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Brown v. McGarr

October 3, 1985


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 1267-Myron L. Gordon, Judge.

Author: Coffey

Before CUDAHY and COFFEY, Circuit Judges, and FARCHILD, Senior Circuit Judge.

The plaintiff, James Brown, appeals the district court's holding that the Northern District of Illinois' adoption of rules creating a trial bar to improve advocacy in the federal court and to supervise the practice of law did not deprive him of property without due process of law. WE AFFIRM.


The district court made the following findings of fact when granting the defendants' summary judgment motion and they are not in dispute. As part of a study of the competency of trial lawyers practicing in the federal counts, the Devitt Committee, appointed by Chief Justice Burger, surveyed the legal community and held public hearings around the country. the Devitt Committee published two reports of its findings and, in both reports, recommended, inter alia, that federal district courts impose a rule requiring attorneys to have trial experience before being allowed to appear alone in trials. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee's recommendations as part of a pilot program to improve the quality of advocacy in the federal courts. The Austin Committee published the proposed rules in the Chicago Law Bulletin and the Chicago Bar Record and held a public meeting on the proposed rules. On July 12, 1982, after this extensive period of public examination and comment, the District Court for the Northern District of Illinois adopted rules requiring attorneys to belong to a "trial bar" before being allowed to appear alone either on behalf of a defendant in a criminal proceeding or during testimonial proceedings in a civil case. The requirement of membership in the trial bar applies both to the Northern District of Illinois. In order to practice before the court as a member of the trial bar, an attorney must have four "qualifying units" of trial-type experience. N.D. Ill. General R. 3.00C (7). an attorney may receive a qualifying unit for participating as lead or as co-counsel at a trial, observing a trial in which a member of the trial bar supervises the observation, or participating in an approved trial advocacy course.*fn1 Id. at C. At least two of the four qualifying units must be obtained by participating in actual trials as lead or as co-counsel. Id. at C(7). The court may, in exceptional circumstances, waive the trial bar membership requirement if the client consents to representation by a non-member.*fn2 Id. at 3.10D. Prior to the adoption of the rules creating the trial bar, any member in good standing of the Northern District of Illinois Bar could appear alone in any proceeding.

The plaintiff, James Brown, was admitted to the bar of the Northern District of Illinois in 1977 but does not possess a sufficient amount of trial experience to be eligible for trial bar member ship. After the rules were adopted, the plaintiff filed suit as a representative of a class of attorneys deprived of the right to appear in in full proceedings without assistance, alleging that the rules of the Northern District of Illinois violated the Fifth Amendment prohibition against deprivation of property without due process of law. Because the subject matter of the complaint involved rules adopted by the Judges of the Northern District of Illinois, the case was reassigned to Senior Judge Myron L. Gordon of the Eastern District of Wisconsin. Judge Gordon held, in ruling on the defendants' motion for summary judgment, that the rules violated neither the plaintiffs' rights to substantive nor to procedural due process.


Brown asserts that the creation of the Federal Trial Bar of the Northern District of Illinois, in effect, disbarred him and that he had a due process right to "notice calculated to convey information regarding his disbarment pursuant to the adoption of the rules and an opportunity to defend against such action." Brown also argues that neither the district court's power to specify bar admission standards, nor its power to disbar attorneys for "deceit, malpractice, or other gross misconduct," nor its power to make or amend rules authorize the court to deny an attorney his "vested right to practice law" ("a property right in his law license") without affording the attorney "his due process rights to a hearing, to present evidence, to cross examine adverse witnesses, and to know upon what basis the defendants determined that they and other individuals of the class were not qualified to be trial attorneys." Moreover, the plaintiff contends that not only the district court but also Congress lacked the authority to promulgate the rules creating the trial bar because the class' "previously granted licenses to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited." Finally, the plaintiff asserts that, even if the district court's adoption of the rules involves a "basically legislative-type judgment," our court should not apply the rules that "the fifth amendment's requirements of individualized due process do not apply in the area of rulemaking."

