American Bar Association Conclusions Supporting Reciprocal Admission

      1. The US Supreme Court has held that professional norms articulated by the American Bar Association are "(s)tandards to which we have referred as ‘guides to determining what is reasonable.’" Wiggins v. Smith, 539 US 510, 524 (2003). The American Bar Association Report of the Commission on Multijurisdictional Practice (2002) carefully studied Client Needs in the 21st Century in open hearings held all over the United States, recommending State’s adopt admission on motion for experienced attorneys, concluding the requirement and ritual of taking another bar exam injures the public. This ABA conclusion was facilitated by revolutionary changes in technology and increasing globalization, endorsed by the Conference of Chief Justices, and adopted in 39 States.  The ABA also recommended that U.S. District Courts eliminate “local” rules that deny reciprocal general admission privileges to experienced sister-state attorneys from outside the forum State because such discriminatory rules — are anti-competitive, inefficient, drive up the costs of litigation, and interfere with the right to counsel of choice. 
 
      2. The ABA MacCrate Study on Lawyer Competence Finds Bar Exams Test Only One of Ten Essential Lawyer Skills.

      Cognitive Scientific Findings On Expertise and Expert Performance Support Reciprocal Admission

      3. The ABA’s recommendation for reciprocal licensing on motion for experienced attorneys is collaterally reinforced by scientific findings from the field of expertise and expert performance. See K. Anders Ericsson, Ed., The Cambridge Handbook of Expertise and Expert Performance (Cambridge University Press 2006). Scientists have concluded that it takes 10,000 hours to develop true expertise in any field, taking the brain this long to assimilate all that it needs to know to achieve true mastery. Experienced experts surpass novices, those new to a profession, in seven major ways: (a) generating the best solution; (b) pattern recognition; (c) qualitative analysis; (d) self-monitoring skills in terms of their ability and knowing what they don’t know; (e) choosing appropriate strategies; (f) seeing and exploiting opportunities; and (g) cognitive effort, meaning they work faster, with less effort, and greater control.  Id. at 27.  Cognitive scientists have concluded the highest levels of expertise, like Tiger Woods golf swing at the Masters on the 18th hole, or Newton postulating the laws of gravity “in a contemplative mood …occasioned by the fall of an apple,” are characterized by contextually based intuitive actions that are automatic, sub-conscious, and difficult or impossible to report verbally. Thus, the rule of thumb that one State’s lawyers are more competent to practice law than another State’s lawyers — a theory born in the 1930s separate but equal era — has been rejected by the ABA, empirically refuted by cognitive science, and disavowed by the High Court in Supreme Court of Virginia v. Friedman,  487 U.S. 59 (1988)(holding that bar admission on motion is constitutionally protected).

      4. Dr. Norman is one of the experts writing a chapter in the Cambridge Handbook of Expertise and Expert Performance, supra.  Dr. Norman writes:

“Study after study has shown that it is almost impossible to get judges to agree on scores for essay answers."

      5. Evolutionary psychology concludes we have modules in our brains that have evolved from natural selection, similar to the modules in our brains where speaking (Broca’s area) and listening to words (Wernicke’s area) is processed, to exclude humans and to be aggressive and prejudiced against people who are not members of our primary group.  See Stephen P. Hinshaw, Chapter 22 “Roots of Religion, Aggression, and Prejudice,” Origins of the Human Mind (Teaching Company 2010) p. 144. A trigger for aggression and prejudice is out-group status, coming from a different family, group, or religion. “We wish to vanquish, dominate, or even annihilate the oppressed group, lest they oppress us; and we developed a set of cognitive strategies to tell ourselves that we are superior to these out groups.” Id. at 146.  We tend to stigmatize them, pre-judge them, and discriminate against them so that we can feel superior to them; as Hitler did with his ethnic cleansing against Jews, blacks, gays, and lesbians for the purity of the Aryan race; as the local Rules do against plaintiffs and other American citizens.  

