Richard Paciulan and William A. Kruse, attorneys licensed in
Massachusetts and Colorado respectively, are both California residents but are
not members of the California bar.
Because they are California residents, Paciulan and Kruse cannot apply
for pro hac vice admission to the California bar. Pro hac vice, a Latin term meaning “for this turn
only,” refers to occasions in which an out-of-state attorney is granted
permission to practice in a local jurisdiction for the duration of a particular
Paciulan and Kruse alleged in their March 1998 lawsuit that the rules
barring them from applying for pro hac vice status violated their First
Amendment rights by:
Limiting speech on behalf of their clients.
Preventing them from freely associating with clients and other
Restricting them from petitioning for redress of
In March 1999, U.S. District Judge Susan Illston rejected the
plaintiffs’ constitutional challenges and dismissed the lawsuit. On appeal, a
three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously affirmed
the lower court’s ruling in Paciulan v.
The panel noted that the plaintiffs’ “sweeping formulation of the
First Amendment” would doom “any regulation of bar membership.”
“No case has ever suggested that states are constitutionally barred
from regulating admission to their respective bars,” the panel wrote in its
Oct. 17 opinion. “States traditionally have enjoyed the sole discretion to
determine qualifications for bar membership.”
The panel cited a recent 9th Circuit
National Association for the Advancement of
Psychoanalysis v. California Board of Psychology holding that
the state of California could regulate the licensing of psychoanalysts. Just as
the state can regulate the licensing of psychoanalysts, the state can regulate
and license attorneys, the panel said.
Joseph R. Gianninni, attorney for the plaintiffs, called the panel’s
decision a “disgrace.” He said he would likely appeal to the Supreme Court.
In U.S. v. Playboy Entertainment Group,
the Supreme Court ruled “that laws intended or designed to
restrict or suppress specific speakers violate general First Amendment
principles,” he said. “This is speaker discrimination, a form of content
Calls to the California attorney general’s office were not