Working Papers 

ofthe 

Committee on 

Rules of Practice and Procedure 

Special Studies of Federal Rules 

Governing Attorney Conduct 

Leonidas Ralph Mecham, Director 

Administrative Office of the United States Courts 

September 1997 
Working Papers 

ofthe 

Committee on 

Rules of Practice and Procedure 

Special Studies of Federal Rules 

Governing Attorney Conduct 

Daniel R. Coquillette, Reporter 

(Studies I, IIA, III, IV, V, VI) 

Marie Leary, Federal Judicial Center 

(Studies IIB, VII) 

Leonidas Ralph Mecham, Director 

Administrative Office of the United States Courts 

September 1997 
Working Papers 

Special Studies of Federal Rules 

Governing Attorney Conduct 

SUMMARY OF CONTENTS 

Page 

• Preface, The Honorable Alicemarie H. Stotler, Chair ................................... ix 

• Introduction, Professor Daniel R. Coqui llette, Reporter ................................. xi 

I. Report on Local Rules Regulating Attorney Conduct in the Federal Courts - July 5, I 995 ..... I 

• Introduction, The Problem, The Current Situation in Each District and Circuit, 

Districts with No Local Rules, Examples of Recent Problems in the Districts, 

Some Recent Reactions, Conclusion: Practical Choices, and Appendices 

II. Special Study Conference of Federal Rules Governing Attorney Conduct 

Los Angeles, California - January 9- I 0, I 996 ....................................... 97 

• Study of Recent Federal Cases Involving Rules of Attorney Conduct, and 

Eligibility Requirements for, and Restrictions on, Practice before the Federal 

District Courts 

III. Supplement to Study of Federal Rules Governing Attorney Conduct 

Washington, D.C. - June 18-19, 1996 ............................................. 187 

• Introduction, Methodology, Findings, Conclusions, and Appendices 

IV. Interim Report on Study of Federal Rules Governing Attorney Conduct 

Standing Committee Report - December 4, I 996 .................................... 223 

• Introduction, Purpose, Conclusions, and Appendices 

V. Study of Federal Cases (I 990-I 997) Involving Federal Rules of Appellate Procedure 46 

Standing Committee Report - June I 9-20, I 997 ..................................... 235 

• Introduction, Discussion, Conclusions, Appendices, and Minutes 

VI. Study of Recent Bankruptcy Cases (1990-1996) Involving Rules of Attorney Conduct 

Standing Committee Report - June I 9-20, I 997 ..................................... 293 

• Introduction, Methodology, Findings, Conclusions, and Appendices 

Vil. Standards of Attorney Conduct and Disciplinary Procedures: A Study of the Federal 

District Courts, Report to Committee on Rules of Practice and Procedure - June 1997 ....... 335 

• Summary, Introduction, Local Rules Governing Attorney Conduct in Federal 

District Courts, Attorney Discipline in Federal District Courts, and Appendices 

Table of Contents 

Page 

Preface, The Honorable Alicemarie H. Stotler, Chair ................................ 1x 

Introduction, Professor Daniel R. Coquillette, Reporter .............................. xi 

I. Local Rules Regulating Attorney Conduct in the Federal Courts (Daniel R. Coquillette), 

July 5, 1995 .............................................................. I 

A. Introduction .......................................................... 3 

B. The Problem .......................................................... 3 

C. The Current Situation in Each District and Circuit ............................ 5 

I. The Charts ........................................................ 6 

2. Recent Local Rule Revisions .......................................... 9 

3. Some Circuit Courts Issues ........................................... 10 

D. Districts with No Local Rules ............................................ 10 

E. Examples of Recent Problems in the District ................................ 13 

I. Ambiguously Drafted Rules .......................................... I 4 

2. Federal Cases Incorporating Standards of Conduct Not Included in Any Rule ... 17 

3. Due Process and Vagueness Problems ................................... 21 

4. Multiforum Problems ................................................ 25 

5. Promulgation by Federal Agencies of their Own Attorney Conduct Rules ....... 27 

F. Some Recent Reactions: Resolution XII (1995) of the Conference of Chief Justices; 

The Resolution of the House of Delegates of the American Bar Association (1995); 

1995 Congressional Initiatives, Including Senate Bill No. 3 (1995) ............... 35 

G. Conclusion: Practical Choices ............................................ 40 

H. Appendices ........................................................... 45 

I. Appendix I. Rules of Professional Conduct in the 94 Federal Courts as of May 

~,1995 .............................................. 45 

2. Appendix II. Rules of Professional Conduct in the 94 Federal District Courts: 

Including All Local Rules and Standing Orders, May 24, I 995 ... 51 

3. Appendix III. Rules of Professional Conduct in the I 2 Circuit Courts, May 24, 

1995 ................................................. 73 

111 
4. Appendix IV. 9 Geo. J. Legal Ethics 89, Georgetown Journal of Legal Ethics, 

Fall, 1995, Symposium, Multiforum Federal Practice: Ethics and 

Erie, Linda S. Mullenix [not reprinted here] .................. 79 

5. Appendix V. Federal Rules of Disciplinary Enforcement, Committee on Court 

Administration and Case Management, 1978 ................. 81 

6. Appendix VI. Draft Rule proposed by the Illinois State Bar Association, 

February 14, 1995 ...................................... 93 

II. Special Study Conference of Federal Rules Governing Attorney Conduct, January 

9-1~1~6 ........................................................... 97 

A. Study of Recent Federal Cases Involving Rules of Attorney Conduct (Daniel R. 

Coquillette), December 1, 1995 ........................................ 99 

1. Appendix I. 

2. Appendix II. 

3. Appendix III. 

4. Appendix IV. 

Break Down of Recent Federal Cases (1990-1995) by ABA 

Model Rule ......................................... 107 

Break Down of Recent Federal Cases (1990-1995) by ABA 

Code "DR Number" .................................. 113 

Break Down of Recent Federal Cases (1990-1995) Involving 

Rule 11 and Other "Attorney Issues" Not Counted in Survey .. 117 

64 Geo. Wash. L. Rev. 460, George Washington Law Review, 

Govern Lawyers in Federal Court and How Should the Rules 

Be Created?, Bruce A. Green [not reprinted here] .......... 121 

B. Eligibility Requirements for, and Restrictions on, Practice before the Federal 

District Courts (Marie Leary, Federal Judicial Center), November 7, 1995 ...... 123 

1. Appendix I. Practice Table Chart .................................. 133 

C. Attendees List for the Special Study Conference, January, 1996 .............. 183 

III. Supplement to Study of Federal Rules Governing Attorney Conduct (Daniel R. 

Coquillette ), June 18, 1996 .............................................. 187 

A. Introduction ....................................................... 189 

B. Methodology ...................................................... 189 

C. Findings .......................................................... 190 

D. Conclusions: A Potential "Fifth Option?" ................................ 191 

E. Appendices ........................................................ 193 

iv 
1. Appendix I. 

2. Appendix II. 

3. Appendix III. 

4. Appendix IV. 

5. Appendix V. 

Break Down of Recent Federal Cases (July 1, 1995 - March 

23, 1996) by ABA Model Rule ......................... 193 

Break Down of Recent Federal Cases (July I, 1995 - March 

23, 1996) citing ABA Code "DR Number" ................ 197 

Break Down of Recent Federal Cases (1990-1996) cumulated 

by ABA Model Rule Through March 23, 1996 ............. 201 

Break Down of Recent Federal Cases ( 1990-1996) citing 

ABA Code "DR Number" Through March 23, 1996 ..... · .... 207 

65 Fordham L. Rev. 355, Fordham Law Review, October, 

1996, Who Should Regulate the Ethics of Federal 

Prosecutors?, Rory K. Little [not reprinted here] ........... 211 

6. Appendix VI. 65 Fordham L. Rev. 429, Fordham Law Review, October, 

1996, Who Can Best Regulate the Ethics of Federal 

Prosecutors- Or Who Should Regulate the Regulators?, 

Fred C. Zacharias [not reprinted here] .................... 213 

F. Attendees List for the Special Study Conference, June, 1996 ................. 215 

IV. Interim Report on Study of Rules Governing Attorney Conduct (Daniel R. 

Coquillette), December 4, 1996. . . . . . . . . . . . . . . . . .......................... 223 

A. Introduction ....................................................... 225 

B. Purpose of the Reports ............................................... 226 

C. Conclusion ........................................................ 228 

1. Appendix I. Proposed Model Local Rule ( 4): Standards for Professional 

Conduct ........................................... 230 

2. Appendix II. Minutes, Standing Committee Report, June 19-21, 1996, 

pages 17-18 ......................................... 231 

V. Study of Recent Federal Cases (1990-1997) Involving Federal Rule of Appellate 

Procedure 46 (Daniel R. Coquillette), May 10, 1997 .......................... 235 

A. Introduction ....................................................... 23 7 

B. Discussion ........................................................ 238 

1. The In re Snyder Standard ......................................... 239 

2. Local Rules Interpreting Rule 46 .................................... 239 

3. Courts of Appeals Cases on Rule 46 ................................. 241 

C. Conclusion ........................................................ 243 

V 
1. "Option One:" A Model Local Rule .................................. 244 

2. "Option Two." Uniform Federal Rules of Attorney Conduct .............. 246 

D. Appendices ........................................................ 249 

1. Appendix I. Break Down of Recent Federal Appellate Cases Citing Federal 

Rule of Appellate Procedure 46 (1990-1997) .............. 249 

2. Appendix II. Proposed Model Local Rule Governing Attorney Conduct for 

Federal Courts of Appeals ............................. 253 

3. Appendix III. Example Revised Federal Rule of Appellate Procedure 46 .... 257 

4. Appendix IV. In re Snyder, 472 U.S. 634 (I 985) ....................... 263 

5. Appendix V. 60 Alb. L. Rev. 303, Albany Law Review, 1996, Enforcing 

Professional Norms For Federal Litigation Conduct: 

Achieving Reciprocal Cooperation, Jeffrey A. Parness [not 

reprinted here] ...................................... 273 

6. Appendix VI. Examples of Uniform Federal Rules of Attorney Conduct and 

Revised Federal Rule of Civil Procedure 83 ................ 275 

7. Appendix VII. From The Report On Local Rules Regulating Attorney 

Conduct in the Federal Courts, July 5, 1995: "Rules of 

Professional Conduct in the Federal Circuit Courts" ......... 287 

VI. Study of Recent Bankruptcy Cases (1990-1996) Involving Rules of Attorney 

Conduct (Daniel R. Coquillette ), May 11, 1997 .............................. 293 

A. Introduction ........................................................ 295 

B. Methodology and Findings ........................................... 296 

1. Study I. Reported Banlauptcy Cases Involving Rules of Attorney Conduct 

(1990-1996) ........................................... 296 

2. Study II. Sources of Local Rules Governing Attorney Conduct in 

Bankruptcy Courts ...................................... 299 

3. Study III. Application of Rules of Attorney Conduct in Conjunction with the 

Bankruptcy Code ....................................... 301 

C. Conclusions ........................................................ 306 

D. Appendices ........................................................ 309 

1. Appendix I. Standard Form for Located Cases (1990-1996) ............. 309 

2. Appendix II. Break Down of Recent Bankruptcy Cases (1990-1996) by 

ABA Model Rules of Professional Conduct ............... 313 

3. Appendix UL Sources of Federal District Court and Bankruptcy Court Local 

Rules of Professional Conduct .......................... 319 

VI 
4. Appendix IV. Break Down of Recent Federal Cases (1990-1996) by ABA 

Model Rules of Professional Conduct .................... 327 

5. Appendix V. 97 Com. L. J. 149, Commercial Law Journal, Summer, 1992, 

Whom Do You Trust? Everything You Never Wanted to Know 

About Ethics, Conflicts and Privileges in the Bankruptcy 

Process, Peter E. Meltzer [not reprinted here] .............. 331 

6. Appendix VI. 98 Com. L. J. 127, Commercial Law Journal, Summer, 1993, 

Deciphering Conflicts of Interest in Bankruptcy 

Representation, William I. Kohn [nofreprinted here] ........ 333 

VII. Standards of Attorney Conduct and Disciplinary Procedures: A Study of the Federal 

District Courts (Marie Leary), June, 1997 ................................... 335 

A. Summary .......................................................... 337 

1. Local rules governing attorney conduct in the federal district courts ........ 337 

2. Attorney discipline in the federal district courts ........................ 338 

B. Introduction ........................................................ 340 

C. Local Rules Governing Attorney Conduct in the Federal District Courts ........ 340 

1. Analysis of Current Local Rules .................................... 340 

2. Problems Experienced by Federal Districts Due to the Overall Approach of 

Their Attorney Conduct Rule ....................................... 347 

3. Problems Experienced by Districts Due to Specific Ethical Standards: 

Identification and Frequency of Problems ............................. 349 

4. National Uniformity .............................................. 351 

5. Selective Uniformity ............................................. 351 

D. Attorney Discipline in the Federal District Courts ......................... 352 

1. Current Local Rules Regulating Attorney Discipline .................... 352 

2. Procedures Repmiedly Used by the Federal District Courts to Address 

Complaints of Attorney Misconduct ................................. 354 

3. Frequency of Attorney Misconduct Complaints in the Federal District 

Courts ......................................................... 362 

E. Appendices ........................................................ 363 

1. Table A-1. 

2. Table A-2 . 

3. Table A-3. 

Rules Governing Attorney Conduct in the Federal District 

Courts ............................................ 365 

Components of Model Rule 4(B) in State-Based Local Rules . 369 

Components of Model Rule 4(B) in Model Rule-Based Local 

Rules ............................................. 373 

Vll 
4. Table A-4. 

5. Table A-5. 

6. Table A-6. 

7. Table A-7. 

8. Table A-8. 

9. Table A-9. 

10. Table A-10. 

I I. Table A-11. 

12. Table A-12. 

13. Table A-13. 

14. Table A-14. 

15. Table A-15. 

16. Table A-16. 

17. Table A-17. 

18. Table A-18. 

Components of Model Rule 4( B) in Combination Model Rule 

And State-Based Local Rules .......................... 375 

Reported Changes in Source of Attorney Conduct Standards .. 377 

Problems Caused by Ambiguous Language ............... 379 

Problems Resulting From Use of External Standards Not 

Explicit in the Districts' Rules .......................... 381 

Complaints of Lack of Due Process and Vagueness ......... 383 

Multiforum Problems ................................. 385 

Problems with Federal Agencies ........................ 387 

Problems Due to Specific Ethical Standards ............... 389 

National Uniformity of Standards ....................... 391 

Selective Uniformity of Standards ....................... 393 

Attorney Discipline Rules ............................. 395 

Group I Districts: Approaches on Complaints of Attorney 

Misconduct ......................................... 397 

Group 2 Districts: Approaches on Complaints of Attorney 

Misconduct ......................................... 403 

Group 3 Districts: Approaches on Complaints of Attorney 

Misconduct ......................................... 405 

Frequency of Complaints in Calendar Year 1996 ........... 409 

Vlll 
PREF ACE by, Alicemarie H. Stotler 

The materials pertaining to rules governing attorney conduct collected in this volume 

represent years of careful study and analysis on the part of Daniel R. Coquillette, Reporter to the 

Committee on Rules of Practice and Procedure, the Committee members, the staff of the 

Administrative Office of the United States Courts, the many participants at two major 

conferences on the subject, and the Federal Judicial Center. They are a direct outgrowth of the 

Local Rules Project, established in 1987 following authorization from the United States Judicial 

Conference for the Committee to study local rules in the federal courts, and the 1988 

Congressional amendments to the Rules Enabling Act (28 U.S.C. 2071, et seq.) which were 

designed, in part, to regulate aspects of the local rulemaking process. It was clear at the outset of 

the Local Rules Project that the topic of Local Rules Governing Attorney Conduct was unique 

and special study was necessary before any action could be recommended. 

Thus, at the direction of the Standing Committee, the Reporter instituted a series of 

intensive studies covering every aspect of the rules governing attorney conduct in the federal 

courts, including district, appellate, and banlauptcy courts. Two special conferences on the 

subject were convened in January and June of 1996. These conferences brought together a 

variety of distinguished experts from around the country to share their ideas and opinions on this 

complex and sometimes controversial subject. Participants included representatives from such 

diverse groups as the Department of Justice; the Federal Judicial Center; the American Bar 

Association; the American Law Institute; the Federal Bar Association; the Conference of Chief 

Justices; the American College of Trial Lawyers; the Association of Trial Lawyers of America; 

the National Association of Criminal Defense Lawyers; the Judicial Conference Committees on 

Court Administration and Case Management, Criminal Law, and Federal-State Jurisdiction; as 

well as ethics scholars, and members of the bar and the state and federal judiciary. A complete 

list of participants is included in the Introduction to Study III. 

This volume contains the results of these unique efforts. The Committee decided to 

publish the collection so that the information gathered would be available, in one place, for those 

interested in the subject and those who will be involved in crafting solutions. It is our hope that 

these materials will foster wise and conscientious decisions and the continued cooperation of 

everyone involved in this far-reaching project. 

The Committee owes a great debt of gratitude, first to Professor Coquillette, our esteemed 

Reporter, for his painstaking research and tireless dedication to this arduous task. In the 

Administrative Office, recognition must be given for the exceptional work done by Peter G. 

McCabe, John K. Rabiej, Mark D. Shapiro, and Patricia S. Channon. Also, two excellent 

studies, without which this volume would not be complete, were contributed by Marie Cordisco 

Leary of the Federal Judicial Center. 

The study project benefitted greatly from the generous input of other Judicial Conference 

committees, particularly the Committee on Court Administration and Case Management and its 

chair, the Honorable Ann C. Williams; the Department of Justice, especially Ms. Jamie S. 

IX 
Gorelick; Jeanne P. Gray and Margaret C. Love of the ABA; Geoffrey C. Hazard, Jr. of the ALI; 

and the Honorable Michael D. Zimmerman of the Conference of Chief Justices. 

Finally, we wish to thank the chairs, members, and reporters of the five Advisory Rules 

Committees for their advice and contributions. The Honorable James K. Logan and Professor 

Carol Ann Mooney, chair and reporter, respectively, of the Advisory Committee on Appellate 

Rules, deserve special mention in this regard. From the Advisory Committee on Bankruptcy 

Rules, the Honorable Adrian G. Duplantier, chair; Professor Alan N. Resnick, reporter; and Mr. 

Gerald K. Smith, chair of the Subcommittee on Ethics, provided critical assistance with respect 

to the special issues pertaining to rules of attorney conduct in bankruptcy practice. 

I am pleased to present this worthy example of teamwork and cooperation between the 

bench and bar which will result in long term progress and, in the end, rules governing attorney 

conduct in the federal courts that are clear, fair, and easy to follow. 

Honorable Alicemarie H. Stotler, Chair, 

Committee on Rules of Practice and Procedure, 

Judicial Conference of the United States 

X 

------------------------------------l!l··m:~W$(s&w b 
INTRODUCTION by, Daniel R. Coquillette 

INTRODUCTION CONTENTS 

I. The Research Team 

II. The Mandate (28 U.S.C. § 2073 (6).) 

III. The Structure of the Studies 

A. The Rules (Studies I, II B.) 

B. Recent Federal Case Law (Studies II A, ill.) 

C. Some Proposed Models for Reform (Study IV.) 

D. Special Concerns Relating to Courts of Appeals and 

Bankruptcy Courts (Studies V, VI.) 

E. An Empirical Study of Federal District Court 

Practice (Study VII.) 

IV. The Next Steps 

V. Conclusion 

XI 

I. THE RESEARCH TEAM 

These seven studies were undertaken at the direction of the Committee on 

Rules of Practice and Procedure of the Judicial Conference of the United States (the 

Standing Committee) under its Congressional mandate to "maintain consistency and 

otherwise promote the interest of justice" with the Federal rules system. 28 U.S.C. 

§ 2073 (6). The studies advance the Standing Committee's continuing duty to review 

local rules with a goal of national uniformity. (1996 Self-Study of Federal Judicial 

Rulemaking, 168 F.R.D. 679.) All seven studies were completed between July 1995 

and June 1997. In addition to the empirical and legal research, two special invitational 

conferences were held under the auspices of the Standing Committee and with the 

generous support of the Administrative Office of the United States Courts. The first 

conference was held in Los Angeles, California, on January 9-10, 1996, and the second 

in Washington, D.C. on June 18-19, 1996. These conferences brought together experts 

in attorney conduct from the bench, the bar, other Committees of the Judicial 

Conference, the Department of Justice, and the Congress. More than sixty individuals 

were involved. Their names are set out in Studies II and III, together with the 

ambitious conference agendas. Without these public spirited and hard working 

volunteers, this project could not succeed. 

This project has also been greatly assisted by the Federal Judicial Center. In 

particular, Study II (B), below, "Eligibility Requirements for, and Restrictions on, 

Practice Before the Federal District Courts" (November 7, 1995), and Study VII, 

below, "Standards of Attorney Conduct and Disciplinary Procedures: A Study of the 

Federal District Courts" Gune 1997) were completed by Marie Leary of the Federal 

Judicial Center, at the request of the Standing Committee. The high quality of these 

studies speaks for itself. It has been an honor to be associated with Ms. Leary and these 

studies. 

My work as Reporter would be impossible without the dedicated civil servants 

of the Administrative Office, beginning with the Director himself, Leonidas Ralph 

Mecham, and including Peter G. McCabe, Secretary to the Standing Committee, and 

all the extraordinarily helpful staff of the Rules Support Office, with particular thanks 

due to John K. Rabiej, Chief, Mark D. Shapiro, Judith W. Krivit, Anne Rustin, 

Catherine Campbell, and Patricia S. Channon of the Bankruptcy Judges Division. I 

am also deeply indebted to my learned colleague, Mary P. Squiers, and my able 

administrative assistant, Brendan Farmer. 

I have had brilliant and deeply devoted research assistants .. Particular thanks is 

due to Mr. Thomas Burton; James J.G. Dimas; and Thomas J. Murphy, all of Boston 

College Law School; and Ms. Rebecca Lampert, of Harvard Law School. Their 

intelligence and hard work are evident on every page. 

Finally, all major Judicial Conference projects reflect the leadership of the 

Chair of the Standing Committee and its distinguished members. With a Committee 

Xlll 
such as this, under the inspired leadership of the Honorable Alicemarie H. Stotler, 

work becomes a pleasure. Judge Stotler is a leader by example. Her wise judgment 

and ceaseless dedication to the public good has been an inspiration to us all. It has been 

a true privilege to serve such a Committee with such a leader. 

II. THE MANDATE (28 U.S.C. § 2073 (b).) 

Beginning in 1986, the Congress, through its Judiciary Committees, expressed 

concern about the proliferation of local rules in federal courts. There were over 5,000 

of these rules, and the number was growing. Some of these rules were, at best, 

confusing to practitioners and, at worst, were in conflict with federal statutes or 

uniform federal rules enacted pursuant to the Rules Enabling Act, 28 U.S.C. § 2074. 

This Congressional concern was explicitly recognized by the 1988 Judicial 

Improvements and Access to Justice Act, 102 Stat. 4642 (1988), and by the 

establishment of the Local Rules Project in 1988, under the supervision of the Standing 

Committee. See the excellent account in Peter G. McCabe, "Renewal of the Federal 

Rulemaking Process," 44 Am. U. L. Rev. 1655, 1686-1687 (1995). See also Coquillette, 

Squiers, Subrin, "The Role of Local Rules," A.B.A.J 62, 62-65 Qanuary 1989). 