      The California Experienced Attorneys’ Bar Exam Fails to Meet Testing Standards

      6.   The sacred cow — the popularly held belief that the California bar exam for experienced sister-state attorneys is the gold standard — is a myth proved false under examination.  Five nationally respected testing experts, including experts from the National Conference of Bar Examiners and the California State Bar’s own testing expert, have concluded similar 100% subjective high-stakes licensing tests are not valid or reliable measuring devices. There are standard statistical indices for the reliability of test scores. The most basic of these is the standard error of measurement.  A reliability coefficient can be defined in terms of the average magnitude of the standard error. Indisputable evidence proves this licensing test, exam after exam, has a standard measurement error greater than 52%, and sometimes a 60% error rate, when the industry standard is preferably a 10% error rate.   These 100% subjective tests fail to meet well established testing Standards. Moreover, these test results are inadmissible in federal court under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993) and the Federal Rules of Evidence 700 series.  There is no cause and effect nexus between practice in the U.S. District Courts and this licensing test.  

      7. There are other fundamental deficiencies in giving subjective entry level licensing tests to experienced attorneys.  Knowledge and skill acquired after licensing from self-development and experience cannot be tested for several reasons.  First, there is the matter of jurisdiction.  No State bar exam tests many exclusive areas of federal practice such as patents, intellectual property, copyrights, trademarks, bankruptcy, immigration, admiralty, and federal taxation. Second, one cannot be an expert without experience.  It is well known that “practice makes perfect.”  There is a biological basis for this truth:  Neurons that fire together wire together.  Synaptic connections become stronger with use. The more you do something the better you get at it. Third, the cognitive science of Expertise and Expert Performance proves after licensing, acquired knowledge is often subconscious, intuitive and cannot be tested.  Cognitive science illustrates there is an enormous difference between those new to a profession and experienced experts.  That difference is intuitive pattern recognition formed by experience.  Dr. Norman writes:

“Studies of expertise in many other domains — chess, computer programming, physics — show substantially the same thing.  Experts become experts by amassing a huge body of both formal and experiential knowledge.” Id. at 20.

      PLAINTIFF INJURIES
      8. Plaintiff TANESHA WALLS BLYE (30s) is a black attorney with six years experience in federal practice. Plaintiff has over 12,000 hours of unblemished attorney experience.  Plaintiff, like many other Americans, recently moved to another State because of her husband’s opportunity to advance his career. Plaintiff is stigmatized and injured personally, professionally, and economically by being denied federal general bar admission privileges because of the California U.S. District Court closed shop "local" rule that concludes she is unfit to practice federal law because she is not a member of the "in-group" and deified State Bar of California.  As in Plessy v. Ferguson 163 U.S. 537 (1896), where in the 1890s, Homer Plessy, who was 1/8th black, was barred from riding in a “Whites only” train car by Louisiana State law, Plaintiff is categorically disqualified from general bar admission privileges because the California Federal District Court “local” Rules exclusively borrow California state bar admission rules, violating In Re Poole, supra, and a century of Supreme Court precedent holding the State and federal court bars are each distinct and autonomous. By local Rule, like Homer Plessy, Plaintiff is disqualified to appear even for one turn (pro hac vice).  Plaintiff’s federally induced injury dehumanizes her; it is a historical vestige stemming from the discredited separate-but-equal culture; identifying and cloaking her, and her family with the stigma of congenital inferiority;  denying her equal employment opportunity, segregating and pre-judging her as a second-class citizen, defaming her and tens of thousands highly qualified federal practice lawyers, fencing off free access to the Courts for already unrepresented minorities, reaffirming Plessy v. Ferguson is good law for bar admission in U.S. District Courts because of “local” Rules the ABA has recommended eliminating 15 years ago. 