A. Adoption of the Rules was not a Disbarment Proceeding

By arguing that adoption of the trial bar membership rule in effect disbarred him for incompetence, Brown raises the issue of whether the imposition of the trial bar membership requirement was a proper exercise of the district court's rulemaking power or was in improper adjudication of his competence as an attorney. To determine whether an action was rulemaking or adjudication, courts consider: (1) whether the action is generalized in nature, i.e., whether the action applies to specific individuals or to unnamed and unspecified persons; (2) whether the promulgating agency considers general facts or adjudicates a particular set of disputed facts; and (3) whether the action determines policy issues or resolves a specific dispute between particular parties. See United States v. Florida E. Coast R.R. Co., 410 U.S. 224, 244-46, 35 L. Ed. 2d 223, 93 S. Ct. 810 (1973). "Disbarment . . . is a punishment or penalty imposed on the lawyer." Matter of Ruffalo, 390 U.S. 544, 550, 20 L. Ed. 2d 117, 88 S. Ct. 1222 (1968). A court conducting a disbarment proceeding must determine for itself the facts of the attorney's conduct and whether that conduct had been so grievous as to require disbarment. Theard v. United States, 354 U.S. 278, 282, 1 L. Ed. 2d 1342, 77 S. Ct. 1274 (1957). Thus, the ultimate result of a disbarment proceeding in a finding, based upon the conduct and actions of an individual attorney, that the individual attorney is until. Unlike a disbarment proceeding focused upon specific incidents of misconduct by an individual attorney, the district court's trial bar rules were adopted in response to fact finding that was not focused on individual attorneys. The trial bar rules of the Northern District of Illinois are part of a pilot program implementing suggestions to improve advocacy in the federal courts advanced by the Committee to Consider Standards for Admission to Practice in the Federal Courts ("Devitt Committee"). The Devitt Committee, a national committee appointed by Chief Justice Burger in 1976 to study advocacy of representation problems in the federal courts, surveyed 1,500 law related organizations, solicited the comments of the legal community, and held public hearings on, inter alia, causes of any perceived inadequacies of representation. Report and Tentative recommendations of the Committee to Consider Standards of Admission to Practice in the Federal Courts to the Judicial Conference of the United States, 79 F.R.D. 187, 193 (1978). Additionally, the Federal Judicial Center simultaneously conducted a series of research projects designed to gather information about the level of performance of advocates in the federal courts. Id. Based upon the comments received by the Devitt Committee and the results of the Federal Judicial Center studies, the Devitt Committee concluded that, "lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance." Id. at 196-97. The experience requirement was recommended "to insure a substantial probability of adequate trial performances." Id. at 196-98. thus, the trial bar membership requirement was not designed to infallibly identify competent attorneys; rather, the provision was adopted as a method of improving the standard of advocacy i the district courts by requiring the attorneys to present evidence to the court of training in trial advocacy-i.e., the qualifying units. We hold that the finding of a correlation between trial experience and competence as a trial attorney, upon which the trial bar membership rule is based, is generalized fact finding, was not focused upon the competence of an individual attorney, and was legislative in nature. We also hold that the experience requirement is a determination of a policy issue rather than a resolution of a specific dispute between particular parties. Specifically, the trial bar membership requirement was adopted to prevent problems caused by inexperienced trial counsel such as, "'Piper Cub' advocates trying to handle the controls of 'Boeing 747' litigation," and "on-the-job-training" at the expense of the client. Burger, The Specialized Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L. Rev. 227, 231, 233 (1973). "Whatever the legal issues or claims, the indispensable element in the trial of a case is a minimally adequate advocate for each litigant." (id. at 234, emphasis added). The client's interests are ill-served when an untrained attorney faces a seasoned and experienced opponent. "The young doctor just graduated from the finest medical school is not permitted to take scalpel in hand to perform delicate surgery without a skilled and seasoned surgeon at his side." Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175, 177 (1974). Adoption of an experience requirement is a sound, and overdue, recognition that young attorneys, like young physicians, must be trained by experienced practitioners. Brown's argument that the district court's imposition of the trial bar membership requirement, in effect, disbarred him for incompetence mischaracterizes the nature of the district court's action. We hold that, contrary to the plaintiff's assertions of disbarment, the district court's trial bar membership rule, imposes what we believe is a necessary and long needed qualification requirement upon present and future members of

the district court bar who wish to have the opportunity to appear alone before the court in any proceeding and is not a finding that non-members of the trial bar are incompetent. Consequently, Brown's argument that he was entitled to notice and the right to be heard because he was disbarred is groundless.

B. The Power to Impose the Qualification Requirement

The authority to adopt rules relating to admission to practice before the federal courts was delegated by Congress to the federal courts in Sections 35 of the Judiciary ACT of 1789, Act of September 25, 1789, Ch.20, 1 Stat. 73, 92 now codified as 28 U.S.C. § 1654. In addition to § 1654, 28 U.S.C. § 2071 provides in part that "the Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business." FED. R. CIV. P. 83, promulgated by the Supreme Court pursuant to its rule-making authority, specifies that, "[e]ach district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules." The district court found, and we agree, that "[e]very federal court which has construed [28 U.S.C. §§ 1654, 2071 and FED. R. CIV. P. 83] has held that they permit a federal district court to regulate the admission of attorney who practice before it." See, e.g., Matter of Roberts, 682 F.2d 105, 108 (3d Cir. 1982); Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. denied, 423 U.S. 1038, 46 L. Ed. 2d 413, 96 S. Ct. 574 (1975); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968).

In addition to the authority delegated by Congress, federal courts have the inherent power to regulate the conduct of attorneys and to disbar attorneys. Theard, 354 U.S. at 281: Ex Parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L. Ed. 565 (1856); see generally State v. Cannon, 206 Wis. 374, 240 N.W.441 (1932) (reviewing cases from the Middle Ages to the nineteenth century). The courts' authority and ...

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