The Standing Committee, unlike other Judicial Conference Rules Committees, 

has a direct Congressional mandate. See 28 U.S.C. § 2073 (b). The Committee's duties 

include a constant review of federal judicial rules "to maintain consistency and 

otherwise promote the interest of justice." 28 U.S.C. § 2073 (b). Rules are a special 

responsibility of the Standing Committee because they do not fall into the direct ambit 

of any Advisory Committee. 

No area of local rulemaking has been more fragmented than local rules 

governing attorney conduct. This difficult subject was first raised at the outset of the 

Local Rules Project in 1988, and was then discussed extensively by the Standing 

Committee and invited experts at a Special Conference on Local Rules, convened by 

the Committee at Boston College on November 14, 1988. Many of the goals of the 

Local Rules Project, including uniform numbering, were relatively uncontroversial, 

but review of local rules governing attorney conduct proved to be highly contentious. 

Rather than jeopardize the early progress of the Local Rules Project, it was decided to 

defer this divisive issue to a later date. 

By June 1994, the Local Rules Project had completed major studies of all other 

local rules, and had implemented an effective district-by-district project to reduce 

repetitious and inconsistent local rules. Only attorney conduct rules remained. The 

Standing Committee thus resolved to take up, once again, the problem of local rules 

governing attorney conduct, and to fulfill its statutory mandate from Congress to 

promote consistency and justice in this difficult area. As Reporter, I was directed to 

undertake a study of all local rules governing attorney conduct in the federal district 

XIV 
courts and the courts of appeals. The resulting research, Study I, was presented to the 

Committee on July 5, 1995, thus commencing this series. 

III. THE STRUCTURE OF THE STUDIES 

A. The Rules 

Study I (July 5, 1995); Study II, B. (January 9, 1996) 

Between July 1995, and June 1997, seven studies were completed, and all are 

included in this volume. The first two studies, Study I (July 5, 1995) and Study II, B 

(January 9, 1996), just focused on the local rules then in effect in the federal district 

courts and the courts of appeals. This may seem simplistic, but a look at Charts I, II, 

and III accompanying Study I (July 5, 1995) and the complex charts accompanying 

Study II (B) (January 9, 1996) will show an incredible balkanization among federal 

court local rules in this area. Indeed, the most recently completed study, Study VII 

(June 1997), shows that the earlier rule charts have already become outdated, and that 

the system has become even more confused. See Study VII, Table A-1, infra. Further, 

a number of federal districts have developed a "common law" to interpret and apply 

their rules, and a substantial group have no local rules governing attorney conduct at 

all, but rely solely on case law. All of these variants are analyzed in Study I and Study 

II (B). Study I concentrated on local rules governing attorney conduct, and Study II 

(B), ably done by Marie Leary, focused on local rules governing attorney admission 

and restriction on attorney practice. 

In addition, Study VI (May 11, 1997) sets out the sources of all Bankruptcy 

Court local rules governing attorney conduct. It also includes an analysis of the 

relevant provisions for the Bankruptcy Code. 11 U.S.C. § 327. See Study VI, Chart II, 

infra. 

Study I also contains an analysis of particular problem areas, illustrated by both 

case law and recent scholarly literature. There are specific examples of controversies 

caused by ambiguously drafted rules, absence of any rules, rule vagueness, lack of due 

notice, multi-forum complexity, and promulgation by federal agencies of their own 

rules governing attorney conduct. In addition, there is a discussion of some recent 

reform initiatives, including Resolution XII (1995) of the Conference of Chief Justices; 

the 1995 Resolution of the House of Delegates of the American Bar Association; the 

1995 Congressional initiatives, including Senate Bill No. 3 (1995); and the draft rule 

prepared by the Illinois State Bar Association (February 14, 1995). There is also a 

discussion of prior efforts to adopt uniform rules, including the Federal Rules of 

Disciplinary Enforcement. These were promulgated in 1978 by the Committee on 

Court Administration and Case Management. 

xv 
B. Recent Federal Case Law 

Study II, A (fanuary 9, 1996); Study III (fune 18, 1996) 

The Standing Committee was duly impressed by the baffling complexity of the 

rule systems described in Studies I and II, B, but asked the Reporter a sensible question: 

"Does this complexity actually cause problems in practice?" The Chair, the Honorable 

Alicemarie Stotler, had a related question: "If these balkanized attorney conduct rules 

do cause problems in federal courts, are the problems widespread, or do just a few rules 

or topics cause most of the federal problems?" The Deputy Attorney General, the 

Honorable Jamie S. Gorelick, also inquired as to "how many problems are caused by 

local rules restricting attorney conduct as to persons represented by another attorney?" 

See ABA Model Rules of Professional Conduct, Rule 4.2. 

One obvious way to approach these questions was to review all recently 

reported federal cases. A major search, aided by a computer program, was made of all 

federal cases in the last five years (1990-1995). All cases citing rules regulating attorney 

conduct were examined, together with all cases using key words and phrases associated 

with attorney conduct. A large number of cases, 851, were identified, of which 443 

directly involved the issues under scrutiny. These cases were then broken out into 

categories, based roughly on the ABA Model Rules. Cases citing the old ABA Code were 

"translated" into the most appropriate ABA Model Rule category. See Study II, A, 

Charts I and II, infra. A separate chart was made for cases involving F.R. Civ. P.R. 11 

and other uniform or statutory rules governing conduct. See Study II, A, Chart III, 

infra. 

This process was very labor intensive. Extraordinary work was done by my 

research assistants, James J.G. Dimas and Thomas J. Murphy. The results were 

striking. A large percentage of all federal cases involving attorney conduct fell into just 

a few categories. In particular, three ABA Model Rule categories - conflict of interest, 

communication with represented parties, and lawyer as witness issues - constituted 

276 of the 443 cases, or over 62%. Most other categories had three or fewer cases. 

Seventeen ABA Model Rule categories had no federal cases at all in five years! 

This survey was then repeated for the most recent federal cases, cases decided 

between July 1, 1995 and March 23, 1996. This resulted in Study III, "Supplement to 

Study of Recent Federal Cases (1990-1995)" (May 14, 1996). Over 70% of the most 

recent cases fell into just four ABA Model Rule categories - conflict of interest, 

represented parties, lawyer as witness and fees. Thirty ABA Model Rule categories 

never appeared at all. See Study III (May 14, 1996), Charts I, II, III, and IV. 

One important result of these surveys is a complete set of files describing 520 

cases decided between January 1, 1990, and March 23, 1996. These include abstracts of 

all reported federal cases directly involving issues of attorney conduct. This data base, 

standardized in the form provided as Illustration 1 to Study III, will continue to be 

XVI 
extremely valuable. Once again, much credit is due to my hardworking research 

assistants, James J.G. Dimas and Thomas J. Murphy. 

C. Some Proposed Models for Reform 

(Study IV, December 4, 1996) 

The completion of Studies II and III, infra, coincided with the two special 

invitational conferences of experts, the first in Los Angeles on January 9-10, 1996, and 

the second in Washington, D.C. on June 18-19, 1996. The invited experts represented 

all constituencies of the bench and bar, and included delegates from the Department of 

Justice, the ABA, ATLA, the ALI, the American College of Trial Lawyers, the 

Conference of Chief Justices, Congress, and other Judicial Conference Committees, 

such as the Committee on Court Administration and Case Management. 

Originally these experts considered four options: 

1. A "National Standard" for Federal Courts, i.e., A Complete Code 

of Conduct Adopted by National Federal Rule; 

2. A "State Standard" for Federal Courts, i.e., A National Uniform 

Federal Rule Adopting the State Standards of the Relevant State; 

3. A "Model Local Rule," i.e., A Voluntary Local Model Rule 

similar to the "Federal Rules of Disciplinary Enforcement, 

Model Rule 4," (as promulgated by the Committee on Court 

Administration and Case Management in 1978 and adopted, in 

whole or part, by 15 of the 94 districts); and 

4. Status Quo, i.e., "Do Nothing" 

See Study I (fuly 5, 1995), Section G, "Practical Choices." 

In light of Studies II and III, infra, a fifth option was added: i.e., adopting 

uniform national federal rules that only cover those "core" areas in which most 

reported federal controversies occur, leaving all other matters to state standards. Such 

a "core" would also include a national conflict of law rule. See ABA Model Rule 8.5. If 

the "core" rules included just these four categories: 1.) "Conflict of Interest," 

2.) "Represented Parties," 3.) "Lawyer as Witness," and 4.) "Fees," they would cover 

72% of all reported federal cases since 1990. See Study II, Section III, infra. If "Choice 

of Law" and other common litigation categories are added, 86.3% of all reported 

federal cases since 1990 would be covered. Providing that the remaining 13 .7% be 

covered by state standards would seem a small concession, particularly since many of 

these cases are "Unauthorized Practice" and hard-core "Misconduct" cases, traditionally 

delegated to state enforcement agencies. 

Both conferences agreed that Option 1 (a complete "national federal code") and 

Option 4 ("do nothing") were undesirable. Expert opinion then divided between 

Option 2 ("state standard"), Option 3 ("model local rule") and Option 5 ("core national 

rules, with state standard otherwise"). A full description of the conferences and the 

views there expressed is contained in the Minutes of the Committee on Rules of 

XV!l 
Practice and Procedure, June 19-20, 1996, at pages 31-33. (These Minutes are also 

included with Study IV, Interim Report on Study of Rules Governing Attorney 

Conduct, December 4, 1996.) It was also agreed that three further reports were 

needed: 1.) an empirical study of the actual experience in the federal district courts, 

including unreported cases; 2.) a report on attorney conduct issues in the bankruptcy 

system, with particular attention to the impact of Section 327 of the Bankruptcy Code, 

11 U.S.C. § 372; and 3.) a report on attorney conduct issues in the courts of appeals, 

with particular attention to Fed. R. App. P. 46. The Federal Judicial Center 

generously volunteered to assist with the first report, due to their resources and 

expertise in doing empirical work. See Study IV, December 4, 1996, infra. The result 

was Study VII, infra. 

D. Special Concerns 

(Studies V (May 10, 1997); VI (May 10, 1997).) 

Following these recommendations, the Standing Committee requested me to do 

special studies on Courts of Appeals and Bankruptcy Courts. The reasons were 

obvious. Unlike federal district courts, courts of appeals can cover many states, 

making a "state standard" more problematic. Further, courts of appeals already have a 

uniform national rule governing attorney conduct - the vague, but sweeping "conduct 

unbecoming" standard of Fed. R. App. P. 46. Bankruptcy courts must accommodate 

the language of the Bankruptcy Code, particularly 11 U.S.C. § 327. They also have 

conflict of interest problems quite unlike anything encountered elsewhere, with often 

hundreds of parties in a suit and many shifting allegiances. 

Any attempt at improving consistency among local rules governing attorney 

conduct would have important implications for both courts of appeals and bankruptcy 

· courts. Many courts of appeals have local rules of their own to give specificity to Fed. 

R. App. P. 46, and these follow many different models. See Chart III, Study I (Tuly 5, 

1995), infra. If uniform standards were adopted for the districts within the circuit, it 

would be self-defeating to have a substantially different system for the court of appeals 

itself. Likewise, 73% of the 94 bankruptcy courts have explicitly or implicitly adopted 

the local rules of attorney conduct of their respective district courts. See Study VI, 

Part II, B., infra. Changes in the federal district court local rules, either by 

promulgating a model local rule or by substituting a national uniform rule through the 

Rules Enabling Act, would have a direct effect on these bankruptcy courts. Whether 

these would be for the good or bad should be resolved before any changes in the 

district court rules. 

1. Special Concerns Relating to Courts of Appeals 

The appeals court study, Study V, was completed on May 10, 1997. It has three 

parts. The first is an analysis of Fed. R. App. P. 46, the uniform national rule 

governing attorney conduct in courts of appeals. That rule is essentially identical to 

Rule 8 of the Supreme Court Rules, and uses a vague guilty of "conduct unbecoming a 

xviii 
member of the bar" standard. That standard was carefully examined by the Supreme 

Court in In re Snyder, 472 U.S. 634 (1985), which is set out as Appendix 4 to Study V, 

infra. In Snyder, the Supreme Court interpreted the "conduct unbecoming" phrase to 

require "conduct contrary to professional standards that show unfitness to discharge 

the continuing obligations to clients or the courts or conduct inimical to the 

administration of justice." Id. at 645. The Supreme Court further stated that "case law, 

applicable court rules and 'the lore of the profession', as embodied in codes of 

professional conduct" provide guidance in determining the scope of the affirmative 

obligations. Id. at 645. See also Matter of Hendrix, 986 F.2d 195, 201 (7th Cir. 1993) 

(Fed. R. Civ. P. 11 and ABA Model Rules provide guidance as to conduct sanctionable 

under Rule 46); In re Bithony, 486 F.2d 319, 324 (1st Cir. 1973) (complex code of 

behavior embodied in the ABA Code helps define "conduct unbecoming a member of 

the bar"). See Study V, Section II, A., infra, for further discussion. 

Study V then collects all circuit court local rules interpreting Fed. R. App. P. 

46, and analyzes the very considerable differences between them. See Study V, Section 

II, B., infra. Finally, Study V collects every case since 1990 involving Fed. R. App. P. 

46, and/ or any court of appeal local rule governing attorney conduct, and/ or the 

"conduct unbecoming" standard, and/or Supreme Court Rule 8. Again, the hard work 

of James J.G. Dimas and Thomas J. Murphy made this possible. 

The conclusions of Study V are straightforward. There is considerable 

inconsistency between courts of appeals as a matter of theory, due to very different 

local rules interpreting Fed. R. App. P. 46. But there is little problem in practice. 

Indeed, there have been only 37 cases since 1990 in all circuits. See Study V, Section II, 

C., infra. These few cases also fall into very narrow categories, the most common 

being misrepresentation of law or fact to the court, failure to prosecute criminal 

appeals with due diligence, failure to follow court rules (Fed. R. App. P. 46 (c)), and 

filing of frivolous appeals. See Study V, Chart I, infra. 1 I am most grateful to the 

Chair of the Advisory Committee on Appellate Rules, the Honorable James K. Logan, 

and to the Reporter, Professor Carol Ann Mooney, for their wise help in completing 

this study. 

1 Professor Gregory C. Sisk has recently completed a major study of the proliferation of disparate local 

rules among courts of appeals. See Gregory C. Sisk, "The Balkanization of Appellate Justice: The 

Proliferation of Local Rules in the Federal Circuits," 68 Colorado L. Rev. 1 (1997). Professor Sisk has 

written to the Standing Committee that: 

"Ideally, the vague standard of Federal Rule of Appellate Procedure 46 should be deleted and 

replaced by a new standard through the Rules Enabling Act.. However, although FRAP 46 does 

contain a uniform national ethical standard, a model local rules approach could still be applied in 

this context, in the nature of a clarifying or specifying local rule giving meaningful context to the 

'conduct unbecoming a lawyer' standard." 

(Letter, June 26, 1996) 

XIX 
2. Special Concerns Relating to Bankruptcy Courts 

The study of bankruptcy courts, Study VI (May 10, 1997), presents a very 

different picture. In theory, most bankruptcy courts (73%) simply follow the local 

rules of the federal district court of their district. In practice, there are very substantial 

problems. These problems are caused both by the extreme complexity of many 

bankruptcy cases, and by the Bankruptcy Code itself, which has its own provisions 

relating to attorney conduct. See Study VI, Section II (C.), infra. 

Study VI collects all local rules governing attorney conduct in bankruptcy 

courts, drawing on an excellent earlier study by Patricia S. Channon of the 

Administrative Office. See Study VI, Chart II, infra. It also collects all reported cases 

involving such local rules from 1990 through 1996. See Study VI, Chart I, infra. 

Finally, there is an analysis of the influence of the Bankruptcy Code, particularly 11 

U.S.C. § 327, on attorney conduct standards in the bankruptcy courts. Valuable files 

on 93 reported cases have also been prepared, following the form set out as Illustration 

I to Study VI, infra. 

A tentative conclusion of Study VI is that most bankruptcy courts have, in fact, 

developed standards of attorney conduct quite different from federal district court 

practice, whatever the local rules say. Another conclusion is that great care must be 

taken not to impose inappropriate uniform rules on bankruptcy practice. See the 

discussion at Study VI, Section III, infra. Already, the Bankruptcy Advisory 

Committee has established its own subcommittee on attorney conduct, ably chaired by 

Gerald K. Smith and assisted by Patricia S. Channon of the Administrative Office. I 

have also been greatly assisted by the Committee Chair, the Honorable Adrian G. 

Duplantier, and Reporter, Professor Alan N. Resnick. It is clear that there are real 

problems in practice. Additional work is needed. 

E. An Empirical Study of Federal District Court Practice 

(Study VII, June 1997) 

Both the Standing Committee and I were concerned that all prior studies were 

largely restricted to "legal" sources, such as rules and reported cases, without collecting 

information first hand from those "in the trenches," such as court clerks and chief 

judges. A major survey of this type, directed at federal district court practice, was 

certainly required before any changes could be wisely proposed. Fortunately, the 

Federal Judicial Center offered to conduct the study, which involved distributing and 

tabulating extensive questionnaires to each of the 94 federal districts in the spring of 

1997. 

This study, Study VII, infra, "Standards of Attorney Conduct and Disciplinary 

Procedures: A Study of the Federal District Courts," was ably directed by Marie 

xx 
Leary. 2 It became a tour de force. There was exceptional cooperation from the district 

courts, with replies from 79 districts. The result was a body of reliable data never 

before collected. See Study VII, tables A-1 to A-18, infra. 

It is impossible to summarize adequately such a major study here, but three 

basic points can be made. First, Study VII updates the surveys of local rules prepared 

earlier in Study I Guly 5, 1995). Balkanization of these rules has not abated, and is 

gradually increasing. Second, while attorney conduct problems are not an urgent 

concern of the districts, there are persistent problems caused by poorly drafted and 

inconsistent local rules. In Study VII' s words: 

Based upon an average response rate of 75 districts, a total of 40 districts (53%) 

reported having experienced one or more of the following five problems: 

problems created by a_mbiguously drafted rules, federal courts incorporating 

standards of conduct not included in any rule, due process and vagueness 

problems, multiforum problems, and problems resulting from the 

promulgation by federal agencies of their own attorney conduct rules. 

However, when each of the problems are examined individually, a small 

minority of the districts reported their occurrence. Using the average response 

rate of 75 districts, 17% of all districts responding reported the occurrence of 

conflicts or confusion derived from ambiguous language in their local rule; 9% 

reported that attorneys practicing in their district were prevented from relying 

on the explicit language of their local rules because their court used external 

standards to interpret the rules; 8% reported experiencing complaints regarding 

lack of attorney due process caused, in part, by the vagueness of their attorney 

conduct rule; 9% reported experiencing difficulties resulting from attorney 

conduct problems involving multiple venues; and only 9% of respondents 

reported that they had experienced problems due to conflicts between their 

local rules and rules of professional conduct adopted by a federal agency. 

[Study VII, "Summary," infra.] 

Finally, the Study questioned the district courts as to their desire for uniform 

standards. There was a clear split. "Out of 79 districts that responded, 24 (30%) 

indicated that they would be in favor of a national rule; 53 respondents (67%) did not 

support a national rule, and two had no opinion." Study VII, "Summary," infra. 

Study VII is exceptional research which will reward much future study and 

analysis. The Standing Committee is very much indebted to the Federal Judicial 

Center and Marie Leary for this fine work. 

2 Marie Leary also completed the excellent study of local rules governing admission to practice in the 

federal courts, set out as Study II, B., infra, 

XX! 
IV. THE NEXT STEPS 

At the last meeting of the Standing Committee, on June 19-20, 1997, I was 

directed to prepare drafts of uniform national rules governing attorney conduct 

following the "core" approach, or "Option 5." See above at Section III, C., "Some 

Proposed Models for Reform." These drafts are to be ready for the next Standing 

Committee meeting in January 1998. These drafts are not finished yet, but Appendix 

VI of Study V, infra, sets out examples of how such rules might look. The approach 

taken there was to revise Fed. R. Civ. P. 83 to provide for ten Federal Rules of 

Attorney Conduct. These rules would form an appendix to the Federal Rules of Civil 

Procedure and would be formally adopted through the Rules Enabling Act process, 28 

U.S.C. §§ 2073 - 2074. The ten rules would include choice of law and sanctions (Rule 

1), confidentiality (Rule 2), conflict of interest (Rules 3, 4, 5), imputed disqualification 

(Rule 6), candor toward a tribunal (Rule 7), lawyer as witness (Rule 8) truthfulness in 

statements to other (Rule 9) and represented persons (Rule 10). See Study V, Appendix 

VI, infra.3 

These ten rules would cover the topics identified by Studies II, III, and VII, 

infra, as the most important for the district courts. All other matters would be 

governed by the standards of the state in which the district is located. Note also that 

Study V contains a proposed revision of Fed. R. App. P. 46 to adopt the new standards 

in all courts of appeals. See Study V, Appendix III, infra. Whether the Standing 

Committee elects to follow such a core "national rule" route is, of course, a matter of 

complete conjecture.4 

Whatever is decided, it appears that special provisions need to be made for 

bankruptcy courts. This matter will be discussed at the next meeting of the 

Bankruptcy Advisory Committee on September 11-12, 1997. It is possible that the 

Federal Judicial Center will be asked to complete an empirical study of bankruptcy 

practice similar to that done for district courts in Study VII, infra. In any event, Study 

VI suggests caution in automatically applying new uniform rules to bankruptcy 

proceedings. See the reasons discussed at Section III, D., above. 

V. CONCLUSION 

Attorney conduct in the federal courts is governed by a bewildering maze of 

inconsistent and sometimes poorly drafted local rules. These seven studies, and the 

two expert conferences, have examined every aspect of this problem. The Standing 

Committee has taken seriously its statutory mandate under 28 U.S.C. § 2073 (b) "to 

3 I am particularly indebted to my talented former research assistant, Mr. Thomas Burton, for his help in 

drafting these examples. 

'Study V also includes an example of a draft model local rule. See Study V, Appendix II, infra. 

xxii 
maintain consistency and otherwise promote the interest of justice." It has also heeded 

the Congressional concern about the proliferation and balkanization of local rules 

expressed during the adoption of the 1988 Judicial Improvements and Access to Justice 

Act, 102 Stat. 4642 (1988). See Section I, supra. But the Standing Committee has also 

moved with caution. It is carefully examining every option. 

It has been a great pleasure to be part of this process. The teamwork between 

the Standing Committee, the Administrative Office, the Federal Judicial Center and 

the other experts from the bench, bar, Congress, Department of Justice, and other 

Judicial Conference Committees has really been exceptional. Again, the support of the 

Federal Judicial Center, through Marie Leary's fine work, has been excellent. Finally, 

it is a particular joy to work for this Standing Committee under its wise and farsighted 

Chair, the Honorable Alicemarie H. Stotler. 

In the end, this team effort will succeed. The problems will be resolved. 

· Practice will be easier for the average federal lawyer, and the public will have a better 

system of justice. My hope is that these studies will make a contribution to that goal. 