      9.  Plaintiff JOEL D. JOSEPH (60s) has been a member of the bar in good standing of numerous United States and Federal Courts for 36 years. Plaintiff has over 70,000 hours experience as a lawyer.  He graduated from Georgetown University Law Center. He has taught law school classes. He has written 10 books on the law; Justice Thurgood Marshall wrote a forward for his book, Black Mondays – Worst Decisions of the Supreme Court (National Press 1987, Imprint Press 2008). Plaintiff’s practice is primarily federal; he has appeared in federal courts in 25 jurisdictions.  Plaintiff lives in California.  He is injured by the California Federal District Court “local’ rules that categorically disqualify him from both general and pro hac vice admission, as if he is contaminated, an alien, and subhuman because he is not a member of the deified State Bar of California; a political organization and union that has pled guilty to illegal lobbying; and has been held by the U.S. Supreme Court to have violated its members’ First Amendment rights. 

FIRST CAUSE OF ACTION
VIOLATION OF 28 U.S.C. § 332(d)(4), 28 U.S.C. §§ 2071(a), 2072(b), FRCP 83

      10. Congress has enacted 28 U.S.C. § 332(d)(4), placing on the Judicial Council a mandatory duty to periodically review the Federal District Court local rules within their circuit for consistency with  28 U.S.C. § 2071(a), and 28 U.S.C. § 2072(b), and to abrogate any local Rule found inconsistent. Plaintiffs filed an administrative petition with the Ninth Circuit Judicial Council on October 8, 2009, with supporting exhibits and legal citations.  Plaintiffs have not received any response.  Plaintiffs have not even received an acknowledgment of filing.  We can think of attention as a limited resource having a size, capacity, or load. Federal judges already have a million things to attend in keeping up with their docket and have difficulty attending to all of their duties, in large part because of judicial vacancies.  As of May 3, 2010 there are currently 104 vacancies out of 876 Article III judges.  Judicial emergencies have been declared in 40 of these vacancies; an emergency in the District Court is defined as where the vacancy has existed over 18 months, and each judge is expected to decide 600 cases per year. According to Judicial Conference records there are presently three judicial vacancies on the Ninth Circuit that have been pending a weighted average of 836 days. Chief Justice John G. Roberts, Jr. has declared there is constitutional crisis that has been ignored far too long that undermines the integrity of the right to access to the courts. This constitutional crisis affects all litigants who seek access to the Courts in a United States of America that is further burdened by an economic crisis. 

      11. Section 2071(a) mandates that local Rules “shall be consistent.”  Section 2071(a) now expressly incorporates by reference the § 2072(b) standard of review.  That standard is local “(R)ules shall not abridge, enlarge or modify any substantive right.”  This is a revolutionary change because the standard of review for Federal District Court “local” Rules is now heightened.  Prior case law held the standard of review is rational basis.   Moreover, all of the admission rules proscribed under § 2072(b) provide reciprocal general admission. FRAP 45, Supreme Court 5; 5 U.S.C. § 500 (practice before federal agencies).

      12.  Below is a graphic depiction of District Court “local” admission rules.  They are not uniform and they are not consistent with the National Rules as is required by 28 U.S.C. § 2071(a).    The challenged patchwork of local rules is unlawful because they abridge, enlarge and modify the substantive rights located in the Bill of Rights, and others such as the statutory right to counsel in the federal courts.

      13.  The hypothesis that State admission is a necessary attribute of U.S. District Court bar members, in order to provide for supervision of the ethics of members of the District Court’s bar is false.  Barnard v. Thorstenn, 489 U.S. 546 (1989) held the Virgin Islands justification for discrimination against sister-state attorneys that it did not have the resources to police a nationwide bar membership was insubstantial. Tens of thousands of attorneys are reciprocally admitted in State and federal courts on the basis of a certificate of good standing, or an affirmation that the attorney is a member of the bar in good standing.

VIOLATION OF THE SUPREMACY CLAUSE

      14. Under the Supremacy Clause, procedural rules created by the judiciary cannot shrink or expand the scope of federal jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978); U.S. v. Sadler, 480 F.3d 932, 937 (9th Cir, 2007).  State law has virtually nothing whatsoever to do with many exclusive areas of federal jurisdiction and highly specialized substantive areas of law including patents, trademarks, copyrights, bankruptcy, taxation, securities, and admiralty.  Federal courts are bound to apply rules enacted by Congress over which it has legislative power. Stewart Organization, Inc. v. Ricoh Corp. 487 U.S. 22, 26 (1988). The “local” rules violate the Supremacy Clause by shrinking federal jurisdiction and conflating State jurisdiction with federal jurisdiction.   