Daniel R. Coquillette, Reporter, 

Committee on Rules of Practice and Procedure, 

Judicial Conference of the United States 

xxiii 
Page I 

Report on Local Rules 

Regulating Attorney Conduct in the Federal Courts 

Daniel R. Coquillette 

July 5, 1995 

I 

! I 

I 

f 

f 

I 

I 

-1- Page 3 

I. INTRODUCTION 

At the Committee's June, 1994 Meeting, I was directed to prepare a study of all 

federal local rules governing attorney conduct. An Interim Report was presented to 

this Committee on January 2, 1995, together with supporting charts. This is a final 

report, setting forth a series of options for long-term Committee action. I would like 

to specially thank my research assistants, Mr. Thomas Burton, Boston College Law 

School, class of '96, and Ms. Rebecca Lampert, Harvard Law School, class of '96, for 

their invaluable help in preparing this report. I am also particularly grateful to 

Linda S. Mullenix, Ward Centennial Professor of Law in the University of Texas, 

and her research assistant, Robert W. Musslewhite, Harvard Law School, class of '96, 

for sharing the research and insights which are set forth in Professor Mullenix's 

forthcoming article, "Multiforum Federal Practice: Ethics and Erie." presented at the 

Georgetown University Conference as "Legal Ethics Into the Twenty-First Century," 

March 17, 1995, and set out, with her kind permission as "Appendix IV", attached. I 

am, as always, deeply indebted to my colleague, Mary P. Squiers, and Peter G. 

McCabe and John K. Rabiej of the Administrative Office. 

II. THE PROBLEM 

This Committee has always had a special responsibility for local rules in the 

federal courts, a role explicitly recognized by Congress in the 1988 Amendments to 

the Rules Enabling Act, 28 U.S.C. § 2073, and in the establishment of the Local Rules 

Project in 1987. This is because local rulemaking does not fall into the direct ambit 

of any Advisory Committee and often effects a wide range of topics. 

No area of local rulemaking has been more fragmented than local rules 

governing attorney conduct. This difficult subject was first raised at the outset of the 

Local Rules Project in 1988, and was then discussed extensively by the Standing 

Committee at a Special Conference on Local Rules, convened by the Committee at 

Boston College on November 14, 1988. Many of the goals of the Local.Rules Project, 

including uniform numbering, were relatively uncontroversial, but·review of local 

rules governing attorney conduct proved to be highly contentious. Rather than 

jeopardize the early progress of the Local Rules Project, it was decided to defer this 

divisive issue to a later date. 

Since that time, the "balkanization" of local rules governing attorney conduct 

appears to have grown worse. The attached charts set out as Appendices I, II, and ill, 

below, show that there are now seven fundamentally different approaches, and 

even within these "groups" there are great variations. The most common 

approach, local rules that incorporate the relevant standards of the state in which 

the district is located, actually divides federal districts because of the many differing 

state rules. See Section III, below. The Department of Justice, other major federal 

agencies, and many national legal organizations, including civil rights groups, 

national corporations, financial networks, large law firms, and groups facing multidistrict litigation have been severely inconvenienced. See Section V, below. 

Further, the rise of legal malpractice actions has led to subsidiary dispute about 

choice of law - often of mind numbing complexity. This situation has led some 
Page4 

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major governmental agencies, including the Department of Justice, to consider 

adopting their own professional standards. The Department of Justice has now 

actually done so with regard to communications with represented parties, 

promulgating new Department regulations that differ significantly from most state 

standards and the standards adopted by local rule in most Districts and Circuits. See 

Section V, E., below. This adds further to the number and variation of the rules. 

At the outset, it is important to distinguish between difficulties that are 

inherent in our federal system, and problems caused by poor draftsmanship or total 

lack of guidance to attorneys. Regulation of attorneys has traditionally been a 

function of the 51 states.l The American Bar Association has long attempted to 

establish national norms: first with the 1908 ABA Canons of Professional 

Responsibility (hereafter the "Canons"); next with the 1969 ABA Model Code of 

Professional Responsibility (hereafter the "Code"); and concluding with the 1983 

ABA Model Rules of Professional Conduct (hereafter the "Model Rules"). These 

efforts have, at best, met limited success. Despite a national system of legal 

education and even a national standardized bar examination in professional ethics 

- the Multi-State Professional Responsibility Examination ("MPRE"), there 

remains wide diversity between the states. Even the majority of states which have 

adopted some form of the ABA Model Rules have often changed key sections, the 

latest example being Massachusetts, the Reporter's home state. See Report of the 

Committee on Model Rules of the Supreme Judicial Court of Massachusetts, 

February 1, 1995, "Major Departures from the ABA Model Rules," pp. 1-3. Any 

federal system of rulemaking that chooses to follow the rules of the state in which a 

District is located will inherit this balkanization. As will be seen, following state 

standards has some clear advantages. See Section VI and VII above. But state 

standards can present substantial problems, particularly in governing multi-forum 

complex litigation and for federal agencies. See Sections V-E, VI and VII, above. 

Unfortunately, some federal local rulemaking has not only picked up the 

inherent fragmentation of the existing state rules, but has added to it by bad 

draftsmanship or by providing ambiguous guidance. As will be seen, court 

decisions in some districts have failed to resolve these ambiguities, leaving 

attorneys with no clear rules in matters of the greatest professional importance. 

1 For a good introduction to the complexity of regulation of attorney conduct by local rules, see Fred C 

Zacharias, "Federalizing Legal Ethics", 73 Texas Law Review 335 (December, 1994) and Linda S. 

Mullenix's ''Multiforum Federal Practice: Ethics and Erie", March, 1995, set out below in Appendix IV. 

For how it looks from the perspective of the state bars, see Matthew F. Boyer's short, but cogent article, 

'The hnpact on Delaware Lawyers of the District Court's Adoption of the Model Rules of Professional 

Conduct" March 31, 1995, currently awaiting publication. (Copy available from the Reporter). See also 

Geoffrey C. Hazard Jr.'s powerful commentary "Uniform Discrepancies" in The National Law Journal, 

March 20, 1995, A 19-A20. Of course, attorney conduct in federal courts is also regulated by certain 

uniform rules, most notably Rule 11 of the Federal Rules of Civil Procedure. See Judith A. McMorrow, 

"Rule 11 and Federalizing Lawyer Ethics", 1991 Brigham Young University Law Review 959 (1991) and 

Carl Tobias, 'The 1993 revision of Federal Rule 11", 70 Indiana Law Review 171 (1994). Recent 

Congressional initiatives could also directly regulate attorney conduct in federal courts, both through 

federal rules and otherwise. See Carl Tobias, "Common Sense and Other Legal Reforms", 48 Vanderbilt 

Law Review 699, 721-737(1995), analyzing the Attorney Accountability Act, H.R. 988, 104th Congress, 

1st Session (Feb. 16, 1995), and other pending bills. 
Page5 

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Some recent cases, discussed at length in Section V-C, infra, have suggested that 

attorney discipline in such situations may violate Due Process guarantees. 

This Report will conclude by offering the Committee four fundamental 

options for long-term reform. One would be to adopt a uniform national set of 

rules governing attorney conduct in federal courts through the Rules Enabling Act, 

probably as an Appendix to the Civil Rules. A second option would be to establish a 

uniform national rule adopting relevant state standards in all Federal Courts. A 

third option would be to attempt the same results through model local rules, 

following the initiative first begun by the Committee on Court Administration and 

Court Management in 1978. 

The fourth option is to do nothing. This Report will show that the "do 

nothing" option can only lead to a continuing deterioration of standards, to the 

disadvantage of all. Section III, infra, will demonstrate that the rate of 

fragmentation of professional standards is unabated. Sections IV and V will 

demonstrate that this is causing substantial litigation in the federal courts, and 

Section VI will demonstrate the concern of Congress and other major national and 

governmental groups. 

Inherently, this is a rules problem, and this Committee, with its 

Congressionally mandated processes and responsibilities, is particularly well-suited 

to deal with it. For this reason, this Report concludes by recommending to the Chair 

a special invitational session, to immediately precede the next Standing Committee 

Meeting on Tuesday, January 9, 1996. Invitees would include the Committee 

members and representative of each of the major effected constituencies, including 

Congressional staffs and the Department of Justice. The purpose would be to discuss 

the fundamental options set out in Section VII, below, and to develop a long-term 

solution through the Judicial Conference. 

III. THE CURRENT SITUATION IN EACH DISTRICT AND CIRCUIT 

For convenience, this data is set out in 26 pages of charts and tables, attached 

as Appendices "I", "II" and "III". Appendix I (Chart One) is a summary of the 

District Court data in Appendix II (Chart Two), and Appendix III (Chart Three) sets 

out Circuit Court rules. 

Basically, there are seven variant models in the District Courts: 

1. 

2. 

3. 

Districts that adopt, by local rule, state standards based on the ABA 

Model Rules; 

Districts that adopt, by local rule, state standards based on the ABA 

Code; 

California Districts which have adopted, by local rule, the unique 

California Rules of Professional Conduct, either exclusively or in 

connection with ABA models; 
Page 6 

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4. Districts which have adopted ABA models directly; 

5. Districts which have adopted both an ABA model and state standards; 

6. Districts with no local rule at all; and 

7. A District which adopted its "version" of the ABA Model Rules which 

varies substantially both from the ABA model and the state standards. 

See Chart II, page 9; General Order of the Northern District of Illinois, 

March, 1991. 

Again many states have changed the ABA models. Thus the rules in a District 

adopting state standards may differ greatly from rules in Districts based directly on 

the ABA models, even if the state uses a variant of the same ABA model. Here is. a 

breakdown of the contents of the charts, as updated to May 24, 1995. 

1. 

A. THE CHARTS 

Chart One (2 pages) 

"Summary: Rules of Professional Conduct in the Federal District 

Courts" 

Column 1 - Forty eight Districts have adopted local rules that incorporate state 

standards in states that, in tum, have adopted some version of the ABA Model 

Rules of Professional Conduct (1983). Note: The adopted versions of the ABA 

Model Rules in some of these states often vary widely, and the federal local rules 

adopting the state standards also differ widely. Some are poorly drafted. 

Column 2 - Twelve Districts have adopted local rules that incorporate state 

standards in states which have retained some version of the old ABA Code of 

Professional Responsibility (1969), which was replaced by the ABA with the Model 

Rules in 1983. These local rules also vary widely in form, although some were based 

on a "Uniform Local Rule" suggested by the Committee on Court Administration 

and Case Management ("CACM") as Rule 4(B) of the Model "Federal Rules of 

Disciplinary Enforcement" in 1978. See "Appendix V", attached. 

Column 3 - Two Districts, both in California, have adopted by local rules the 

California Rules of Professional Conduct (approved 8/13/92, effective 9/14/92). The 

reason is that, alone among all states, California's state system is different from 

either of the ABA models. Two other California Districts, (E.D. Ca. and S.D. Ca.), 

have adopted local rules referring both to the California Rules and to the ABA Code. 

Column 4 - Ten Districts have local rules that refer directly to an ABA model, 

rather than to the state standards. Of these, four refer to the ABA Code (symbol 

"ac"), three refer to the ABA Model Rules (symbol "ar") and one ("Guam") refers to 
Page 7 

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both the ABA Code and the ABA Model Rules (symbol "ac & ar"). Two Districts, 

Montana and the South District of Georgia, actually refer to the old ABA Canons of 

Professional Ethics (1908) (symbol "canons"). The Canons, a very old model, were 

replaced by the ABA in 1969 with the ABA Model Code. 

Column 5 - Ten Districts have local rules that refer to both an ABA model and to 

the state standards. In states whose variants on the ABA model are substantial, 

these rules generally give the federal district court discretion to look at both the state 

rule and the national model, although the state standard is often preferred. Some of 

these rules are poorly drafted, and must be very confusing to practitioners. Of these 

Districts, six refer to the ABA code (symbol: "ac"), and four refer to the ABA Model 

Rules (symbol: "ar"). Three of these Districts are in ABA Code states (symbol: "c"), 

two are in California's unique system (symbol: "o"), and five are in ABA Model 

Rules States (symbol ("r"). To add to the confusion, two Districts in ABA Model 

Rules states refer to the ABA Code, and one District in an ABA Code state refers to 

the ABA Model Rules! The two California Districts in this category (E.D. Ca. and 

S.D. Ca.), refer to both the ABA Model Code and the California Rules of Professional 

Conduct. 

Column 6 - Eleven Districts have no local rules governing attorney conduct. Of 

these, a number have adopted standing orders. For example, the Western District of 

North Carolina, which has not amended its local rules since 1965, has a standing 

order stating that the standards shall be the "Canons of Ethics of the North Carolina 

Supreme Court, and the ABA." The Western District of Virginia has adopted the 

model "Rules of Attorney Disciplinary Enforcement" as an appendix to the local 

rules. Most of these Districts also have "informal" policies looking to state 

standards. For example, the Southern District of Mississippi does not have a local 

rule proscribing standards of conduct for attorneys practicing in their court. 

According to the Clerk, the standard practice is as follows: "if an attorney needs to 

refer to substantive standards of conduct, upon inquiry to one of the district court 

judges, the matter will be settled by the judge, or the attorney will be referred to the 

substantive rules of attorney conduct that are applicable to the Mississippi State 

Bar." (Letter, Mr. T. Noblin, Clerk, Nov. 18, 1994). Other Districts, without either a 

local rule or a standing order, have indicated that they will not necessarily follow 

state standards. For example, the Western District of Wisconsin has reported that 

they treat "ethical issues on an ad hoc basis with complete discretion in the judge." 

Researching the relevant standards in Districts without local rules has proven 

difficult, and correspondence with clerks is still ongoing. 

Column 7 - One District follows neither state standards nor an ABA model. The 

Northern District of Illinois adopted a Standing Order on October 29, 1991 which 

incorporates a version of the ABA Model Rules that has been very substantially 

changed from the ABA model. It is also quite different from the version adopted by 

the Illinois Supreme Court. 
Page 8 

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2. Chart Two (18 pages) 

"Break Down" of the Individual "Local Rules and Standing Orders for Each of 

the Ninety-four Districts." This exhaustive 18 page chart gives a brief summary of 

the local rule or standing order in each district, with districts arranged by Circuit, 

and then alphabetically within each Circuit. 

3. Chart Three (2 pages) 

"Rules of Professional Conduct in the Federal Circuit Courts". Courts of 

Appeal are not presented with attorney conduct problems in the volume found 

routinely in the state courts or in the Districts. They also have Rule 46 of the 

Federal Rules of Appellate Procedure with its provisions for suspension or 

disbarment for "conduct unbecoming a member of the bar." Nevertheless, four 

Circuits have quite specific local rules that refer to applicable state standards. See the 

District of Columbia, First, Tenth and Eleventh Circuits. For example, the Tenth 

Circuit applies "the Code of Professional Responsibility adopted by the highest court 

of the state(s) in which the attorneys in admitted to practice." Two others have 

Internal Operating Procedure that do the same. For example, Internal Operating 

Procedure Rule 46.6(a)(3) of the Fourth Circuit applies "the Rules of Professional 

Conduct or Responsibility in effect in the state ... in which the attorney maintains his 

or her principal office." One Circuit, the Eleventh, refers to both state standards and 

an ABA model. It applies "the rules of professional conduct adopted by the highest 

court of the state(s) in which the attorney is admitted to practice to the extent that 

these state rules are not inconsistent with the ABA Model Rules ... in which case the 

Model Rules shall govern." 

Two Circuits, the Second and the Sixth, have a local rule that refers to an 

ABA model. The Second Circuit's rule refers to the ABA Code (which is still in 

effect in New York), and the Sixth Circuit refers to both the ABA Model Rules and 

the ABA Canons. 

On the other hand, two Circuits have no relevant local rule. Clerks of these 

circuits, in reply to our inquiries, refer to the Rule 46 standard of "conduct 

unbecoming a member of the court." (Ninth Circuit). This standard also appears in 

(Rule 8, Rules of the Supreme Court of the United States. The Clerk of the Fifth 

Circuit also referred to a "long standing court practice to look to and to follow the 

ethical rules adopted by the highest court in the state of an attorney's domicile, 

while always being mindful of the ABA Model Rules". One Circuit has drafted a 

completely unique document "Standards for Professional Conduct Within the 

Seventh Federal Judicial Circuit." These Seventh Circuit "standards" are neither 

based on an ABA model, nor on a state standard, and are included as "Appendix 3" 

to the Seventh Circuit Local Rules. 

4. Back up Files 

Behind each chart is an extensive research file containing the rules and the 

history of the rules for each District or Circuit, and often correspondence with 
-7-

individual clerks. There are also files on rulemaking proposals by individual 

federal agencies. 

B. RECENT LOCAL RULE REVISIONS 

Page 9 

The above charts were updated following the Interim Report of January 2, 

1995. Indeed, the local rule picture changes monthly, and it is very difficult for loose 

leaf services to remain accurate.2 Even where federal local rules are unchanged, 

state standards incorporated by such rules may change, as is currently the likelihood 

in Massachusetts.3 The problem for practitioners is obvious. 

What is worse, a brief examination of changes between December, 1993, and 

December, 1994, show that there is no uniform trend in these changes. For example, 

the District of Delaware, which formerly followed state standards, has now adopted 

the ABA Model Rules, effective January, 1975. Delaware is an ABA Code state, so 

now state and federal standards are no longer the same.4 See Chart II, pg. 3. At the 

same time, the District of Oklahoma went the opposite way, adopting the state 

standard. (The District of Oklahoma had previously adopted to ABA Model Code by 

local rule, while the state' of Oklahoma had adopted the ABA Model Rules). See 

Chart II, page 18. 

The Southern District of West Virginia has amended its local rule to indicate 

that the models listed in its rule, (the ABA Code, the Model Federal Rules of 

Disciplinary Enforcement and the West Virginia state standards) are only to 

"provide minimal standards" of attorney conduct. District of West Virginia Local 

Rule L.R. Gen. 301.5 See Chart II, pg. 5. Both the District of Vermont and the District 

of Nebraska added language making clear that they adopted the standards of their 

states "as amended from time to time by the state court," not just of the date of the 

local rule. See Chart II, pg. 12; District of Nebraska Local Rule 83.4(d)(2) and Chart II, 

page 2, District of Vermont Local Rule l(d)(4)(b). Both states also indicated that they 

would adopt the state standards "except as otherwise provided by specific rule of this 

court after consideration of comments by representatives of the state bar 

associations." Id. These language changes track Model Rule IV of the Federal Rules 

20ne such service is Federal Local Court Rules (ed. Pike & Fischer, Inc.) Callaghan & Co. and Lawyers 

Cooperative Pub. Co., 1993 and updated, which strives valiantly. There are also computer services. 

3Report of the Supreme Judicial Court's Committee on the Model Rules of Professional Conduct, 

February 1, 1995, 1-5. 

4Tltis could be troublesome in practice. See Mathew F. Boyer, .. The Impact on Delaware Lawyers of the 

District Court's Adoption of the Model Rules of Professional Conduct," supra, note 1. 

5 A typical version of the Model Federal Rules of Disciplinary Enforcement is set out in Appendix V, 

below. The District of West Virginia also changed the numbering of their attorney conduct rule from 

.. Local Rule 1.03(h)" to "L.R.·Gen. 301." So did the District of Vermont, which changed its attorney 

conduct rule number from "Rule 4" to "Rule 1 (d)(4)(b)." Neither change is in the form "approved and 

urged" by the Judicial Conference of the United States. See Report of the Judicial Conference 

(September, 1988) pg. 2. · 
Page 10 

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of Disciplinary Enforcement as first published by the Committee of Court 

Administration and Case Management in 1978. See Appendix V, below. 

Many other recent changes have been incorporated in Charts I, II, and III since 

the versions circulated on January 2, 1995, and these charts are being continually 

updated. This is a serious chore, and probably beyond the means or energy of most 

practitioners and law firms. 

C. SOME CIRCUIT COURT ISSUES 

The current situation in the Circuit Courts of Appeal is set out in Chart III. 

Theoretically, there is as much diversity as among the Districts. (Four Circuits have 

local rules looking primarily to state standards; three have local rules looking · 

primarily to ABA models; and one has an appendix to its local rules which looks 

primarily to the Federal Rules of Disciplinary Enforcement described above - a 

primarily state standard rule.) Two Circuits, the Fifth and the Ninth, have no local 

rule. This can. create the same problems discussed at length in Section IV in the 

context of Districts without rules. Again, according to the Clerk's Office of the Fifth 

Circuit, "it is longstanding court practice to look to and follow the et:lucal rules 

adopted by the highest court of the state of the attorney's domicile, while always 

being mindful of the ABA Model Rules." See Chart III, page 2. The Clerk's Office of 

the Ninth Circuit said that "it relies on existing cases." Id., page 3. 

The remaining two Circuits, the Fourth and the Eighth, have incorporated 

their attorney conduct rules into Internal Operating Procedures. See Fourth Circuit 

Internal Operating Procedure Rule 46.6(a)(3) and Eighth Circuit Internal Operating 

Procedure Rule II-D. These are set out on Chart III, pages 2 and 3, respectively. 

Internal Operating Procedures are not normally used for matters requiring notice to 

· attorneys. Pending changes in Rule 47 of the Federal Rules of Appellate Procedure 

would require uniform numbering for local rules when prescribed by the Judicial 

Conference and actual notice before sanctions are imposed for conduct not defined 

by uniform or local rule. This new version of Rule 47 may require changes in these 

Circuits. 

In general, however, the.Circuit rules are much easier to follow and update 

than the Districts. In addition, there are far fewer reported problems and reported 

cases relating to attorney conduct than in the Districts, which bear the burden of 

supervising trials, discovery procedures, and most settlements. Nevertheless, there 

is much fragmentation, at least in theory, even among the twelve Circuits, and a 

need for dearly promulgated local rules in at least four. 

IV. DISTRICTS WITH NO LOCAL RULE 

Determining the standards that govern attorney conduct is particularly 

problematic in Districts with no local rule at all. There are eleven of these Districts, 

and we have been in direct contact with the Clerk in almost every case. In these 

Districts, attorneys must rely on informal communication or case law. Not 
I 

:I 

ii 

!i 

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Page 11 

surprisingly, this has led to confusion in practice and a variety of solutions when 

ethical problems do arise. When this happens, some of these Districts have looked 

to the standards of their state, but others have considered only ABA models. Still 

others have considered a variety of standards, based on case law, ABA models, and 

state standards, and it is not uncommon to see decision in such Districts that refer to 

standards set in case law by other Districts and states. 

For example, the District of Alaska has no local rule. (It will be considering 

adopting a "state standard" local rule this month, June, 1995). Instead, it follows 

courts in other jurisdictions. U.S. v. Barnett, 814 F. Supp. 1449 (D. Alaska, 1992) is a 

typical case. In a motion to suppress a confession, the defendant in U.S. v. Barnett 

argued that the government attorney violated Disciplinary Rule 7-104 of the ABA 

Code. 814 F. Supp. 1449 (D. Alaska 1992). The court acknowledged that it did not 

have a local rule adopting standards of conduct, but went on to decide that DR 7-104 

was not applicable to the situation at hand. Id. at 1453 (court looks to other 

jurisdictions and finds that a majority do not apply this directive to pre-indictment 

non-custodial interrogation). In another case, two attorneys were sanctioned for 

"filing a needless motion for entry of default... and then persevering with vexatious 

opposition to defendant's motion to set aside the entry of default." Cox v. Nasche, 

149 F.R.D. 190, 192 (D. Alaska 1993). The court believed that the plaintiffs should 

have first checked with the defendant to see if the party was planning to litigate. 

The court relied on a state case, City of Valdez v. Salomon, 637 P.2d 298,299 (Alaska 

1991), finding that a violation of American College of Trial Lawyers Code of Trial 

Conduct rule 14 (a) (prohibiting "taking advantage" of a known lawyer "by causing 

any default. .. without first inquiring about the opposing lawyer's intentions") also 

constituted a violation of DR 7-106(c)(5) of the ABA Code. Cox, 149 F.R.D. at 192 n2. 

Acknowledging that the District did not have a local rule referring to state standards, 

the court found that the plaintiffs were not "legally obligated to notify defendants 

before seeking the entry of default" and declares that "[it] is not adopting the rule of 

Salomon by court decision." Id. Instead, the court held that the plaintiffs were being 

sanctioned for "litigating in bad faith and for violating local federal rules prohibiting 

the vexatious conducting of a litigation." Id. at 196 n8. The court, however, also 

found that it is "particularly significant [to show that the plaintiffs conduct did not 

reflect common practice] that the Alaska Supreme Court's decision in Salomon 

indicates that [the plaintiffs] would be in violation of the Code ... had they done in 

state court what they did in this Court." Id. 

The Western District of Missouri also lacks a local rule or standing order. In a 

case involving disqualification of an attorney, the parties disputed whether the ABA 

Code, which was in effect at the time of the underlying dispute, or the ABA Model 

Rules, which was later adopted by the state supreme court, applied to a conflict of 

interest allegation. Shadow Isle Inc. v. American Angus Association, 1987 WL 17337 

(W.D. Mo.). The court found that the standard by which the law firm 's 

r~presentation should be judged has "little significance ... , as both sets of standards 

forbid the conflict of interest" involved in the allegation. Id. at l. The court, 

however, goes on to discuss the two different standards at length and adopts the 

ABA Model Code because "there is no apparent reason to make this determination 

according to standards which have been revised or superseded." Id. at 3. 
Page 12 

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When contacted, the Clerk of the District of South Dakota said that the court 

has a general practice of following the rules promulgated by the state bar. Yet, in a 

case disqualifying a lawyer who was representing both an insurer and an insured in 

the underlying tort action under a reservation of rights by the insurer, the court 

looked to a variety of rules. State Farm Mutual Automobile Insurance Co. v. 

Armstrong Extinguisher Service, Inc., 791 F. Supp. 799 (W.D. South Dakota 1992). 

First, the court pointed out that under the state Rules of Professional Conduct the 

lawyer cannot represent parties of conflicting interest without the consent of all 

parties. Thus, the court finds, "at the very least,. .. an appearance of impropriety." Id. 

at 801. Then, it looked to California precedent holding that when an insurance 

company interposes a reservation of rights creating a conflict of interest, it must 

provide separate counsel. Finally, it argued that a Circuit precedent, applying 

"several canons of the Code of Professional Responsibility relating to conflict of 

interest when representing multiple clients," mandated that "an attorney cannot 

represent two clients whose interests are actually ... conflicting." Id. at 802, citing U.S. 

Fidelity v. Roser, 585 F.2d 932 (8th Cir. 1978). 

The District of North Dakota has no local rule. When ethical issues arise, 

they are "primarily addressed to the court or sent to the State Bar Counsel." Clerk's 

Office. In Halligan v. Blue Cross Blue Shield, the plaintiff alleged a confli_ct of 

interest between the defendant insurance company and its law firm. 1994 WL 

497618 (D. N.D.). The Plaintiff had previously contacted the defendant's law firm 

seeking representation and had given them a substantive account of his case. The 

defendant law firm refused to accept a contingency fee based representation. Her~, 

the court adopted the state Rules of Professional Conduct, and then looked to the 

state and other federal courts for standards to determine when an attorney client 

relationship exists Id. at 2. 

Districts such as the Southern District of Mississippi determine ethical 

standards on a "case by case basis." (Clerk's Office). In a recent disqualification 

motion for potential violation of client confidences, the court looked to the 

following rules: the Mississippi Rules of Professional Conduct, the state bar 

comments to the Rule, and the ABA Model Rules. Pearson v. Singing River 

Medical Center, 757 F. Supp. 768 (S.D.Ms. 1991). The court also looked to 7th and 5th 

Circuit precedent for a disqualification test of "a genuine threat that confidences 

revealed to his former counsel will be divulged to his present adversary". Id. at 770. 

The court ultimately held that disqualification was unnecessary despite the fact that 

the attorney formerly represented plaintiff in another case. 

Some Districts have standing orders that govern attorney conduct. The 

Western District of North Carolina, which last amended its rules in 1965, has a 

standing order asserting "that the standards shall be the Canons of Ethics of the 

North Carolina Supreme Court and the ABA." Yet, in recent disqualification cases, 

the court has cited various other authorities as well. See.€.,.&. Barentine v. United 

States, 728 F. Supp. 1241' (W.D. N.C.)(court referred to the conflict of interest rule of 

the ABA Model Rules and the principles of the ABA Standards for Criminal Justice 

when advising that an attorney should be disciplined for having an affair with his 
-11- Page 13 

client's girlfriend during the representation period.); and In Re Southeast Hotel 

Properties, 151 F.R.D. 597 (W.D. N.C. 1993)(court stated that the "ABA ethical rules 

and the North Carolina Rules of Professional Conduct apply to practice" in the 

court, and referred to the state code and the ABA Model Rules. 

Districts without a local rule governing attorney conduct would benefit from 

almost any of the reform options in Section VII, above, whether they be in the form 

of uniform national rules or uniform local rules. Even a uniform local rule simply 

adopting current state standards would be a substantial improvement in giving fair 

notice to practitioners. 

V. EXAMPLES OF RECENT PROBLEMS IN THE DISTRICTS 

Recent experience, particularly in the form of a growing number of reported 

cases, shows that all is not well with the practical application of attorney conduct 

rules in the Districts. Ambiguously drafted rules have led to unnecessary litigation, 

wasting the time of courts and lawyers alike. In addition, some courts have ignored 

even unambiguous local rules and applied standards from many other sources. As 

Geoffrey Hazard has observed, "[a]pparently, in legal ethics there is a brooding 

omnipresence in the sky over Texas."6 In turn, these ambiguities have led to due 

process and "void for vagueness" challenges in increasing numbers and also 

litigation over Erie, Supremacy Clause, and conflict of laws issues. In frustration, 

many federal agencies have begun to promulgate their own attorney conduct rules, 

adding yet another layer of complexity and potential conflict. 

Even a very extensive Report cannot document all of these problems, but a 

series of examples have been selected that provide good, and typical, illustrations. 

Part "A" of this section examines four basic conflicts that arise due to ambiguously 

drafted local rules. First, the local rule may prescribe one standard of conduct, but it 

is unclear whether the standard is the ABA Model Rules, or the ABA Model Code. 

Second, the local rule may prescribe one standard of c_onduct, but it is unclear 

whether the standard is the ABA version, or the state's amended version. Third, 

local rules may prescribe state standards of conduct as the standards of conduct for 

federal court, but the applicable state standard may be ambiguous. Fourth, local 

rules may refer to multiple standards of conduct for attorneys practicing in a 

particular district without specifying which standard takes precedent. 

Part "B" examines how inconsistent federal interpretations of local rules 

governing attorney conduct lead to incorporating ABA models as standards of 

conduct, even in Districts where the court's rules fail to refer to ABA models. These 

cases often reason that because federal case law utilizes ABA versions of the Model 

Rules or Model Code for interpretative purposes, and because attorneys are held to 

consult the case law, the ABA versions of the Model Rules or Model Code should 

also govern attorney conduct. This can lead to serious confusion, particularly when 

the ABA Models themselves conflict. 

6Geoffrey C. Hazard Jr., "Uniform Discrepancies," note 1 supra, A20, commenting on a recent Fifth 

Circuit holding. 
Page 14 

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Part "C" examines the possibility that conflicting attorney conduct standards 

and ambiguously drafted rules may not satisfy procedural due process requirements. 

Part "D" briefly describes some of the inherent Erie, Supremacy Clause, and conflict 

of law problems to be encountered, and Part "E" describes the growing difficulties 

when federal agencies, in reaction, begin to adopt their own attorney conduct rules. 

A. AMBIGUOUSLY DRAFTED RULES 

Ambiguously drafted local rules prescribing attorney standards of conduct 

create four basic conflicts between applicable standards of conduct for attorneys 

practicing within a single district. First, a local rule may adopt an ABA model as its 

standard of conduct, but the rule fails to specify whether the Model Rules or the 

Model Code are the applicable standard. See Isador Paiewonsky Associates, Inc., v. 

Sharp Properties, Inc., 1990 WL 303427 (D. Vir. Is. 1990); Culebras Enterprises Corp., 

v. Rivera-Rios, 846 F.2d 94, 96 (1st Cir. 1988). Second, the local rule may adopt the 

Model Rules as its standard, but fails to specify whether the standard is the ABA 

version, or the amended version of the state in which the district court sits. See 

United States v. Walsh, 699 F. Supp. 469,470 (D. N.J. 1988). Third, the local rule may 

adopt the standards of the state in which the district court sits, but it is unclear 

whether the state's standards conform to the Model Rules or the Model Code. See 

Green v. Montgomery County, Alabama, 784 F. Supp. 841,843 n.4 (M.D. Ala. 1992). 

Finally, conflicts may arise when the local rule prescribes multiple standards of 

conduct for its district, without specifying which standards take precedent. See In Re 

Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation v. 

United States District Court for the Central District of California, 658 F.2d 1355, 1359 

(9th Cir. 1981). 

1. Local Rules Which Adopt An ABA Model But Fail to Indicate Whether the 

Applicable Model Standard is the ABA Model Rules or Model Code 

Attorneys may encounter conflicting standards when the district court's local 

rule adopts a standard of conduct drafted by the ABA, but the rule fails to clearly 

indicate whether the standard is the Model Rules or Model Code. See Paiewonsky, 

supra, 1990 WL 303427 at 6; Culebras, supra, 846 F.2d at 96-97. Isador Paiewonsky 

Associates v. Sharp Properties best exemplifies this type of conflict. See 1990 WL 

303427 (D. Vir. Is. 1990). The District of the Virgin Islands adopted the following 

local rule in 1982: "Acts or omissions by an attorney admitted to practice in this 

court, individually or in concert with any other person or persons, which violate 

the Code of Professional Responsibility adopted by this Court shall constitute 

misconduct and shall be grounds for discipline.... The Code of Professional 

Responsibility adopted by this court is the Code of Professional Responsibility 

adopted by the American Bar Association, as amended from time to time by that 

body." Id. at 6. The court defined the threshold issue. 'Whether Local Rule 57(e) 

countenances application of the ABA Code of Professional Responsibility or the 

ABA Model Rules of Professional Conduct to ethical matters before this court is a 

question for which there is no simple answer." See id. at 7. 
-13- Page 15 

The court concluded that the local rule empowered the district court to utilize 

the ABA Model Rules. Id. at 7. The court reasoned that although the local rules use 

the language "Code of Professional Responsibility," the language was not intended 

to be the proper name of any particular standard. Id. Thus, the applicable standard 

was clearly ambiguous. See Id., 6-7. Because of the ambiguity, the court relied on 

the likely intent of the framers of the local rule: "Most likely the framers of the local 

rule intended to ensure that this court would remain responsive to developments 

in the law of professional responsibility and that the court's ethical rules would 

comport with those most recently adopted by the ABA, which has long been the 

vanguard in the creation of model rules of ethics for lawyers." Paiewonsky, supra, 

1990 WL 303427 at 7. The ABA Model Rules replaced the ABA Model Code in 1983, 

and the local rule, by clear implication, provided for the ABA's amended versions 

of its standards. See Id. Thus, the ABA Model Rules had replaced the ABA Model 

Code within the local rule. See Id., 6-7. 

2. Local Rules Which Adopt The Model Rules but Fail to Specify Whether the 

Applicable Standard is the ABA Model Rules or a State Version of the Model 

Rules 

Even if tl1e local rule clearly adopts the Model Rules as the court's standard of 

conduct, the local rule may fail to specify whether the standard adopts the exact ABA 

version of the Model Rules, or the amended version of the state in which the court 

sits. United States v. Walsh, 669 F. Supp. 469 (D.N.J., 1988) demonstrates this type of 

conflict in the context of attorney disqualification proceedings. In Walsh, the 

government moved to disqualify a former assistant United States attorney and his 

law firm from representing a defendant charged with racke_teering activity. 699 F. 

Supp. at 470. The government alleged that because the attorney representing the 

defendant had exercised supervisory authority over activities closely related to the 

case at hand while with the Justice Department, the attorney was barred from 

representing the defendant. See Id., 471-472. 

As in Paiewonsky, the threshold issue was the applicable standard of conduct. 

See Paiewonsky, supra, 1990 WL 303427 at 7. The importance of resolving the issue 

was emphasized by the court, "Resolution of this issue prior to ruling on the 

disqualification motion is imperative as the [ABA] Model Rules provide a different 

standard in determining disqualification than would the rules as amended by the 

New Jersey Supreme Court." Id. The ABA Model Rules provided that a lawyer 

shall not represent a private client in connection with a matter in which the lawyer 

participated "personally and substantially as a public officer or employee." Id. at 471-

72 n.1 (quoting from the 1988 version of the ABA Model Rules, Rule 1.11). The 

New Jersey state version of the rules provided an additional and more demanding 

test that prohibited the former government employee from representing the private 

client if there was an "appearance of impropriety." Walsh, supra, 699 F. Supp. at 472 

n.2 (quoting from the 1988 New Jersey Rule 1.11). Furthermore, the ABA Model 

Rules permits screening of attorneys in order to avoid disqualification of law firm 

for whom the former government attorney works. Id. at 472. The New Jersey 

version, on the other hand, did not provide for screening of former government 

attorneys; thus, disqualification would always be imputed to the law firm. Id. 
Page 16 

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Local Rule Six for the District of New Jersey stated: "The Rules of 

Professional Conduct and the Code of Judicial Conduct of the American Bar 

Association shall govern the conduct of Judges and the members of the bar admitted 

to practice in this court." Id. at 471. The court held that the District Court's local 

rules incorporate the ABA Model Rules without amendment. Id. at 475. The court 

reasoned as follows: (1) supervision of the professional conduct of attorneys 

practicing in a federal court is a matter of federal law; (2) it is well settled law that the 

federal courts have "autonomous control" in supervising the conduct of attorneys 

who practice before their courts; (3) the autonomous power of the federal court 

supports the decision that the court is not bound to apply the ABA Model Rules as 

amended by the New Jersey Supreme Court. See id. at 473. 

A portion of the government's argument demonstrates the inherent 

ambiguity of the District of New Jersey local rule. See Walsh, supra 699 F. Supp. at 

472-73. The government argued that Local Rule Six had to be read in light of Local 

Rules Seven and One. Id. at 473. Local Rule Seven provided that an attorney may 

be disciplined for violating the "disciplinary rules." Id. at 472. Local Rule One 

defined "disciplinary rules" as "the rules of Professional Conduct of the American 

Bar Association as amended by the Supreme Court of New Jersey." Id. at 472-73. 

The government argued that Local Rule Six could not be read in isolation, but must 

be read in harmony with Rule Seven and the definitional section. Id. at 473. Thus, 

the only way to reconcile Rule Six with Rule Seven was to interpret Rule Six as 

referring to the New Jersey version of the rules. Id. Nevertheless, the court found 

the government's argument, "ambiguous at best." Id. 

3. Local Rules Which Adopt State Standards, But Fail to Indicate Exactly Which 

State Standards Apply 

A local rule may clearly state that the applicable standards of conduct are the 

state's standards of conduct, but it still may be unclear whether the state's standards 

are a version of the Model Rules or the Model Code. A good example in Green v. 

Montgomery Courts, Alabama. 784 F. Supp. 841 (M.D. Ala. 1992). Green, like United 

States v. Walsh, involved an attorney disqualification issue. Green, supra, 784 F. 

Supp. at 842; Walsh, supra, 699 F. Supp. at 470. The plaintiff, Green, contended that 

under the Alabama Rules of Professional Conduct, the defendant's law firm should 

be disqualified from representing the defendant because a member of the 

defendant's law firm represented Green in prior cases. See id. at 842. Local Rule 

l(a)(4) for the Middle District of Alabama stated: "Any attorney who is admitted to 

the bar of this court or who appears in this court ... shall be deemed to be familiar 

with and governed by ... the ethical limitations and requirements governing the 

behavior of members of the Alabama State Bar, and, to the extent not inconsistent 

with the preceding, the American Bar Association Model Rules of Professional 

Conduct." Id. The Alabama Rules of Professional Conduct replaced the Alabama 

Code of Professional Responsibility on January 1, 1991. See id. at 843 n.4. 
-15- Page 17 

The District Court found that the applicable standard was the Alabama Rules 

of Professional Conduct. Id. The court held that because the plaintiff Green filed his 

complaint after January 1, 1992, the defendant's law firm did not accept employment 

in the matter until after that time. See Green, supra, 784 F. Supp. at 843. Thus, the 

possible conflict of interest was governed by the Alabama Rules of Professional 

Conduct, as adopted on January 1, 1991. Id. Furthermore, the court noted that all 

parties had relied on the Alabama Rules in making their arguments on the 

disqualification issue. See id. The court did, however, recognize the inherent 

difficulty of the issue: "it is not self evident whether the Alabama Rules or the prior 

Alabama Code should apply to the ethical question under analysis." See id. 

4. Local Rules That Incorporate Multiple Standards of Conduct 

Finally, there are District Local Rules which contain multiple standards of 

conduct. This can cause confusion and direct conflict between differing obligations 

for attorneys. A good example is In Re Coordinated Pretrial Proceedings. in 

Petroleum Products Antitrust Litigation v. United States District Court for the 

Central District of California, 658 F.2d 1355 (9th Cir., 1981). Local Rule l.3(d) for the 

Central District of California provided as its standards "the rules of professional 

conduct of the state Bar of California.... In that connection, the Code of Professional 

Responsibility of the American Bar Association should be noted." Id., at 1358. The 

issue was again attorney disqualification. Id. at 1358-1359. The Court raised the 

possibility that two different standards may apply to the attorneys in the case: 

'[b]ecause the local rule refers to both, a possible difficulty arises because of the 

difference between the ABA Code and the analogous provision of the Rules of 

Professional Conduct of the State Bar of California." Id. at 1358-59. The court 

eventually failed to resolve which standard takes precedent by finding that neither 

the ABA Code nor the California Bar Rules operated to disqualify counsel. Id. at 

1359. 

B. FEDERAL CASES INCORPORATING STANDARDS OF ATTORNEY 

CONDUCT NOT INCLUDED IN ANY RULE 

Attorneys cannot safely rely on the explicit language of local rules governing 

attorney conduct. Many recent federal decisions have "incorporated" external 

standards into local rules that are simply not apparent in the rules themselves. See, 

g__,g,, Iacono Structural Engineering:, Inc. v. Humphrey, 722 F.2d 435, 438-40 (9th Cir. 

1983); Nelson v. Green Builders, Inc., 823 F. Supp. 1439, 1443 (E.D. Wis. 1993); 

Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D. N.Y. 1990). The 

relevant law can become particularly perplexing where federal courts have explicitly 

incorporated ABA versions of the Model Rules or Model Code into local rules 

governing attorney conduct, even though those local rules fail to mention either. 

See Iacono, supra, 722 F.2d at 440; Nelson, supra, 823 F. Supp. at 1443. Other courts, 

have used ABA standards not expressed in the local rule as a means "to interpret" 

the local rule. See, e.g:., Resolution Trust Corp., v. "Bum" Bright, 6 F.3d 336, 341 (5th 

Cir. 1993); In Re American Airlines, Inc., 972 F.2d 605,610 (5th Cir. 1992); McCallum 

v. CSX Transportation, Inc., 149 F.R.D. 104, 108 (M.D. N.C. 1993). Some federal courts 

have taken the exactly opposite approach, and refused to incorporate standards of 
Page 18 

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conduct not explicitly stated in the local rules. See, for example, Mason Dixon Lines. 

Inc., v. Glover, 1989 WL 135219 at 1 (N.D. Ill. 1989). Compare Polycast, supra, 129 

F.R.D. at 624 (adopting the standard stated in local rule, but acknowledging court's 

ability to utilize other standards not declared in local rule). 

1. Federal Courts That Expressly Incorporate ABA Models Into Their District's 

Local Rules 

Some District Courts have expressly incorporated ABA models into their 

district's local rules, even though those rules fail to mention ABA models. A good 

example is Iacono Structural Engineering Inc. v. Humphrey, 722 F.2d 435 (9th Cir., 

1983); see also Nelson, 823 F. Supp. at 1443 (indicating that ethical questions before 

court were governed by federal precedent and the ABA Model Rules, even though 

local rule adopted the ABA Model Rules as modified by Supreme Court of 

Wisconsin). In Iacono, the court held that the ABA Model Code was a source of 

ethical standards under the local rule in the district court, even though the local 

rule made no mention of the ABA Model Code. Id. at 440 (case arose from attorney 

disqualification action; on appeal the issue was whether district court erred in 

applying ABA Model Code as source of ethical standards for attorney in federal 

court). Local Rule 110-3 of the Northern District of California stated: "Every 

member of the Bar of this court and any attorney permitted to practice in this court 

under local rule 110-2 shall be familiar with and comply with the standards of 

professional conduct required of members of the State Bar of California and 

contained in the State Bar Act, th@ Rules of Professional Conduct of the State Bar of 

California and decisions of any court applicable thereto which are hereby adopted." 

Id. at 439. The court observed that: 'Recent decisions of the California courts ruling 

on the professional standards required of California lawyers use the Model Code as a 

source of ethical standards to supplement and explicate the principles and rules set 

forth in the California State Bar Act and Rules of Professional Conduct of the State 

Bar of California covering certain conduct where the state bar act and rules are 

imprecise or incomplete." Id. 339-40 .. Thus attorneys in the federal courts should be 

on notice that the Model Code could be used as a source of ethical standards even 

though it is not explicitly mentioned. See id. 339-40. 

While the Iacono court held that the Model Code could be used as a source of 

ethical standards under the local rule, the court was obviously concerned about fair 

notice. The court held that use of the Model Code should be limited to situations 

where the standards in the local rule are imprecise or incomplete. See Iacono, 

supra, 722 F.2d at 338-40. The court further observed that the Model Code was used 

when state courts interpret the state standards of conduct. See Id. at 339. Thus, in 

order to maintain consistent application of the Model Code, the Code should be 

used at the federal level as well, but only for the same purposes. See Id. 339-40. 

Otherwise, attorneys will lack notice of the ethical standards that apply to their 

conduct. See id. at 338 (stating that advance notice to attorneys of conduct standards 

is essential to a rule of law). 
2. 