       15.  The power of the States to control the practice of law cannot be exercised so as to abrogate federally protected rights. NAACP v. Button, 371 U.S. 415 (1963); Sperry v. Florida, 373 U.S. 379 (1963).  The California Supreme Court has repeatedly emphasized it has no right to determine who is admitted to the federal bar.  See, e.g. In re McCue 211 Cal. 57 (1930).  States simply do not have nor should they have jurisdiction over federal bar admission.  And Federal District Courts do not have the constitutional or statutory right to limit their own jurisdiction, by delegating federal jurisdiction over federal bar admissions to the state.   

      16. In US. v Ruehle, 583 F.3d 600 (9th Cir. 2009), the Court reversed a California District Judge invoking California State law on attorney-client privilege, holding under the Federal Rules of Evidence the federal common law of privilege is applicable.  The federal common law is admission on motion: FRAP 46, Supreme Court Rule 5, 5 U.S.C. § 500(b), Multidistrict Litigation Rule 1.4, and Local Rules in 34 Federal District Courts.  The District Court local rules in the Ninth Circuit that deny reciprocity invades the attorney-client privilege by relying on State law rather than federal law. 

      17. “In the realm of private speech or expression, government regulation may not favor one speaker over another.”  Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 828 (1995).  This inversion of the Supremacy Clause, i.e. making State law superior to the Rules Enabling Act, the Constitution, and the Supreme Court’s decision in Friedman, supra (holding admission on motion is constitutionally protected), warrants entry of a consent decree or stipulated judgment for the plaintiffs. 

      18. Requiring experienced attorneys to undergo the burdensome ritual of taking  another State bar exam to obtain District Court admission opens the door to State content discrimination and censorship, similar to what would occur if experienced federal judges were required to be re-confirmed by Congress every time a new President was elected.  It is a prior restraint on Plaintiffs’ First Amendment rights, including the right to petition U.S. District Courts.  Supreme Court decisions warn of the dangers of government censorship by licensing officials. “A law or policy permitting communication in a certain manner for some but not for others raises the specter of content and viewpoint censorship.  This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official.” See Lakewood v. Plain Dealer Publishing Co. 486 U.S. 750, 763 (1988).  “A scheme conditioning expression on a licensing body's prior approval of content presents peculiar dangers to constitutionally protected speech.” Thomas v. Chicago Park Dist., 534 U.S. 316, 321 (2002).  

VIOLATION OF DUE PROCESS

      19.  Neither the Ninth Circuit Judicial Council nor the U.S. District Courts have examined the empirical data underlying the California attorney’s exam. Standard 1.10 provides,

“Users should be given sufficient guidance to enable them to judge the degree of confidence warranted for any use or interpretation recommended by the test developer.  Test manuals and score reports should discourage over interpretations of information that may be subject to considerable error.  This is especially important if interpretation of performance on isolated items, small subsets of items, or subtest scores is suggested.” 

      20. The Standards also emphasize that evaluating acceptability (of a test) involves (a) professional judgment that is based on a knowledge of behavioral  science, psychometrics, and the community standards in the professional field to which the tests apply; (b) the degree to which the intent of the standard has been satisfied by the test developer and user; (c) the alternatives that are readily available (emphasis added); and (d) research and experimental evidence regarding feasibility of meeting the standard."    

Plaintiffs therefore request the following relief:

• An Order abrogating U.S. District Court “local” Rules in the Ninth Circuit that deny general admission privileges to plaintiffs and other non—forum sister-state attorneys.  
• An Order declaring Federal District Court “local” Rules that deny general admission privileges to non-forum State attorneys is unlawful.