-17- Page 19 

Federal Courts That Do Not Explicitly Incorporate ABA Models, But Look To 

Those Models to "Interpret" Local Rules 

Some federal courts have stopped short of outright "incorporation" of ABA 

models into their local rules, but still look to ABA models to "interpret" local rules 

and resolve ambiguities - even if the local rules make no mention of ABA models 

and rely, instead, on state standards. Three recent Fifth Circuit cases are good 

examples: Resolution Trust, supra, 6 F.3d at 341; American Airlines, supra, 972 F.2d 

at 610; In Re Dresser Indust., 972 F.2d 540,543 (5th Cir. 1992). These cases hold that 

state standards adbpted by District local rules cannot be the sole authority governing 

a motion to disqualify. Resolution Trust, 6 F.3d at 341; American Airlines, 972 F.2d 

at 610; Dresser, 972 F.2d at 543. They reason that motions to disqualify are 

substantive motions affecting the rights of parties and, thus, standards developed 

under federal law apply. See Dresser, supra, 972 F.2d at 543. Federal law may 

incorporate ABA standards not set forth in local rules. See Resolution Trust, supra, 

6 F.3d at 341 (source for professional standards is canons of ethics developed by 

ABA); American Airlines, supra, 972 F.2d at 610 (precedent has applied ethical 

canons contained in ABA Model Code); Dresser, supra, 972 F.2d at 544 (utilizing 

ABA Model Code and ABA Model Rules). 

In Dresser, the defendant moved to disqualify plaintiff's counsel in a class 

action antitrust suit. 972 F.2d at 541. The defendant, Dresser Industries, claimed that 

the concurrent representation of Dresser in two unrelated pending lawsuits by 

plaintiff's counsel, Sussman Godfrey, warranted disqualification. Id. Local Rule 4(b) 

of the Southern District of Texas provides that the standards of conduct for lawyers 

practicing in the District Court should be the Code of Professional Responsibility of 

the State Bar of Texas. Nevertheless, the court utilized both the ABA Model Rules 

and ABA Model Code. Id. at 544 (relying on precedent to incorporate the ABA 

models). The local rule was not the sole governing authority because 

disqualification motions "affected the substantive rights of individuals." See id. at 

543. Furthermore, the court reasoned: "[the district court's] local rules alone cannot 

regulate the parties' rights to counsel of their choice." Id. 

Other federal courts have broadly incorporated standards of conduct not 

enunciated in the district's local rules. A good example is McCallum v. CSX 

Transportation, Inc. McCallum, supra 149 F.R.D. at 108. In McCallum, the court 

utilized standards present in the local rule as well as the ABA Model Rules to issue 

a protective order against the plaintiff's attorney for ethical violations stemming 

from ex parte contact with the defendant's employees. See id. at 104. In justifying 

the use of standards of conduct not mentioned in the court's local rules, the court 

stated: "Inasmuch as neither Congress nor the Supreme Court have adopted a 

uniform set of federal ethical standards governing attorneys practicing in the federal 

courts, the various federal courts may look to the rules of the state in which that 

court sits or widely accepted national rules, such as the American Bar Association 

Model Rules of Professional Conduct." Id. at 108. While Local Rule 505 for the 

Middle District of North Carolina utilized the Code of Professional Responsibility 

promulgated by the Supreme Court of North Carolina, the court looked to federal 

law as a means to interpret and apply the rules. See id. The court reasoned: "even 
Page 20 

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when a federal court utilize state ethic rules, it cannot abdicate to the state's view of 

what constitutes professional conduct ... [the court] still must look to federal law for 

interpretation of .those canons and in so doing may consult federal case law and 

other widely accepted national codes of conduct, such as the ABA Model Rules." Id. 

See also Polycast, supra, 129 F.R.D. at 625 (for the proposition that a federal court is 

not bound, as a matter of law, by state interpretations of standards of conduct despite 

the exact wording of the District local rule.) 

3. Federal Courts That Refuse to Incorporate Standards Not Declared in Local 

Rules 

Some federal courts, however, have resisted incorporating ABA models into 

the interpretation local rules when these models are not expressly enunciated. A 

good example is Mason Dixon Lines, Inc. v. Glover, 1989 WL 135219 at 1 (N.D. Ill. 

1989). In Mason Dixon Lines, the defendants moved to disqualify the plaintiff's law 

firm. Id. 1989 WL 135219 at 1. According to the court, the ABA Model Rules would 

require disqualification, but the ABA Model Code would not. Id. The court then 

turned to the relevant local rules of the Northern District of Illinois, which 

provided that the Model Code was the relevant standard. In adhering strictly to the 

standards set forth in the local rule, the court reasoned: " ... this court cannot permit 

conduct that would be a violation of its own disciplinary rules. Thus, to the extent 

certain conduct would violate the Model Code, this court cannot follow the Model 

Rules instead." Id. at 1. 

The case of Polycast Technology Corp. v. Uniroyal. Inc., supra, is another good 

example of a court's refusal to adopt standards of conduct not expressed in the 

District's local rules. 129 F.R.D. at 623-25. The issue before the court was whether 

the language "in force" in Local Rule 4(f) of the Southern District of New York 

permitted utilization of the ABA Model Rules when the local rule specifically 

adopted the Model Code and the state's interpretation of the Model Code. Id. at 623. 

The court held that the Code, not the Rules, was applicable in its district. Id. at 624. 

See also Emons Indust., Inc. v. Liberty Mutual Insurance Co., 747 F. Supp. 1079, 1085 

(S.D. N.Y. 1990) (citing Polycast for proposition that Model Code not the Model 

Rules are primary source of guidance with respect to attorney conduct). The Polycast 

court reasoned that construing the rule to utilize the standard presently adopted by 

the state facilitated in identification of the ethical principles actually in effect. 

Furthermore, according to the court, "this construction avoids subjecting attorneys 

to potentially inconsistent sets of ethical requirements in the state and federal courts 

within the same geographic area." Id., at 623-625. 

On the other hand, the Poly cast court held that it was not bound by state court 

"interpretations" of the Model Code. Polycast, supra 129 F.R.D. at 625. See 

McCallum, supra, 149 F.R.D. at 108. Thus, while the ABA Code was the applicable 

standard of conduct under the local rules, the court, for interpretive purposes, could 

utilize the ABA Model Rules. See Polycast, supra, at 625. The court stated: "When 

we find an area of uncertainty, we must use our judicial process to make our own 

decision in the interests of justice to all concerned.... In determining the reach of DR 

7-104(A)(l), then, it is appropriate to refer to the policies that underlie it, to state and 
-19- Page 21 

federal cases construing it, and to the analogous Model Rule 4.2 that is derived from 

it." Id., at 625. See also Kitchen v. Aristech Chemical, 769 F. Supp. 254, 258 (S.D. 

Ohio 1991) (citing Polycast for the proposition that the ABA Model Rules and 

policies may be utilized for interpretation despite a local rule which identifies the 

ABA Model Code as the standard of conduct). 

C. DUE PROCESS AND VAGUENESS PROBLEMS 

The conflicting decisions described above are more than just a nuisance to 

practicing lawyers and a waste of judicial energy. In serious cases, poorly drafted 

local rules and conflicting interpretations can cause genuine hardship. A lawyer's 

ability to practice law is more than a matter of honor, it is a livelihood, and a 

sanction that suspends that livelihood needs to be based on sufficient notice to meet 

constitutional due process guarantees. 

The Supreme Court has twice visited lack of notice issues in the context of 

vague standards for attorney conduct. In re Ruffalo, 390 U.S. 544 (1968) dealt with a 

case in which an attorney was disbarred from the federal courts of Ohio, following 

disbarment in the state courts. In Ruffalo, the Supreme Court held that, while a 

state disbarment action is entitled to respect, it is not binding on the federal courts. 

Id. 547, citing Theard v. United States, 354 U.S. 278, 281-282. (For an inverse case 

where federal discipline was imposed despite the failure to complete a state 

investigation, see In the Matter of Rufus Cook,_ F.3d _ (1995), 1995 WL 73098 

(7th Cir.).) The majority further held that a lawyer charged with misconduct is 

"entitled to procedural due process, which includes fair notice of the charge." In re 

Ruffalo, supra, 390 U.S. at 550. The Ruffalo majority held that the state disbarment 

proceedings failed to provide fair notice because the petitioner had no notice that his 

acts were considered a disbarment offense until after he had testified. (The 

petitioner had hired a railroad employee to investigate "after hours" accidents in 

different yards of the same railroad.) The majority opinion quoted Judge Edwards 

below that "[s]uch procedural violation of due process would never pass muster in 

any normal civil or criminal litigation." In re Ruffalo, 370 F.2d 447 (6th Cir. 1967), at 

462 (dissent). 

In a concurring opinion, Justice White went even further. White noted that 

the 6th Circuit majority had disbarred the petitioner pursuant to their then Local 

Rule 6 (3), which read as follows: 

"When it is shown to the court that any member of its bar has been 

suspended or disbarred from practice in any other court of record, or 

has been guilty of conduct unbecoming a member of the bar of the 

court, the member will be forthwith suspended from practice before the 

court and notice of his suspension will be mailed to him, and unless he 

shows good cause to the contrary within 40 days thereafter, he will be 

further suspended or disbarred from practice before the Court." Rule 6 

(3), Court of Appeals for the Sixth Circuit. 

Id., at 554-555. 
'i 

j' 

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White observed: 

Even when a disbarment standard is as unspecific as the one before us, 

members of a bar can be assumed to know that certain kinds of 

conduct, generally condemned by responsible men, will be grounds for 

disbarment. This class of conduct certainly includes the criminal 

offenses traditionally known as malum in se. It also includes conduct 

which all responsible attorneys would recognize as improper for a 

member of the profession. 

The conduct for which the Court of Appeals disbarred petitioner 

cannot, however, be so characterized. Some responsible attorneys, like 

the judge who refused to order petitioner disbarred from practice in the 

Northern District of Ohio, 249 F. Supp. 432 (1965), would undoubtedly 

find no impropriety at all in hiring a railroad worker, a man with the 

knowledge and experience to select relevant information and appraise 

relevant facts, to "moonlight" - work on his own time - collecting 

data. On the other hand some, like the officials of the Mahoning 

County and Ohio State Bar Associations, would believe that 

encouraging a man to do work arguably at odds with his chief 

employer's interests is unethical. The appraisal of petitioner's conduct 

is one about which reasonable men differ, not one immediately 

apparent to any scrupulous citizen who confronts the question. 

Id. at 555-556 

White concluded: 

I would hold that a federal court may not deprive an attorney of the 

opportunity to practice his profession on the basis of a determination 

after the fact that conduct is unethical if responsible attorneys would 

differ in appraising the propriety of that conduct. I express no opinion 

about whether the Court of Appeals, as part of a code of specific rules 

for the members of its bar, could proscribe the conduct for which 

petitioner was disbarred. 

Id. at 556. (emphasis added) 

The Supreme Court has more recently returned to this issue in another Ohio 

case, Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 

U.S. 626 (1985). In Zauderer the Supreme Court was asked whether the Ohio Board 

of Commissioners had lawfully reprimanded an attorney for certain advertising 

practices. Id. at 635-36. The majority opinion, by Justice White, upheld the 

reprimand against due process challenges, even while it struck down the Ohio ban 

on the use of illustrations in legal advertisements on first amendment grounds. See 

id., at 636. In so holding, the court concluded that the Ohio Supreme Court and the 

State Board of Commissioners did not violate the attorney's due process rights 
-21- Page 23 

because they had provided the attorney with adequate notice of the standards and an 

"ample opportunity" to respond to allegations. Id. at 654-55. 

In dissent, Justice Brennan joined by Justice Marshall, concluded that the 

Ohio standards of conduct failed to adequately notify the attorney of ethical 

requirements; and thus, the state violated the attorney's due process rights. Id. at 

664. The Ohio standards required disclosure in attorney advertising in order to 

ensure honest advertising, but the standards never gave Zauderer notice of what he 

was "required to include in the advertisement." See id. at 665-666, relying on Justice 

White's concurring opinion in In Re Ruffalo, supra. Furthermore, the conduct in 

question was not conduct which all reasonable attorneys in the profession would 

recognize as improper, thus, professional norms also did not provide proper notice. 

Zauderer, 471 U.S. a,t 666. According to Brennan, Zauderer's right to due process of 

law was violated. Id. at 664. 

Several Circuit courts have also addressed the issue of impermissibly vague 

standards governing attorney conduct. See In Re Bithony, 486 F.2d 319, 324 (5th Cir. 

1973); and United States v. Wunsch,_ F.3d ___, 1995 WL 246066 (9th Cir.). See 

also United States v. Hearst, 638 F.2d 1190, 1197 (9th Cir. 1981) (holding Federal Rule 

of Appellate Procedure Rule 46a not unconstitutionally vague). Bithony was an 

attorney suspension/ disbarment action. 486 F.2d at 320. An attorney had filed 

frivolous petitions for review in immigration cases solely to delay deporting the 

aliens he represented. Id. at 321. The attorney was charged with violating the 

Federal Rules of Appellate Procedure Rule 46. (Rule 46 incorporating the . 

"unbecoming a member of the bar" standard in subsections (b) and (c).) Id. "[The 

attorney] did not demean himself uprightly and according to the law ... [he was] 

guilty of conduct unbecoming a member of the Bar of the Court." Id. Ultimately the 

court suspended the attorney for six months. Id. at 325. 

In order to suspend the attorney, the court addressed and dismissed the 

attorney's argument that the rule was so vague that it violated the attorney's due 

process of law because it failed to notify the attorney of prohibited conduct. Bithony, 

486 F.2d at 324. The court acknowledged that the language in the abstract might 

present a colorable due process claim. When placed in the context of the legal 

profession, however, the rule took on definiteness and clarity. Id. 324-325. As the 

legal profession is a discrete professional group with a complex code of behavior, 

including the ABA Code, the court reasoned that "conduct unbecoming a member 

of the court" provided sufficient notice to the attorney that his actions were 

prohibited. See id. 324. The court concluded that no ambiguity existed when the 

rule was applied according to the ascertainable standards of the legal profession. The 

court did not address the issue of what happens when standards become so 

confusing that an attorney cannot reasonably parse out the applicable rule of 

conduct. 

Analogous due process concerns have arisen in other professions, including 

the medical and educational fields. See U.S. v. Rosenburg, 515 F.2d 190, 197 (9th Cir. 

1975); Wishart v. McDonald, 500 F.2d 1110, 1117 (1st Cir. 1974); and Margarete v. 

Edwards, 488 F. Supp. 181,209 (E.D. La 1980). Where the conduct is such that all 
Page 24 

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reasonable people practicing in the particular profession would agree that it violates 

accepted standards, the courts will not scrutinize a vague statutory standard. 

Rosenberg, supra, 515 F.2d at 197 (holding statutory language limiting conduct of 

doctors not unconstitutionally vague when read in context of medical community 

standards); Wishart, supra, 500 F.2d at 1117 (holding "conduct unbecoming a 

teacher" provides adequate notice to members of profession in light of comm.unity 

standards). In Margarete v. Edwards. however, the court struck down vague 

legislation that required doctors to divulge information to their patients, but did not 

adequately define the specific information to be divulged. Margarete, supra. 488 F. 

Supp at 209. 

Very recently, the Nin.th Circuit set aside an attorney sanction based on Local 

Civil Rules 2.5.1 and 2.5.2 of the Central District of California. United States v. 

Wunsch._ F.3d __, 1995 WL 246066. Local Rule 2.5.1 of that District 

incorporates Cal. Bus. & Prof. Code § 6068 (F) requiring an attorney "to abstain from 

all offensive personality." See Swan, United States v. William W., 833 F. Supp 794, 

798. The Ninth Circuit set aside the sanction based on the "offensive personality" 

rule. 

"Clearly, 'offensive personality' is an unconstitutionally vague term 

in the context of this statute. See e.g .• Cohen v. California. 403 U.S. 15, 

25 (1971) (disturb[ing] the peace ... by ... offensive conduct' fails to give 

sufficient notice of what was prohibited). A5 'offensive personality' 

could refer to any number of behaviors that many attorneys regularly 

engage in during tl1e course of their zealous representation of their 

clients' interest, it would be impossible to know when such behavior 

would be offensive enough to invoke the statute. For the same reason, 

the statute is 'so imprecise that discriminatory enforcement is a real 

possibility[,]' Gentile. 501 U.S. at 1051 (Kennedy, J., minority opinion), 

and is likely to have the effect of chilling some speech that is 

constitutionally protected, for fear of violating the statute." United 

States v. Wunsch. supra. 1995 WL 246066, at 5. Cf. Standing 

Committee on Discipline of the United States District Court for the 

Central District of California v. Yagman. 850 F. Supp 1384, (1994) 1389-

1390; 1393-1394. (Applying discipline under Local Rule 2.5.2). 

In so doing, the Ninth Circuit restated the traditional due process law relating to 

professional discipline: 

"The Fifth Amendment due process requires a statute to be sufficiently 

clear so as not to cause persons 'of common intelligence ... necessarily 

[to] guess at its meaning and [to] differ as to its application[.]' Connally 

v. General Constr. Co .• 269 U.S. 385,391 (1926). Laws that are 

insufficiently clear are void for three reason: (1) To avoid punishing 

people for behavior that they could not have known was illegal; (2) to 

avoid subjective· enforcement of the laws based on arbitrary or 

discriminatory interpretations by government officers; and (3) to avoid 
-23-

any chilling effect on the exercise of First Amendment freedoms. 

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)." 

Page 25 

Id. at 5. 

In contemplating the increasing confusion caused by ambiguous, vague and 

balkanized rules governing attorney conduct, these due process standards must be 

taken seriously. 

D. MUL TIFORUM PROBLEMS 

This Report has already described the numerous difficulties, both theoretical 

and practical, that can arise within a single District under the present system of 

rules. But it is increasingly common for complex federal cases to involve more than 

one state or District. What if attorney conduct problems involve multiple venues? 

Given the fragmented state of standards between the 51 states and 94 Districts, 

described above, difficult choice of law problems are inevitable and have, in fact, 

been increasing in practice.7 

Most fortunately, Linda S. Mullenix, the Bernard J. Ward Centennial 

Professor of Law at the University of Texas and a leading authority on federal rules, 

has just completed an authoritative study of this problem, "Multiforum Federal 

Practice: Ethics and Erie."8 During this study, she generously shared research and 

insights with the Reporter. Her research assistant, Mr. Robert W. Musslewhite, 

Harvard Law School '96, was also of the greatest help. Rather than have an inferior 

synopsis repeated here, Professor Mullenix has generously permitted her entire draft 

7These problems have led, in part; to the American Bar Association to adopt a new "choice-of-law" 

rule, Rule 85. See ABA Model Rules of Professional Conduct (1994) 106-107; ABA Report No. 114 

(August 11, 1993). As will be seen in Professor Mullenix's analysis in Appendix IV, "Multiforum Federal 

Practice: Ethics and Erie" tltere are potential Erie and Supremacy Oause issues present, as well. For a 

good example of Supremacy Oause problems, see the equally divided court affirmance of the First 

Circuit in United States v. Klubock. 832 F.2d 664 (1987), (sustaining the validity of a local rule of the 

District of Massachusetts) and the dissent by Breyer, C.J., id., 671-675. Now see Whitehouse v. U.S. 

District Court of Rhode Island. F3d._ (1st. Cir, 1995) 63 LW 2680 (May 9, 1995), sustaining the 

validity of a similar local rule of the District of Rhode Island as applied to Federal prosecutors. Id. 

2680-2681. a. Bavlson v. Penns_ylvania Supreme Court Disciplina,:y Board, 975 F2d 102 (2d Cii-., 1992) 

striking down a similar local rule. For Erie problems, see Appendix IV, 23-53. Some federal courts have 

held that Erie does not require adherence to state standards in federal proceedings, or does not apply to 

detennine applicable federal ethical standards. Id., 24-25. See Unified Sewage Agency v. Jelco. 646 

F.2d 1339 (9th Or. 1980); Cord v. Smith, 338 F.2d 516,524 (9th Cir. 1964); 730 F.2d 418 (9th Or. 1966); 

Courts of Suffolk v. Long Island Lighting Co .. 710 F. Supp. 1407, 1413-1414 (E.D.N.Y. 1989). See Stephen 

Birbank "State Ethical Codes of Federal Practice: Emerging Conflicts and Suggestions for Reform," 29 

Fordham L.J. 969 (1992). 

8nus study was presented as part of the Georgetown University Conference on "Legal Etlrics Into the 

Twenty-First Century," March 17, 1995, and will appear shortly in the Georgetown Journal of Legal 

Ethics. Appendix rv is the text of the study as of March 17, 1995. The Charts cited were developed in 

cooperation with the Reporter and Iris research assistants. Updated versions are provided as 

Appendices I, II, and [I[ attached. 
Page 26 

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study to be attached as Appendix IV to this Report, with the consent of the 

Georgetown Tournal of Legal Ethics, where it will shortly appear. 

Professor Mullenix's study leaves no doubt but that the troubling issues 

described above in this Report are greatly exacerbated in multiforum practice. The 

recent case of Georgine v. Amchem Products, Inc., 157 F.R.D. 246 (E.D. Pa, 1994) is but 

one example of the difficulties involved, and Professor Mullenix provides many 

more.9 She concludes: 

Scanning the array of possible professional ethical standards in federal 

court, one is reminded of the old adage that no person can serve two 

masters. Or tl1ree, or four, for that matter. And in tllose federal 

outposts where the local district court has not adopted standards of 

professional responsibility, federal practitioners should not be 

subjected, after the fact, to a federal judge's transcendental "common 

sense" notion of ethics, as "justice requires." Federal etllics are not and 

should not be a brooding omnipresence in tile sky. 

Clearly, federal practitioners need one - and only one - defined code 

of professional ethics. This code should apply in all federal courts. In 

the federal system, at least, ethical standards should not vary according 

to what local district or circuit a federal lawyer practices. A uniform 

code of conduct will eliminate all problems relating to interdistrict and 

intercircuit conflicts. A federally-adopted universal code also would 

supersede conflicting state codes. 

- Whatever may be the virtues of allowing tile ninety-four federal 

district courts to promulgate local rules of federal procedure according 

to local practice, tile notion of competing local rules of federal ethics is 

noiliing short of sheer madness. The need for a truly universal set of 

federal rules is apparent, and should be promulgated as soon as 

possible.JO 

In tile concluding Section VII of this Report, Professor Mullenix's 

recommendation for a uniform code of conduct in federal courts will be examined, 

as will her forcefully argued interim recommendations: 1) adopting "a uniform 

conflicts provision that would assist federal judges in resolving which jurisdiction's 

conduct rules govern an alleged disciplinary violation"; 2) developing "a means of 

characterizing ethical duties that are separable from and collateral to tile merits of a 

legal dispute and tllose tllat are inextricably bound to substantive legal claims"; and 

3) separating the federal judiciary's "attorney discipline function from its 

adjudicatory role," as distinguished in Metromedia Co. v. Fugazy, 1988 WL 140773 at 

9See Appendix IV, pp. 23-53. 

1019.., at 61. 
Page 27 

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*4 (S.D.N.Y. 1988).11 Even if one did not accept all of Professor Mullenix's 

recom1nendations, and they are most cogently argued, the basic findings of her study 

are undeniable. Multiforum federal practice, challenging under ideal conditions, 

has been made increasingly complex, wasteful, and problematic by the disarray 

among federal local rules and state ethical standards. The Reporter is most grateful 

for her assistance. 

E. PROMULGATION BY FEDERAL AGENCIES OF THEIR OWN 

ATTORNEY CONDUCT RULES 

Conflicts between different state standards, between different District and 

Circuit local rules, and between federal and state standards within the same state are 

problematic enough. But now frustration with conflicting rules has led key federal 

agencies to adopt their own rules of professional conduct. As the Deputy Attorney 

General, Jamie S. Gorelick, observed: 

"[T]he Department does not assert that its attorneys are exempt from 

state ethics rules. To the contrary, the department directs that its 

attorneys should conduct themselves at all times in conformity with 

the highest standards of ethical conduct. Unfortunately, there are 50 

different sets o_f state ethics rules, subjecting department attorneys to 

conflicting requirements. "12 

These agency rules make life more bearable for the government agencies, but 

they increase the burden on the practicing lawyer-and may well lead to serious 

Supremacy Clause and separation of powers litigation.13 When a practitioner faces a 

government lawyer in a federal proceeding, there may be three arguably relevant 

sets of rules - the state standard; the federal court local rule; and the agency rule -

and they may all conflict. Examples of federal agencies adopting their own attorney 

conduct rules include the Department of Justice, the Securities and Exdlange 

Commission, the Patent and Trademark Office, the Immigration and Naturalization 

Service, the Internal Revenue Service, the Bureau of Alcohol, Tobacco, and 

ll5ee id., 60. The last recommendation would create "federal disciplinary comrrrittees within the 

federal districts or circuits." Professor Mullenix observes that this "will permit the development of 

expertise in professional re,-ponsibility issues at the federal level, similar to the kind of expertise that 

dedicated state bar grievance committees accomplish through the existence of institutionalized, 

independent bar grievance offices." Id., at 60. 

12Washington Post. May 21, 1995, Co 7, 1995 WL 2094845. 

13For a vision of the inherent Separation of Power and Supremacy Clause conflicts, see Whitehouse v. 

U.S. District Court of Rhode Island. supra at note 7, 63 LW2680; see United States v. Klubock. supra at 

note 7, 671-675 (Breyer, C.J. disserting); United States v. Colorado Supreme Court. 871 Supp 1328 (D. 

Colo. 1994); and United States v. Ferrara. 847 F. Supp. 964 (D.D.C. 1993), all discussed below. These 

issues were nearly reached in United States v. Ferrara. _F.3d. ~ (May 19. 1995) 1995 WL 301679 

(D.C. Cir.), which was decided on jurisdictional grounds and is discussed below. 
Page 28 

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Firearms, the Federal Deposit Insurance Corporation, and the Interstate Commerce 

Commission. 14 

The usual form taken by the "agency rules" is to condition practice before the 

agency on observing standards that the agency promulgates.15 This often takes the 

form of a duty of disclosure which exceeds relevant state standards or federal local 

rules, and can actually conflict directly with client confidentiality provisions in these 

other standards and rules. For example, the specialist practitioner before the Patent 

and Trademark Office, the Immigration and Naturalization Service, or the Security 

of Exchange Commission, can face an agonizing choice.16 Should the practitioner 

risk suspension from lucrative agency work, or risk disciplinary censure or 

malpractice liability under the competing state or local rule standards? Meanwhile 

the agency can argue that it does not cause any direct conflict with competing 

standards. Nothing it does prevents an attorney from following such standards. 

The attorney simply cannot practice before the agency. 

145ee Department of Justice "Communication with Represented Persons: Commentary to 28 CF.R. 71" 

(June, 1993), discussed at length above; "Security and Exchange Commission - Canons of Ethics," 17 

C.F.R. § 200.50-§ 200.72; Patent and Trademark Office "Code of Professional Responsibility," 37 C.F.R. 

10.20-10.112; Immigration and Naturalization Service Regulations, .8 C.F.R. § 292.3; Internal Revenue 

Service "Rules Applicable to Disciplinary Proceedings," 31 C.F.R. (A) 10.50-10.59; Bureau of Alcohol, 

Tobacco and Firearms, "Duties and Restrictions Relating to Practice," 31 C.F.R. (A)§ 8.31-8.42; Federal 

Deposit Insurance Corporation, ''Rules of Practice Before the FDIC and Standards of Conduct," 12 CF.R. 

§ 308.108-308.109; and Interstate Commerce Commission, "Canons of Ethics," 49 C.F.R. § 1103.10-

1103.34. For some of the context behind this agency rule making, see A.A. Somers, ''The Emerging 

Responsibility of the Securities Lawyer," (1974) Fed. Sec. L. Rep. & 72.631; Arthur Best, "Shortcomings 

of Administrative Agency Lawyer Discipline," 31 Emory L.I. 535 (1982); and Robert G. Heiserman and 

Linda K. Pacun, ''Professional Responsibility in Immigration Practice, and Government Service," 22 San 

Di~o L. Rev. 971, 980-86 (1985); "Comment, SEC Disciplinary Proceedings Against Attorneys Under 

Rule 2 (p)," 75 Mich. L. Rev. 1270 (1981). See also In re Carter and Johnson, 1981 Fed. Sec. L. Rep. 

§ 82.847 (SEC 1981 ). 

Even some state administrative agencies have tried to regulate lawyer conduct. For example, 

by letter of January 6, 1988, the Department of Environmental Quality Engineering of the 

Commonwealth of Massachusetts ("DEQE") "expressed the view that both the governing statute and 

the rules of professional responsibility require lawyers to notify the DEQE of toxic waste spills when 

their clients do not." Andrew L. Kaufman, Problems in Professional Responsibility (3d ed., 1989), 303. 

15The Internal Revenue Service provisions are typical: 

§ 10.50 Authority to disbar or suspend. 

Pursuant to 31 U.S.C 330(b), the Secretary of the Treasury after notice and an 

opportunity for a proceeding, may suspend or ctisbar any practitioner from practice 

before the Internal Revenue Service. The Secretary may take such action against any 

practitioner who is shown to be incompetent or ctisreputable, who refuses to comply 

with any regulation in this part, or who, with intent to defraud, willfully and 

knowingly misleads or threatens a client or prospective client. 31 C.F.R.(A)gl0.50. 

[59 FR 31528, June 20, 1994]. 

l65ee the articles and cases cited in note 14, supra. For two extensive studies, yet to be published, see 

Anita L. Mecklejohn '1f a Little Positivism is Good, ls More Better? Administrative Agency Regulation 

of Lawyer Conduct" (1995 Study of the Patent and Trademark "Code of Professional Responsibility") 

and Adam C Wit, "Civil Disobedience of the Immigration Attorney" (1995 Study of Immigration and 

Naturalization regulations). Copies available, subject to authors' permission, from the Reporter. 
Page 29 

-27-

There has been much recent controversy about the Department of Justice's 

foray into rule making governing attorney conduct.17 To be fair to the Department, 

however, the rules promulgated in 28 C.F.R. 77 (1994) relating to represented parties 

are actually quite narrow and limited compared to other federal agency rules, which 

often incorporate entire codes of attorney conduct. On the other hand, the 

Department is particularly prominent as a professional symbol. In addition, the 

new Department rules are different in one key respect from the usual agency rules. 

Most federal agency rules do not purport to "override" state standards or federal 

local rules, or to shield agency lawyers from such rules or standards. The new 

Department of Justice rules, on the other hand, do just that. For this reason, it is 

necessary to examine those Department of Justice initiatives in more detail. 

There has long been professional concern about a lawyer contacting a party 

known to be represented by another lawyer, without that other lawyer's consent. 

The ABA Code of 1969 stated: 

"During the course of his representation of a client a lawyer shall not ... 

[c]ommunicate or cause another to communicate on the subject of the 

representation with a party he knows to be represented by a lawyer in 

that matter unless he has the prior consent of the lawyer representing 

such party or is authorized by law to do so." ABA Code, DR-7-

104(A)(l). 

The ABA Model Rules of 1983 contain a very similar provision in Rule 4.2: 

"In representing a client, a lawyer shall not communicate about the 

subject of the representation with a party the lawyer knows to be 

represented by another lawyer in the matter, unless the lawyer has the 

consent of the other lawyer or is authorized by law to do so." 

These rules are "designed both to protect the represented individual from 

overreaching opposing counsel and to ensure that the adverse party's attorney can 

function properly." United States v. Lopez, 765 F. Supp. 1433, 1449 (N.D. Cal. 1991), 

vacated and remanded, 989 F.2d 1032 (9th Cir. 1993), amended and superseded, 4 F.3d 

1455 (9th Cir. 1993). 

In 1989, then Attorney-General Richard Thornburgh issued the "Thornburgh 

Memorandum," asserting the Justice Department policy on attorneys' contacts with 

represented clients. The Justice Department's version of the contact rule, however, 

was significantly different from those standards adopted by most District and Circuit 

17For a few typical examples, see Saml)el Dash, "An Alarming Assertion of Power," 78 Judicature 

(vol. 3), 137 (Dec. 1994); Jamie S. Gorelick and Geoffrey M. Kineberg, "A Sensible Solution," 78 

Judicature (vol. 3), 136 (Dec. 1994); Gerald H. Goldstein, "Government Lawyers Above the Law?" 

Washington Post A19 (May 2, 1995), 1995 WL 2091431; Answer: Jamie S. Gorelick 'Within the Law", 

Washington Post Co. 7 (May 21, 1995), 1995 WL 2091431; and William G. Otis, ''Prosecutors on Trial," 

Washington Post, Op.Ed., (May 30, 1995). 
Page 30 

-28-

Courts. The report stated that "an attorney for the government is authorized to 

direct and supervise the use of undercover law enforcement agents ... regardless of 

whether the person is known to be represented by counsel." Memorandum of 

Attorney General to All Justice Department Litigators, June 8, 1989, page 5 (emphasis 

added). 

The rules were issued largely due to the Justice Department's increased role _ 

in law enforcement investigations. According to Deputy Attorney General of the 

United States, Jamie Gorelick, these new standards are necessary because 

[t]here con.tinue to be many different versions of the anti-contact rule 

itself, and there are even greater differences in how these rules have 

been interpreted. Without a uniform federal rule, prosecutors would 

inevitably reduce their participation in the investigative phase of law 

enforcement, leading to a loss in the effectiveness of criminal law 

enforcement and a decline in the level of compliance with legal and 

ethical standards on the part of police and federal agents. 

Gorelick and Geoffrey Klineberg, "Regulating Contacts with Represented Persons: A 

Sensible Solution" 78 Judicature 136, 142-3 (1994). 

In applying the rules to the law enforcement context, courts have generally 

concluded that prosecutors are not exempt from coverage under a court's local rule 

governing contact with represented parties, but some courts have limited the rule's 

applicability in the pre-indictment investigative context. See e.g. United States v. 

Ryans, 903 F.2d 731, 739 (1990 10th Cir.)("We are not convinced that the language of 

the rule calls for its application to the investigative phase of law enforcement"), cert. 

denied, 498 U.S. 855, 111 S.Ct. 152 (1990); United States v. Sutton, 801 F.2d 1346,1365-

66 (D.C. Cir. 1986)(DR 7-104 "was never meant to apply to [pre-indictment, noncustodial] situations such as this one"); United States v. Vasquez, 675 F.2d 16, 17 (2d 

Cir. 1982)(no violation of DR 7-104 where government informant taped 

conversation with represented individual in absence of counsel prior to 

indictment); Cf. United States v. Hammad, 858 F.2d 834,839 (2d Cir. 1988)(Prosecutor 

violated DR 7-104 in pre-indictment phase when an informant "elicited admissions 

from a represented suspect;" however, court urged restraint in applying rule during 

this phase); District of Columbia Rules of Professional Conduct Rule 4.2 cmt. 'l[ 8 

(prosecutors are not subject to contact rules). For most courts, however, 

prosecutorial contact with represented parties that occurs during the postindictment phase would constitute a violation of the conduct rule. See, g,_g. Lopez 

765 F. Supp. 1433 (dismissing indictment where federal prosecutor spoke directly to 

represented defendant who was under indictment) vacated and remanded, 989 F.2d 

1032 (1993), amended and superseded, 4 F.3d 1455 (1993); United States v. Lemonakis 

485 F.2d 941,955 (2d Cir. 1973). 

In contrast, the Justice Department position taken in the Thornburgh 

memorandum was that 
I 

-29-

the 'authorized by Jaw' exemption in DR 7-104 applies to all 

communications with represented individuals by Department 

attorneys ... [thus] mak[ing] clear. .. that the purported exemption exists 

after indictment. 

Page 31 

Lopez at 1446. (citing the Department's brief). Consequently, in response to the 

Thornburgh memorandum, the ABA House of Delegates unanimously adopted a 

resolution opposing "any attempt by the Department of Justice unilaterally to 

exempt its lawyers from the professional conduct rules that apply to all lawyers 

under applicable rules of the jurisdiction in which they practice" Report of February 

12, 1990. The courts were equally hostile. According to Judge Patel of the Northern 

District of California, if one accepts the Department's controversial claims, 

it is not clear that there would be any conduct the prosecutor could not 

undertake, as long as it was pursuant to his or her responsibility to 

investigate and prosecute crimes. DOJ attorneys would be exempt from 

rules adopted by federal courts to govern ethical conduct of attorneys 

practicing before them. This is, quite simply, an unacceptable result. 

Lopez, 765 F. Supp. at 1448 (prosecutor was not exempt from state bar conduct rules 

adopted in District Court's local rules despite reliance on the Department's policy in 

Thornburgh Memorandum). Many courts also rejected the Department's legal 

argument that the Thornburgh Memorandum fit the "authoriz[ation] un_der the 

law" exception in the Model Rules because "none expressly or impliedly authorize 

government attorneys either to disregard court-adopted rules or to violate ethical 

rules regarding contact with represented individuals," Lopez at 1447. In another 

case, the court rejected the Thornburgh Memorandum because it was "an 

unpromulgated policy memorandum that did not rise to the level of 'federal law."' 

United States v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993)). The Conference of Chief 

Judges agreed that for a substantive regulation to have force and effect of law the 

regulation had to be rooted in a specific grant of power. Additionally, they claim 

that a statutory scheme must expressly permit the Justice Department contacts with 

represented persons. Report of the Special Committee of the Conference of Chief 

Justices, March 31, 1994. 

The Justice Department later modified its original position and on August 4, 

1994, issued final regulations in the Federal Register. 59 Fed. Reg. 39911. According 

to the Deputy Attorney General, these regulations are more "narrowly focused on 

law enforcement activity" rather than being a blanket exception for all Justice 

Department lawyers, and are more in line with the principles behind Rule 4.2. 

Gorelick and Klineberg, supra, at 143. Despite this contention, the Department 

maintains that it at all times "has the authority to exempt its attorneys from the 

application of DR 7-104 and Model Rule 4.2 and their state counterparts." 59 Fed. 

Reg. at 39912. Essentially, the Department claims that these regulations supersede 

all state and federal local rules relating to communication with represented parties 

either by acting as "laws" within the meaning of the "authorized by law" exception 

in the Model Rules, by preemption under the supremacy clause, or by a "proper 

exertion of delegated legislative authority." 59 Fed. Reg. 39917. 
Page 32 

-30-

Thus, in the Department's view, even if a federal court did not adopt the 

"authorized by law" exception in its local rules, the Department rules would 

preempt the federal district court local rule. In support, the Department asserts that 

"any local rule inconsistent with a regulation lawfully issued under statutory 

authority must yield to Congress's paramount authority." 59 Fed. Reg. at 39917. 

According to the Department, Congress has delegated this legislative power to the 

Attorney General under 5 U.S.C. § 301 (authorizing the Attorney General to 

prescribe regulations for the Department) and under general statutory provisions 

enabling the Department to prosecute civil and criminal matters in 28 U.S.C. 

§§ 515(a), 516,533,547. 59 Fed. Reg. at 39917. 

Additionally, these new regulations would stay all judicial disciplinary 

proceedings against Justice Department attorneys until the Department conducts its 

own internal hearing. 59 Fed. Reg. 39911. According to the regulations, the Attorney 

General must first find "that a Department attorney has willfully violated these new 

rules ... [before] that attorney be subject to state disciplinary jurisdiction." Id. at 39912. 

Some have questioned the authority of the Attorney General to issue these 

rules, see,~ Samuel Dash, "An Alarming Assertion of PowerL" 78 Judicature 137 

(1994). The Conference of Chief Justices stated that "[w]e are concerned that if the 

Department's position is not reconsidered, there will be a confrontation of 

constitutional proportions." Special Committee of the Conference of Chief Justices, 

March 31, 1994, page 21-23. The state Chief Justices further asserted that "the 

proposed regulation flies in the face of principles of ethics ingrained in state law, it 

violates principles of federalism and separation of powers." Id., 23 . 

In any event, it is practically certain that the Department's initiatives will lead 

to litigation resolving the full extent of the Department's rule making powers under 

constitutional and federal law. See, for example, United States v. Ferrara _F.3d_ 

(May 19, 1995), 1995 WL 301679 (Attempt by Department to enjoin Disciplinary 

Board of New Mexico Supreme Court from investigating Assistant U.S. Attorney 

who was a member of New Mexico bar for violation of New Mexico's represented 

party rule. Resolved against Department on jurisdiction. Department's Supremacy 

Clause argument not reached.) But it is important to remember that this issue goes 

far beyond the Department of Justice's concern with represented parties, and 

includes the rules promulgated by many other federal agencies, set out in part 

above. In addition, the Department of Justice has sought to enjoy other state 

standards as applied to its lawyers. See United States v. Colorado Supreme Court. 

871 F. Supp. 1328 (D. Colo. 1994) (Department exerts Supremacy Clause to dispute 

application of Model Rules 3.3(d) and 3.8(f) to federal prosecutors); United States v. 

Klubock. 832 F. Supp. 664 (1st Cir. 1987) (Department seeks declaratory judgment 

against Board of Bar Overseers of Massachusetts Supreme Judicial Court to 

invalidate SJC Rule 3:08, PF 15 - stating it is "unprofessional" for a "prosecutor to 

subpoena an attorney to a grand jury without prior judicial approval.") This has 

now lead to a split between Circuits. See Whitehouse v. U.S. District Court for the 

District of Rhode Island. _F.3d_ (1st Cir., 1995), supra. (upholding R.I. Local Rule 
-31- Page 33 

3.8(F) as applied to Federal prosecutors). Cf. Baylson v. Penn. Sup. Ct. Disciplinary 

Bd., 975 F.2d 102 (3d. Cir., 1992), (striking down a similar local rule). 

As will be seen, there is now legislation pending in the Senate, Senate Bill 

No. 3, which would give the Department direct legislative authority to establish 

agency rules that supersede state standards.18 It is, however, the Departments 

position that the legislation is superfluous and that the Department already has the 

statutory authority. As the Deputy Attorney General recently stated: [T]he attorney 

general already has the authority to establish uniform rules for Department of 

Justice attorneys engaged in law enforcement functions across the country, the 

provisions of the bill currently pending in the Senate (§ 3) ... simply makes that 

authority explicit."19 

The underlying legal issue is important in addressing ultimate solutions to 

the chaos of federal attorney conduct rules, as will be done in Section VII below. 

One possible long term option would be to promulgate model federal local rules, of 

the kind first articulated by the Committee on Court Administration and Case 

Management in 1978. See Appendix V, attached, with a sample version of the 

model "Federal Rules of Disciplinary Enforcement." Would federal agency rules 

override such model local rules? Local Rules are adopted pursuant to 28 U.S.C. § 

2071 which states, "such rules shall be consistent with Acts of Congress and the -rules 

of practice and procedure prescribed under section 2072 of this title." 28 U.S.C. § 2071 

(1995). Because local rules must be consistent with Acts of Congress, local rules 

which contravene existing federal statutory law would seem· to lack effect. See 28 

U.S.C. 2071. Thus, with proper authority, through an Act of Congress, federal 

agencies could pass valid regulations which supersede local rules governing 

attorney conduct. 

While the Justice Department argues that it possesses the clear requisite 

congressional authority to create regulations governing attorney conduct, it is not 

· such an easy question. The Department claims authority under 5 U.S.C. § 301 and 

Title 28 of the United.States Code. See 5 U.S.C. § 301 (authorizing the attorney 

general to "prescribe regulations for the government of [her] department, and the 

conduct of its employees. The Department also relies on Georgia v. United States, 

411 525,536 (1973). (5 U.S.C. § 301 is ample legislative authority for substantive and 

procedural regulations so long as they do not conflict with the Voting Rights Act.) 

See Jamie S. Gorelick, Justice Department Contacts with Represented Persons: A 

Sensible Solution, 78 Judicature 136 at 5 (Nov. - Dec. 1994). 

The exact language of 5 U.S.C. § 301, however, does not authorize 

government attorneys to disregard federal court local rules, nor is tllere anything 

more specific in the general enabling statutes under Title 28. See 28 U.S.C. §§ 515(a), 

516, 533, and 547. A good example is Chrysler Corporation v. Brown, 441 U.S. 281 

(1978). Brown arose in the context of the Trade Secrets Act. Id. 308-310. The 

l85ee the full discussion of Senate Bill No. 3 at Section VI, infra. 

19See Washington Post May 21, 1995, Co. 1, 1995 WL 2094845. 
Page 34 

-32-

Secretary of Labor argued _that 5 U.S.C. § 301 permitted him to issue a regulation 

requiring corporations to disclose trade secrets under the "authorized by law" 

exception of the Trade Secrets Act. Id. The court disagreed and held § 301 was a 

housekeeping statute: "It is indeed a housekeeping statute, authorizing what the 

APA terms 'rules of agency organization, procedure or practice' as opposed to 

'substantive rule."' Id. at 310. The court based its holding on the antecedent history 

of § 301 where statutes were enacted to give department heads of early government 

departments authority to govern internal governmental affairs. Id. at 309. Thus, 

the Secretary lacked the authority to pass regulations limiting the scope of the Trade 

Secrets Act. Id. While Brown arose in the context of trade secrets, its principles may 

be transferable to attempts to regulate attorney conduct. See id. at 308-310. Dicta in 

prior cases have supported this view. See United States v. Ferrara, 847 F. Supp. 964, 

969 (Dist. of Columbia 1993) (without clear and manifest purpose of Congress, DOJ 

policy [Thornburgh Memoranda] cannot supercede state codes of ethics); Lopez, 765 

F. Supp. at 1448 ("DOJ attorneys would be exempt from rules adopted by federal 

courts to govern ethical conduct of attorneys practicing before them. This is quite 

simply, an unacceptable result. Local Rules are clearly meant to apply to all 

attorneys practicing in federal court, regardless of the client they represent."); In Re 

Tohn Doe Esquire, 801 F. Supp. 478,486 (Dist. N. Mex. 1992) (citing Lopez). 

On the other hand, the Department will rely on Georgia v. United States, 411 

U.S. 526 (1973) (upholding Attorney General's administrative regulations under 5 

U.S.C. § 301 to effectuate § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, although the 

Voting Rights Act itself did not authorize such regulations). But see United States 

v. Lopez, supra, 765 F. Supp. at 1447 (Title 28 fails to grant adequate authority to 

Attorney General to promulgate regulation of attorney conduct.) If the 

Department's statutory case prevails, it will argue that the Congressional grants of 

authority give its internal regulation the force and effect of federal law. See 

Gorelick, supra, 78 Judicature 136, at 137; 59 Fed. Reg. 39916. It will then argue that 

these internal rules would, in tum, supercede any conflicting federal local rules 

adopted under 28 U.S.C. § 2071 because the latter must be "consistent" with "acts of 

Congress." 

If this is the outcome of test litigation, the future solution to Federal attorney 

conduct standards may not lie in the kind of model local rules proposed by the 

Committee of Court Administration and Case Management in 1978, as typified by 

the Model Federal Rules of Disciplinary Enforcement. Again, this is not just because 

of the Department of Justice's specific initiatives regarding represented parties, but 

also because of the many other federal agency rules that purport to govern attorney 

conduct. If agency rules can "trump" federal local rules, then more attention must 

be paid to long term solutions in Congress or through the Enabling Act process, 28 

U.S.C. §§ 2071-2077, with its "supercession" clause, 28 U.S.C. § 2072. 
-33-

VI. SOME RECENT REACTIONS: RESOLUTION XII OF THE 

CONFERENCE OF CffiEF JUSTICES(AUGUST 4, 1994); 

THE RESOLUTION OF THE HOUSE OF DELEGATES 

OF THE AMERICAN BAR ASSOCIATION (1995); 

AND CONGRESSIONAL INITIATIVES, 

INCLUDING SENATE BILL NO. 3 (1995) 

Page 35 

Not surprisingly, the problems described above have begun to attract the 

attention of Congress, as well as leading professional and public interest groups. 

Three of these reactions have been selected for discussion because they represent 

fundamental concern. These must be addressed by any long term solution. 

A. RESOLUTION XII OF THE CONFERENCE OF 

CHIEF JUSTICES (AUGUST 4, 1994) 

The Conference of Chief Justices represents the interests of the state courts.20 

Traditionally, the state supreme courts have regulated the American legal 

profession, usually through the appointment of boards of bar overseers and bar 

counsel.21 Resolution XII, adopted unanimously by the 51 Chief Justices at their last 

Conference on August 4, 1994, reasserts that traditional role. The Resolution also 

specifically addresses the new Department of Justice rule on represented parties 

discussed in Section V. E., above. The Resolution asserts that, "[E]ach state, under 

the authority of its highest court, is exclusively responsible for regulating the 

professional conduct of the members of its bar and establishing appropriate ethical 

standards and enforcement mechanisms .... "22 Lawyers employed by the Department 

of Justice are required by federal law to "be a member of the bar of a state, territory or 

the District of Columbia," and "[e]very lawyer admitted to practice by a state.supreme 

court, including federal and state government lawyers, must abide by and be 

governed by that court's ethical rules." "As a matter of policy and ethics, as well as 

principles of federalism and separation of powers, the state supreme courts have the 

sole and exclusive responsibility to supervise the practice of law in each 

205ee 'The Chief Justices Find a National Voice," The National Law Journal, October 17, 1994, A 1 at 

A26. 

2l5ee Conference of Grief Justices, "Comment on Proposed Regulation Goventing Contacts by 

Department of justice Attorneys with Represented Persons," Special Committee of the Conference of 

Grief Justices (Chief Justice E. Norman Veasey, Chair), March 31, 1994, 12, quoting Leis v. Flynt. 439 

U.S. 438 (1979). 

"Since the founding of the Republic, the licensing and regulation of lawyers has been 

left exclusively to the States and the District of Columbia within their respective 

jurisdictions. The States prescribe the qualifications for admission to practice and the 

standards of professional conducl" 

Leis v. Flynt. 439 U.S. 438,442 (1979). 

See also Nix v. Whiteside. 475 U.S. 157, 165 (1980) ("a Court must be careful not to ... intrude into the 

state's proper authority to define and apply the standards of professional conduct applicable to those 

it admits to practice in its courts.") Id., 165. 

22Resolution XII, supra at pg. 1. 
Page 36 

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jurisdiction."23 The conclusion is that the Department of Justice's new rule is "(a) 

contrary to ethical considerations; (b) violates principles of federalism and 

separation of powers; and (c) is promulgated without appropriate authority."24 

As discussed at length above (Section V.E.), the Department of Justice's 

authority to issue the new rules in 28 C.F.R. 77 will be tested by litigation, or 

bolstered by additional congressional action, or both. Resolution XII is, however, 

very significant in a broader context. The Resolution, and the Conference of Chief 

Justices' "Comment" of March 31, 1994, forcefully argue the "state standard" 

approach to the underlying problem of attorney conduct in federal courts.25 

It has already been seen that a majority of federal District courts have local 

rules which explicitly adopt the state standards of the state in which the District is 

located. See Section III A., supra. A number of Circuits also look to state standards, 

often the standards "adopted by the highest court of any state in which the attorney 

is admitted to practice." See Local Rules of the Tenth Circuit, Add. III, Sec. 2.3, and 

Local Rules of the Eleventh Circuit, Add. VIII, Rule lA; Appendix III, page 3, 

attached. This not only resolves any conflict between the state and the District, but 

also often permits use of the state's disciplinary and enforcement system in many 

cases. A violation of a federal standard will usually be found to be a violation of a 

state standard.26 

Of course, this system has not worked perfectly. As seen above, some federal 

courts have incorporated ABA Models into interpreting local rules, even when the 

local rule refers only to the state standards. See Section V.B., supra. Occasionally, 

state enforcement systems have failed to punish egregious condu~t, even in Districts 

incorporating state standards. See In the Matter of Rufus Cook,_ F.3d _ (1995), 

1995 WL 73098 (7th Cir.) But the advantages of a "state standards" system are strong. 

Indeed, the last effort by a Judicial Conference Committee to solve the underlying 

problems, the "Federal Rules of Disciplinary Enforcement" promulgated by the 

Committee at Court Administration and Case Management in 1978, adopted a "state 

standards" approach. See Appendix V, attached. Resolution XII symbolizes this 

approach. 

23ld., at pg. 2. 

24Jd. at pg. 3. 

25See Conference of Chief Justices "Comment on Proposed Regulation Governing Contacts by Department 

of Justice Attorneys with Represented Persons, 28 C.F.R. Part. 77," March 31, 1994, Special Committee of 

the Conference of Chief Justices on the Proposed Regulation (Chief Justice Norman E. Veasey, 

Delaware, Chair). 

26 As will be seen in Section Vil, supra, the lliinois State Bar Association has proposed a "Federal Rule 

Respecting Discipline of Attorneys Practicing in Federal District Courts" that incorporates these "state 

standard" principles. The nlinois State Bar Association has formally asked us to consider its proposal. 

Letter of February 14, 1995, and it is set out as Appendix VJ, attached. 
B. 

-35-

RESOLUTION OF THE HOUSE OF DELEGATES OF 

THE AMERICAN BAR ASSOCIATION (1995) 

Page 37 

While the American Bar Association has generally supported the view of the 

Conference of Chief Justices as to the new Department of Justice rules, the ABA has 

also pushed for the use of uniform national standards for the regulation of 

attorneys.27 At the Association's Mid Year Meeting last February, 1995, the House of 

Delegates adopted the following Resolution: 

BE IT RESOLVED, THAT the American Bar Association supports 

efforts to lower barriers to practice before U.S. District Courts based on 

state bar membership by eliminating state bar membership 

requirements in cases in U.S. District Courts, through amendment of 

the Federal Rules of Civil and Criminal Procedure to prohibit such 

local rules. 

The Resolution was accompanied by a Report from Donna A. Killoughey, Chair, 

Section of Law Practice Management, dated November 21, 1994. It argued that 

required state bar membership is an "exclusionary and anti-competitive practice" 

that "inhibits competition, restricts lawyers from representing clients without 

incurring the substantial cost of local counsel and drives up costs to clients." Id., 

page 1. The Association has officially written to this Committee, requesting that the 

Committee consider this Resolution. Letter of April 3, 1995. 

The above ABA Resolution is consistent with the Associations long efforts, 

beginning with the ABA Model Canons of Professional Ethics in 1908, to establish 

national bar regulation and to reduce regional barriers to practice. The Association's 

primary strategy, represented by the ABA Model Code of 1969 and the ABA Model 

Rules of 1983, has been to persuade states to adopt a uniform system of attorney 

conduct rules by following an ABA model. These efforts, as described above in 

Section III, have met with mixed success, but other ABA initiatives, including 

uniform regulation and accreditaticm of law schools, have strongly encouraged 

national standards. 

One fundamental option, to be discussed in Section VII, would be the 

adoption of a national federal rule governing attorney conduct in all federal courts. 

This rule would, most likely, incorporate by reference the ABA Model Rules or a 

federal "version" of the ABA Model Rules. Without such a "national" result, it is 

hard to see how the above ABA Resolution could be effectively implemented. For 

example, if a lawyer need not be a member·of the bar of the state in which a District 

is located, how could that District systematically refer discipline problems to the state 

bar agencies? Perhaps a rule could be adopted which refers to the standards of the 

27The Department of Justice rules on represented parties in 28 CF.R. 77 are not consistent with the ABA 

Model Code or Model Rules. See Section V {E), supra. On Feb. 12, 1990, the ABA House of Delegates 

unanimously adopted a resolution opposing "any attempt by the Department of Justice unilaterally to 

exempt its lawyers from the professional conduct rules that apply to all lawyers under applicable rules 

of the jurisdictions in which they practice." See also ABA Discussion Draft on Rule 4.2, February 10, 

1995, for submission to the House of Delegates in Chicago in August, 1995. 
Page 38 

-36-

attorney's "state of bar admission," but that could certainly be problematic in the 

case of an attorney with multiple state bar admissions. In any event, all the 

problems described in Section VD., supra, would be exacerbated. The 1978 model 

"Federal Rules of Disciplinary Enforcement" focused on a close relationship 

between state standards and federal rules. See Appendix V, attached. The American 

Bar Association, for the reasons inherent in its 1995 resolution, would probably 

prefer to see a national standard for all federal courts, particularly if it followed the 

ABA Model Rules. This would certainly reduce the need for state bar membership 

to practice in a particular District, and would probably hasten the day when all states 

adopt the ABA Model Rules. 

C. RECENT CONGRESSIONAL INITIATIVES, INCLUDING 

SENATE BILL NO. 3 (1995) 

Given the extent and iinportance of the problems described above, it is not 

surprising that Congress has begun to express concern. Currently pending is Senate 

Bill No. 3, which contains the following provision: 

Sec. 502. Conduct of Federal Prosecutors 

Notwithstanding the ethical rules or the rules of the court of any State, 

Federal rules of conduct adopted by the Attorney General shall govern 

the conduct of prosecutions in the courts of the United States. 

This provision is obviously intended to resolve the controversy over the 

Department of Justice's new represented party rules, discussed at length at V. E., 

above. The bill itself has caused controversy, and its future is uncertain.28 More 

2&fhe bill was attacked by Gerald H. Goldstein, the President of The National Association of 

Criminal Defense Lawyers. See Gerald H. Goldstein, "Government Lawyers: Above the Law?,'" May 2, 

1995 WashinITTon Post, page A19. Goldstein observed: 

While the new Republican majority publicly promises to whittle down the 

federal government and shift power back to the states, fine print in the new crime bill 

pending in the Senate(§ 3) would do the opposite - with a vengeance. 

Under the guise of "reforming " federal criminal procedure, the bill's section 502 

would exempt federal prosecutors from any and all state ethics rules governing lawyers· 

conduct. Instead of following the rules all other lawyers must obey, attorneys for the 

federal government would be subject only to "rules of conduct adopted by the Attorney 

General." Nothing more. 

This astounding proposal to remove all state controls governing federal 

prosecutors and consolidate more power in the Justice Department should be stopped in 

its tracks. As a society committed to due process, we should waive the government's 

sovereign immunity in instances of conscious disregard of citizens' fundamental rights. 

Then financial penalties would help to enforce the rules of court and deter unethical 

behavior. Id. A19 

In return, Goldstein's arguments were challenged by the Deputy Attorney General, Jamie S. Gorelick, 

"Within the Law,'' May 21, 1995 WashinITTon Post, Cl, and by William G. Otis, former Special Counsel 

to President Bush, "Prosecutors on Trial,"' May 30, 1990, WashinITTon Post. op. ed. The latter articles 

have been discussed at Section V. E., above. In particular, Gorelick makes the important point that the 

Department of Justice believes that the bill merely makes "explicit" powers the Department already 

enjoys. 
Page 39 

-37-

importantly, it is unclear what its effect would actually be on federal local rules 

adopted pursuant to 28 U.S.C. § 2071. Senate Bill No. 3 refers only to "the ethical 

rules or the rules of the court of any State." Its purpose is apparently to shield 

federal prosecutors from state bar disciplinary proceedings, not to derogate from the 

authority of the federal courts. 

Senate Bill No. 3 follows on other recent Congressional initiatives. One 

example is House of Representatives No. 988 (104th Congress, 1st Session, Feb. 16, 

1995) the "Attorney Accountability Act" which attempts to strengthen Rule 11 of the 

Federal Rules of Civil Procedure. See Carl Tobias "Common Sense and Other Legal 

Reforms," 48 Vanderbilt Law Review 699, 721-737 (1995). Of course, Rule 11 is not 

involved directly in problems of federal local rules and state standards, but it does 

regulate attorney conduct and would supercede any conflicting local rules, including 

those incorporating relevant state standards. See Judith A. McMorrow's excellent 

article "Rule 11 and Federalizing Lawyer Ethics," 1991 Brigham Young University 

Law Review 959 (1991) and Carl Tobias' fine analysis, "The 1993 Revision of Federal 

Rule 11," to Indiana Law Review 171 (1994). 

Of greater concern, however, was an attempt in 1993 to introduce a new "Rules of 

Professional Conduct for Lawyers in Federal Practice." See House of Representatives 

No. 688 (103d Congress, 1st Session, January 27, 1993). This bill's Section 124 

introduced new duties for "lawyers in their representation of clients in relation to 

proceedings and potential proceedings" in the Federal Courts. These duties would 

have been in direct conflict with parts of the ABA Model Code, the ABA Model 

Rules, many sets of state standards,' and many existing federal local rules. Section 

124 included: 1) a duty "to elicit from the client a materially complete account of the 

alleged criminal activities or civil wrong if the client acknowledges involvement in 

the alleged activity or wrong;" 2) a broad discretionary power for attorneys to 

disclose such information to prevent "crimes and other unlawful act," and 3) a 

mandatory duty to disclose such information to the extent necessary to prevent "(1) 

the commission of a crime involving the use or threatened use of force against 

another, or a substantial risk of death or serious bodily injury to another; or (2) the 

commission of a crime of sexual assault or child molestation." H.R. 688, Sec. 124, 

Rule 5.29 

The point here is not to debate the merits of any of these Congressional 

initiatives. Certainly, the current disarray and the problematic application of rules 

governing attorney conduct in the federal courts should legitimately worry 

Congress. But, so far, individual Congressional initiatives have addressed 

symptoms of the underlying problems, rather than the problem themselves. The 

issues described at length above, and dramatically raised by Resolution XIl of the 

Conferences of Chief Justices and by the 1995 Resolution of The House of Delegates 

290ne Senate version of 1993 H.R. 688 requested that the Judicial Conference "review and make 

recommendations" and report to Congress "regarding the advisability of creating Federal Rules of 

Professional Conduct for Lawye_rs in Federal cases involving sexual misconduct .... " Senate No. 11 (103d 

Congress, 1st Session, November 19, 1993, Sec. 3711). This bill was not passed, but a new bill, Senate No. 

694 "Sexual Violence Prevention and Victims Act of 1995" (104th Congress, 1995) has now been 

introduced with language similar to the old 1993 H.R. 688, above. 
Page40 

-38-

of the American Bar Association, can only be answered by examining the entire 

system of federal local rules governing attorney conduct. It is necessary to make 

some fundamental choices. Those choices will be discussed next. 

VII. CONCLUSION: PRACTICAL CHOICES 

This Report describes a genuine problem, and a growing problem. While 

there are passionate disagreements about the solution, no one really defends the 

status quo.30 For this Committee, and the Judicial Conference, there are four 

fundamental options: 1) to develop a uniform rule adopting a "national standard" 

for attorney conduct in all federal courts; 2) to develop a uniform rule adopting 

relevant "state standards" to govern attorney conduct in all federal courts; 3) to 

promulgate model local rules to govern attorney conduct - similar to the model 

local rules in the Federal Rules of Disciplinary Enforcement of 1978; or 4) to take no 

action. The Judicial Conference might also wish to follow Professor Mullenix's 

interim suggestions by 1) promulgating a uniform conflicts rule, 2) promulgating 

standards to distinguish core and collateral ethical issues and 3) promulgating rules 

that distinguish between dispute resolution and disciplinary functions. See 

Appendix IV, pp. 55-60. 

A. A "NATIONAL STANDARD" FOR FEDERAL COURTS 

[Option 1] 

The "cleanest" theoretical solution would be to adopt a single set of rules 

governing attorney conduct in all federal courts. This could be done by special act of 

Congress, as envisioned by Professor Zacharias,31 or through the existing Rules 

Enabling Act procedures, 28 U.S.C. §§ 2071-2077. Given the importance and 

longterm significance of the change, the extended public hearing and deliberation 

built into the Rules Enabling Act process would seem particularly appropriate. 

As a practical matter, this solution would probably take one of two forms. 

One form would be to add a short rule to the uniform federal rules that simply 

incorporated the ABA Model Rules "as amended from time to time by the 

American Bar Association, except as otherwise provided by specific federal rule." 

(This, of course, adopts the language incorporating state standards found in the 

Federal Rules of Discipline of 1978). If it is concluded that this format gives too 

much short term authority to the American Bar Association, a second approach 

could be used. A short rule could be added to the uniform federal rules 

incorporating an Appendix, similar to the "Appendix of Forms" already attached to 

the Federal Rules of Civil Procedure pursuant to Rule 84. This Appendix could 

contain a "federal" version of the ABA Model Rules. The ABA model could be 

adapted to meet Department of Justice concerns and other special needs. Of course, 

there may be other suggestions. 

305ee Fred C. Zacharias, "Federalizing Legal Ethics," 73 Texas Law Review (1994), 335, 338-344; Linda 

S. Mullenix, "Multiforum Federal Practice: Ethics and Erie." 1-27, Appendix IV, attached. 

315ee Fred C. Zacharias, "Federalizing Legal Ethics," note 30, supra, 379-407. 
Page 41 

-39-

There are five basic arguments for this "national" approach. First, it is the 

only approach which eliminates completely - within the federal system - the 

galaxy of problems described above in Sections III, IV, and V. Secondly, if the 

"national" rule is based on the ABA Model Rules, it would be the solution which 

causes the minimum actual change in the current substantive law. This is because 

48 Districts have incorporated state standards that are based on the ABA Model 

Rules, 4 Districts have adopted the ABA Model Rules directly, and 5 Districts refer to 

both state standards and the ABA Model Rules, for a total of 57 Districts. Third, only 

this approach provides the Circuits with a single standard throughout the Circuit. 

Fourth, this approach fits the "national" system of legal education established 

through the American Association of Law Schools and the American Bar 

Association, as represented by the Multistate Professional Responsibility 

Examination. Fifth, and perhaps most controversial, this approach might prod the 

remaining states that have not adopted a version of the ABA Model 'Rules into so 

doing, including California.32 Thus it holds forth the possibility of a single set of 

standards for all attorneys in all courts, making possible the kind of national 

mobility in law practice envisioned by the 1995 Resolution of the ABA House of 

Delegates as described in Section VI, B., above. 

The arguments against this approach are essentially the ones contained in the 

Resolution XII of the Conference of Chief Justices, described above in detail at 

Section VI, A. Regulation of the bar has traditionally been a function of the states. It 

is the states that have organized and financed system of bar examinations, boards of 

bar overseers, bar counsel "prosecutors" and the mechanism for hearing and 

resolving bar discipline cases. Despite the Congressional initiatives described in 

Section VI, C., above, is Congress really ready to establish and fund a parallel federal 

system? Finally, while a majority·of states have adopted an ABA Model Rule 

format, many have made variations in particular rules. It could be argued that the 

vision of a single national standard is an illusion. If so, the best to be hoped for is a 

uniform state standard. 

B. A "STATE STANDARD" FOR FEDERAL COURTS 

[OPTION2] 

This approach would be to adopt a short uniform federal rule that directed 

federal courts to relevant state standards. This could be expressed either in terms of 

the state of the relevant District, or the state of the admission of the attorney; or a 

combination of those factors, as set out in the ABA's recently amended Rule 8.5.33 

32Tlris was at least one articulated argument in the recent Massachusetts decision to abandon the ABA 

Code and move to the ABA Model Rules. Report of the Supreme Judicial Court's Committee on the 

Model Rules of Professional Conduct, February 1, 1996, 1-2. 

33RULE 8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW. 

(a) Disciplinary Authority. A lawyer adrrritted to practice in this jurisdiction is 

subject to the disciplinary authority of thls jurisdiction, regardless of where the lawyer's 

conduct occurs. A lawyer may be subject to the disciplinary authority of both thls 

jurisdiction and another jurisdiction where the lawyer is adrrritted for the same conduct. 
Page42 

-40-

Two possible models have already been presented to this Committee. One is Rule 4 

of the original 1978 "Federal Rules of Disciplinary Enforcement," set out in 

Appendix V; attached. The other is a proposed draft submitted to this Committee 

on February 14, 1995 by the Illinois State Bar Association, and attached as Appendix 

VI to this Report. The Federal Rules of Disciplinary Enforcement model, or rules 

influenced by that model, are already in effect as local rules in 15 Districts, 

sometimes with modifications. (E.D. Arkansas, W.D. Arkansas, N.D. Illinois, S.D. 

Illinois, Maine, Massachusetts, Minnesota, E.D. Michigan, E.D. Missouri, Nebraska, 

W.D. Oklahoma, E.D. Pennsylvania, Wyoming, Vermont, W.D. Virginia.) 

Of course, the fundamental arguments for this approach are the principles 

articulated in Resolution XII of the Conference of Chief Justices. See Section VI, A. 

and Section VII, A., above. The approach would ensure that court houses on the 

same street used the same professional standards and would facilitate the kind of 

reliance on state disciplinary procedures advocated by the Illinois State Bar 

Association.34 Equally obvious is that this approach leaves many of the problems 

described above in Sections III, IV, and V unresolved. Multiforum litigation would 

still present some of the nightmares described by Professor Mullenix, see Section V., 

D., and Appendix IV, attached. The battles between the Department of Justice and 

the Conference of Chiefs Justices would continue. See Section V, E., above. There 

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the 

rules of professional conduct to be applied shall be as follows: 

(1) for conduct in connection with a proceeding in a court before which a lawyer has 

been admitted to practice (either generally or for purposes of that proceeding), the 

rules to be applied shall be the rules of the jurisdiction in which the court sits, unless 

the rules of the court provide otherwise; and 

(2) for any other conduct, 

(i) if the lawyer is licensed to practice only in this jurisdiction, the rules to be 

applied shall be the rules of this jurisdiction, and 

(ii) if the lawyer is licensed to practice in this and another jurisdiction,· the 

rules to be applied shall be the rules of the admitting jurisdiction in which the 

lawyer principally practices; provided, however, that if particular conduct clearly 

has its predominant effect in another jurisdiction in which the lawyer is licensed to 

practice, the rules of that jurisdiction shall be applied to that conduct. 

Model Rules of Professional Conduct (1994 ed.), 106, as amended on August 11, 1993, by the ABA 

House of Delegates. 

34Toe Illinois State Bar Communication of February 14, 1995, observes: 

"Beginning in 1993, the Illinoi_s State Bar Association Standing Committee on the 

Attorney Registration and Disciplinary Commission began considering the issue of 

attorney discipline within the context of federal court system and the relationship to 

the state disciplinary system. As a result of this study, which included conversations 

with those involved in both the state and federal systems, the Committee concluded 

that a mechanism should be established to improve attorney discipline in the federal 

courts by utilizing existing state disciplinary agencies. 

In the significant time that elapsed between the Committee's recommendation 

and the action by the ISBA Board of Governors, additional events have demonstrated 

the advisability of this proposal. In re Rufus Cook. No. D-217, (7th Cir. 1995), 

attached, illustrates the confusion and misunderstanding that may result today 

between the federal courts and a state disciplinary agency. Yet, it also illustrates the 

need for a clear mechanism to replace the current ad hoc mechansim." 
Page 43 

-41-

would still be cases like In re Rufus Cook, supra, _F.3d_, (January 30, 1995) and 

Due Process problems. See Section V, C., above. 

There would, however, be one major improvement. A single uniform "state 

standards" federal rule would eliminate the current "balkanization" of approaches 

now found among federal local rules, saving the practitioner hours of frustration in 

finding the right rule. See Section III, above. It would also cure the particular 

frustrations of a practitioner in a District without any local rule. See Section IV, 

supra. A practitioner could simply assume that the state standards applied. The 

maximum potential variation, in short, would be limited to 51 states, not 94 

additional Districts. 

C. A "MODEL LOCAL RULE" 

[OPTION3] 

This option has, in effect, already been tried. The 1978 initiatives of the 

Committee on Court Administration and Case Management resulted in model local 

rules, the "Federal Rules of Disciplinary Enforcement," now adopted, in whole or in 

part, in 15 Districts. See Section VII, B., above. Again, this model is set out a.s 

Appendix V, attached, in the form adopted by the Western District of Virginia on 

November 4, 1992. 

There is one clear advantage to a "model local rule" approach. It is much 

faster than obtaining a uniform federal rule through the Rules Enabling Act process, 

28 U.S.C. §§ 2071-2077. The Rules Enabling Act process must take nearly two and 

one half years. Model local rules also can be suggested on a "voluntary basis." In 

fact, there is no theoretical reason why Option 1 ("national standard") and Option 2 

("state standard") could not be promulgated in a "model local rule" form. 

As a practical matter, however, merely improving on the "Federal Rules of 

Disciplinary Enforcement" is unlikely to increase "voluntary" adoptions. The 

model has been available, and has been advocated, for nearly twenty years. The 

inherent advantages of either "Option 1" or "Option 2" would be a uniform 

national solution, not a continuation of "voluntary" patch work models. In 

addition, local rules adopted under Fed. R. Civ. P. 83 or Fed. R. App. P. 47 and 28 

U.S.C. § 2071 do not have the advantage of the supercession clause, 28 U.S.C. § 2072. 

This could leave unsolved the problem of competing agency rules. See Section VI, 

E., above. 

D. "DO NOTHING" 

[OPTION 4] 

This approach is certainly the easiest. This entire Report, however, describes 

a situation which is not getting better by itself. See, particularly, Section III, B., 

above. While this Report is not intended to be an advocacy document for any of the 

fundamental options available, this Committee's failure to act will certainly invite 

Congressional action, and it should. See Section VI, A. above. The Rules Enabling 

Process, as established by Congress, provides exactly the tools needed to address this 
Page 44 

-42-

kind of problem, and the Judicial Conference itself is under an explicit 

Congressional mandate to keep the rules system in good order. See 28 U.S.C. § 331. 

Even if the Committee is unwilling to take fundamental steps at this time, the 

interim measures advocated by Professor Mullenix, and described in Section V, D., 

and Appendix IV, pp. 53-61, should be discussed. At the least, a uniform rule 

governing conflicts in professional standards is highly desirable. Id. 55-56. 

E CONCLUDING RECOMMENDATION 

The Reporter proposes that this Report be circulated by the Secretary to all 

interested professional.and public groups, and that their comments be solicited. 

Secondly, the Reporter recommends that a small invitational conference be held to 

discuss this Report immediately preceding the Committee's next meeting, 

commencing on January 9, 1996. Invitees should include representatives of the 

Conference of Chief Justices, the Department of Justice, the American Bar 

Association, and other important interest groups, as well as academic experts and 

experienced practicing lawyers. Members of this Committee should be encouraged 

to attend and observe the proceedings. A similar Conference, held in Boston in 

November of 1988, was of great assistance to the Committee in resolving local rule 

problems of similar difficulty. Total attendance would be less than thirty. 

Following this Conference, the Committee may then direct the Reporter to prepare 

drafts incorporating one, or more, of the basic approaches above, in consultation 

with the Advisory Committees and the Committee on Court Administration and 

Case Management. 

Daniel R. Coquillette 

Reporter 
I 

f 

' i . 

I 

I 

[ 

f 

I 

I 

' ' 

APPENDIX I 

Chart One: Rules of 

Professional Conduct in the 

Federal District Courts: 

Summary 

[3pages] 

May 24, 1995 

Page 45 

~ I 

rn 

~ 

II.ii 

II 

J 

1 

I 

I 

,, 

~ . ' 

·; 

w ' 'I' Ii 

'1.'; ,I 

111 

i! 

111 

~: 

Cir. 

DC 

01 

01 

02 

OJ 

03 

03 

03 

OJ 

04 

04 

04 

04 

05 

OS 

OS 

OS 

OS 

OS 

06 

06 

06 

06 

07 

07 

(1( (2] (3) 

REFERS TO STATE RULE, State Ruic Based on: 

ADA Model ADA Code Other 

Rules (1983) Cir. (1969) Cir. {California 

1992) 

D.D.C. pg.I 01 D.Mass. pg.I 09 C.D.CA' pg.13 

D.NH pg.I 01 D.ME pg.I 09 N.D.CA' pg./5 

D.RI pg.2 02 W.D.NY pg.2 

D.CT pg.2 02 D. VT pg.2 

D.NJ pg.3 04 E.D.VA pg.4 

E.D.PA pg.3 06 N.D.OH pg.S 

M.D.PA pg.3 06 S.D.OH pg.S 

W.D.PA pg.3 06 E.D.TN pg.9 

D.MD pg.4 06 W.D.TN pg.9 

E.D.NC1 pg.4 08 D.NE pg.12 

M.D.NC' pg.4 09 D.OR pg.16 

D.SC pg.4 II N.D.GA pg.21 

N.D.WV pg.5 Total: 12 Total: 2 

E.D.LA pg.5 

M.D.LA pg.5 

W.D.LA pg.6 

E.D.TX pg.6 . 

N.D.TX pg.7 

S.D.TX pg.7 

E.D.KY pg.S 

W.D.KY pg.S 

E.D.MI pg.8 

W.D.MI pg.8 

C.D.lL pg.9 

S.D.JL pg.JO 

CHART ONE 

RULES OF PROFESSIONAL CONDUCT 

IN THE FEDERAL DISTRICT COURTS 

Summary Page 

(4) )SI 

Ref~rs to State Rule~ & 

Cir. Refers lo an ABA Model £!!: an ABA Model 

01 D.PR {ar) pg.2 02 . E.D.NY (c) & (ac) pg.2 

02 N.D.NY (ac) pg.2 02 S.D.NY (c) & (ac) pg.2 

03 D.DE (ar)pg.3 04 S.D.WV (r) & (ac) pg.5 

03 D.Vl (ar) pg.3 05 W.D.TX (r) & (ac) pg. 7 

06 M.D.TN (ac) pg.9 09 E.D.CA (o) '& (ac)pg./4 

09 D.Guam(ar) & (ac) pg./5 09 S.D.CA (o)' & (ac))pg./5 

09 D. N.M.J. (ar) pg.16 11 M.D.AL (r) & (ar) pg./9 

09 D.MT (Old Canonl) pg.16 11 N.D.AL (r) & (ar) pg./9 

10 E.D.OK (ac) pg.JS II S.D.AL (r) & (ar) pg.20 

10 N.D.OK (ac) pg.IS 11 M.D.GA(c) & (ar) pg.20 

11 S.D.GA (Old Canons') pg.21 

Total: 10 Total: IO 

Totals: (ac): 4 

(ar): J 

(ac) & (ar): I 

(Old Canons'): 2 

(6) 

Cir. No Local Rule4 

04 W.D.NCpg.4 

04 W.D.VA pg.5 

05 N.D.MS pg.6 

05 S.D.MS pg.6 

07 W.D.WJ pg.JO 

08 N.D.IApg./1 

08 S.D. IA pg.II 

08 W.D.MO pg.12 

08 D.NDpg.12 

08 D.SD pg./2 

09 D.AKpg./2 

Total: 11 

)71 

Standing Order or 

Local Ruic that 

Follows Neither 

State Rults Nor an 

Cir. ADA Model 

07 N.D. IL' pg.9 

Total: I 

1 

"' .I>, 

-..J 
(I( (2( (JI 

REFERS TO STATE RULE. State Rule Based on: 

ABA Model ADA Code Other 

Cir. Rules {1983} Cir. {1969} Cir. {California 

1992) 

07 N.D.IN pg.JO 

07 S.D.!N pg. JO 

07 E.D.Wl pg.JO 

08 E.D.AR pg.ll 

08 W.D.AR pg. ll 

08 D.MN pg.ll 

08 E.D.MO pg.J2 

09 D.AZ pg.J3 

09 D.HA pg.J6 

09 D.ID pg.J6 

09 D.NV pg.J6 

09 E.D.WA pg.J7 

09 W.D.WA pg.J7 

10 D.CO pg.J7 

ID D.KA pg.J7 

JO D.NM pg.J7 

10 N.D. OK pg.JS 

JO W.D.OK pg.JS 

JO D.UT pg.JS 

10 D.WY pg./9 

l'I M.D.FL pg./9 

II N.D.FL pg.2O 

II S.D.FL pg.20 

Total: 48 

14( (51 (61 

Rders to State Rules & 

Cir, Rerers to an ABA Model Cir. an ABA Model Cir. No L-Ocal Rule4 

(7( 

Standing Order or 

Local Rule that 

Follows Neilhcr 

State Rules Nor an 

Cir. ABA Model 

"cl 

i 

.i,. 

00 
Abbrevialions: (ac) denotes a District which has adopted the ABA Model Code. (ar) denotes a District which has adopted the ABA Model Rules. (c) denotes a State which has adopted a 

version of the ABA Model Code. (r) denotes a State whieh has adopted a version of the ABA Model Rules. (o) denoles a State which has adopted neither a version of the ABA Model Code 

nor a version of the ABA Model Rules. 

1 Rules and Comments based on ABA Model Rules. but structure organized under the Canons of the ABA Model Code. 

2 All four California Districts (see Columns 3 and S) refer to the California Rules of Professional Conduct (approved 8/13/92, effective 9/14/92). 

' Districts marked "Old Canons" still refer to the old ABA Canons of Professional Ethics (1908), which were replaced by the ASA Model Code in 1969. 

4 Some of these Distcicts use Standing Orders, or have attached the Model Federal Rules of Disciplinary Enforcement (1978) as appendices to their Local Rules. 

s The Northern District of Illinois uses a "General Order" adopting a "Model Rule" format (with substantial changes). 

r 

"O 

J'ci 

(> 

.i,. 

"' 

C 

APPENDIX II 

Chart Two: Rules of Professional Conduct 

in the Federal District Courts: 

Local Rules and Standing Orders 

for Each of the Ninety-Four Districts 

[20 pages] 

May 24, 1995 

Page 51 

Cir. District 

DC D. D.C. 

Rule 

706 (a) 

01 D. Mass. 

Rule 

8).6(4)(b) 

01 D. Me. 

Rule 7(d)(2) 

01 D. N.H. 

Ruic 4(d) 

CHART TWO 

RULES OF PROFESSIONAL CONDUCT IN THE FEDERAL DISTRICT COURTS: Local Rules 

and Standing Orders for Each of the Ninety-four Districts 

May 24, 1995 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES 

Rulu of Prof. Cond. Code of Prof. Ru~. Other ABA Model Rules ABA Model Code Other 

Rules of Prof. Conduct as 

adopted by the D.C. Ct. of 

Appeals exctpt as 

otherwise provided by 

specHic rule of this Ct. 

District adopted a verJlon 

of /he Rules of Prof. 

Conduct 

State adopted a version o Canons and rules adopted 

/he Code of Prof. by !he Supreme Judicial Ct 

Responslb/11/y of MA embodied In rules 

3:0S, 3:07; 3:08 as !hey 

may be amended cx~ept as 

o!hcrwlse provided by 

speclnc rule of !his Ct after 

consideration of comments 

by rep of bar associations 

In MA 

Code as adop~d by !he 

Supreme Judicial Ct of 

ME as amended for time 

to time by that ct. 

State adopted a version o) 

the Code of Prof 

ResponslbJ!lty 

Slate adopted a version of Stds which govern the 

the Rules of Prof Conduct members of the NH Bar 

Association as of lime any 

atty appears before any 

Judge or Maglslrale of this 

Ci. 

LOCAL RULE: 

Follow!l neither State 

NO LOCAL Rulu Nor an ABA 

RULE Model 

>o 

"' . (IQ 

('I) 

V, 

\;.) 
REFERS TO STATE RULES 

Cir. District Rules of Prof. Cond, Code of Pror. RcsJ:!, Olhcr 

01 D. P.R. 

Rule 211.4(b) 

01 D.R.I. Rules as adopted by RI 

Supreme Ct. 

Ruic 4(d) State adopted a version of 

the Rules of Prof Conduct 

02 D.Conn. Rules as approved by Rules 3.6 & 3.7(b) of the 

Judges of CT Superior Ct Rules are not adopted. 

Rule 3(a) on Oct. I, 1986. Any Other ethical stds set forth 

changes made after that in Local Civil Rule 33 & 

date shall not be binding Local Criminal Rule 13. 

on the District Ct unless 

expressly adopted by order 

of District Judges. 

State adopted a version of 

the Rules of Proj Conduct 

02 E.D. N.Y. State adopted "Dlscp. Code of ABA or NY Bar 

Rules of the Code of Prof. Association 

Rule 4(0 Resp," In Sec. 1200 

McKinneE's NY Rules o( 

Courl 

02 N.D.NY 

Rule 83.40) 

02 S.D N.Y. Stale adopted "Dfscp. Code of ABA or NY Bar 

Rules of the Code of Prof Association 

Rule 4(1) Resp." fn Sec. 1200 

McK/nne't,'s NY Rules o[ 

Courl 

02 W.D. N.Y. Code of the ABA as 

adopted by the NY State 

Rule 5(c) Bar Association 

State adopted "Dlscp. 

Rules of /he Code of Prof 

Resp." fn Sec. /200 

McK/nne't,'s NY Rules o[ 

Court 

02 D. Vt. Stale adopted a version q Cade or Rules as adopted 

the Code of Prof by the highest ct of the 

Rule Responsibility state In which this Ct sits. 

l(d)(4)(b) 

REFERS TO A MODEL SET OF RULES 

NO LOCAL 

ADA Model Rules ABA Model Code Olher RULE 

ADA Model Rules 

Code of ABA or NY Bar 

Assoclotlon 

ABA Code 

Code of ABA or NY Bar 

Association 

2 

LOCAL RULE: 

Follows neither Slate 

Rules Nor an ABA 

Model 

"C 

~ V\ 

.,. 

I 
l

,_I 

1: 

ill 

1

1i 

!j 

ii !i'.' 

I jl 

I 

,1, 

' 

Cir. 

03 

03 

03 

03 

03 

03 

District 

D. Del. 

Ru!e 

83.6(d)(2) 

D. N.J, 

Rule 6(a) 

E.D. Pa. 

Rule 

14 (IV)(b) 

M.D. Pa. 

Rules 304.2 

W.D. Pa. 

Rule 

83.6(J)(b) 

D. VJ. 

Rule 24 

' 

REFERS TO STATE RULES 

' 

Rules of Prof. Cond. Code of Prof. Rts[!, Other 

Rules as revised by the NJ 

Supreme Ct subject to 

modification by fedenil 

statute, regulation or ct rule 

or decision of law 

Srale adopted a version of 

the Rules of Prof Cond11ct 

Rules as adopted by the Except prior court approval 

Supreme Ct of PA except as a condlllon to the 

as otherwise provided by Issuance of a subpoena 

specific rule of this Ct after addressed to an atty In any 

consideration of comments criminal proceeding 

by bar association within Including a grand Jury, 

state shell no_t be required 

State adopted a version of 

the Rules of Prof. Conduc/ 

Rules as adopted by the 

Supreme Ct of PA except 

Rule 3.10 as amended from 

time to time unless 

specifically excepted In the 

Rules of this Cl. 

Stale adopted a version of 

the Rules of Prof. Conduct 

Rules as adopted by the 

Supreme Ct of PA except 

Rule 3.10 as otherwise 

provided by specific order 

of this Ct. 

Store adopted a ver.slon of 

tire Rrtfes of Prof. Conduct 

REFERS TO A MODEL SET OF RULES 

ABA Model Ruic, ABA Model Code Other 

ABA Model Rules 

r 

ABA Model Rules as 

amended from llme to 

time. In the event that 

tho ADA adop~ a 

replacement to the 

Model Rules, Ota! 

replacement will be 

effective in the territory 

3 

LOCAL RULE: 

Follows ncllhcr Stale 

NO LOCAL Rules Nor en ADA 

RULE Model 

I> .,, 

,, 

,, V, 

,, V, 
4 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follows neither State d 

NO LOCAL Rules Nor an ADA 

Cir, District Rules or Prof. Cond. Code or Prof. Rtsl!, Other ABA Model Rules ABA Model Code Other RULE Model 

04 D. Md. Rules as adopted by the ' 

MD Ct of Appeals 

Rule 704 State adopted a version of 

the Rules of Prof. Conduct 

04 E.D. N.C. State adopted Jhe stmcture Code of the NC State Bar 

of the Rules and Commem Association incorporated 

Rule2.I0 but organized under the and modlned by the 

Canons of the Model Code Supreme Ct of NC except 

as otherwise provided by 

specific rule of this Ct 

04 M.D. N.C. Stare adopted the structure NC State Code "Prior to being admitted to 

of the Rules and Comment pracl\ce, an atty must 

Rule but organized under the certify that he has read and 

I0J(b) Canons of the Model Code is familiar with the ... 

Local Rules of thls Court 

and the NC Code of Prof. 

Resp.'' 

04 W.D. N.C. No Local Rule: 

Presently has 

Standing Order 

which adopts 

Canons of Prof. 

Ethics of NC 

Supreme Cl and 

the ABA 

(Committee 

Meeting to 

revise standing 

order In 1/95) 

04 D. S.C. State adopted a version of SC Code of Prof. Resp. 

the Rules of Prof. ConducJ (Rule 32, Rules of the 

Rule 2.0& Supreme Ct of SC) now 

ln force and as hereinafter 

modified by Supreme Ct 

of SC except as otherwise 

provided by specific rule 

of this Ct 
~--------

REFERS TO STATE RULES 

I .·'_I' 

I 

ii 

I 

I 

11··1 

[i 

Cir. 

04 

04 

04 

04 

OS 

District Rulu of Prof. Cond. 

E.D. Va. 

Rule 7(i) 

W.D. Va. 

N.D. State adopted a version of 

W.Va. the Rules of Prq/. Conduct 

Rule 1.0l(c) 

S.D. W,Va. State adopte.d a version of 

the Rules of Prof. Conduct 

Rule 

LR Gen 

301 

E.D. La, Rules of LA State Bar 

Association as hereinafter 

Rule amended by the LA: 

20.04(e) Supreme 'Cl except as 

otherwise amended by 

specific rule of this Ct 

State adopted a version of 

the Rules of Prof. Conduct 

Code of Prof. Res[!, Other 

VA code of Prof However, contrary to VA 

Resp.now In force and as practice prior ct approval 

hereinafter modified or as a conditlon to the 

supplemented Issuance of a .subpoena 

Srate adopted a version oJ addressed to an atty in any 

the Code of Prof. criminal proceeding, 

Responsibility Including a grand Jury, 

shall not be required. 

• 

Code as promulgated and 

amended by the WV 

Supreme Ct of Appeals. 

Code of the ABA, Model 

Federal Rule of Dlscp. 

Enforcement, and the 

Code as adopted and 

promulgated by the 

Supreme Ct Or Appeals oi 

WV. These codes, rules, 

& orders provide minima! 

stds. 

5 

REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follows ntllher Stale 

NO LOCAL Rulu Nor an ABA 

ABA Model Rules ABA Model Code Other RULE Model 

No Local Rufe: 

Standing Order 

adopHng Model 

Federal Rules of 

Disciplinary 

Enfori::Cmenl. 

R;ule 4b states 

that stds shall be 

Code or Rules 

as adopted by 

slate's: highest 

ct 

' 

Code or the ABA, Model 

Federal Rule of Dlscp. 

Enforcement, and the 

Code as adopted and 

promulgated by the 

SUp,eme Cl of Appeals ol 

VN. These codes, rules, 

& orders provide minimal 

stds. 

"O 

fci 

" ,'.:3 
REFERS TO STATE RULES 

Cir. Dlslrlct Rules of Prof. Cond. Code of Pror. Rcsl!, Olhcr 

05 M.D. La. Rules of LA State Bar 

promulgated by LA 

Rule Supreme Ct as In effect on 

2-0.04(m) May 15, 1989 subsequently 

promulgaled or other rules 

may by adopted by this Ct 

by general order. 

Stale adopted a version of 

the Rules of Prof, Conduct 

05 W.D. La. Rules of LA State Bar 

Association as hereinafter 

Rule 20.04(w) amended by the LA 

Supreme Ct except as 

otherwise amended by 

specific rule of this Ct. 

State adopted a version of 

the Rules of Prof. Cond11cl 

05 N.D. Miss. 

05 S.D. Miss. 

05 E.D. Tex Stale adopted a version of Code of ABA as adopted Atty should familiarize 

the Rules of Prof Conduct as part of rules governing duties and obligations 

Rule l(a) stale bar or TX Imposed upon members of 

this bar by the Code 

Including Canons, Disc, 

Rules, and ethical 

considerations, ct decisions, 

statutes, and the usages, 

customs, & practices of thl 

Bar. 

REFERS TO A MODEL SET OF RULES 

NO LOCAL 

ADA Model Rufe, ADA Model Code Olher RULE 

No Local Rule: 

Dr follows Code 

of Ethics 

prescribed by 

State Bar (clerk) 

No Local Rule: 

matter settled by 

Judge or referred 

to substantive 

std of con-duct 

or the MS State 

Bar (clerk) 

6 

LOCAL RULE: 

Follows neither State 

Rules Nor an ABA 

Model i 

u, 

00 
7 

REFERS TO STATE.RULES REFERS TO A MODEL SET OF RULES 1,OCAL RULE: 

Follows neither Slate 

NO LOCAL Rules Nor an ADA 

Cir. Dlslrlc:t Rules of Prof. Cond. Code of Prof. Rcsn, Other ADA Model Rules ABA Model Code Other RULE Model 

05 N.D. Tex· Stale adopted a version of (b)(i): Conduct unbecoming 

the Rules of Prof Conduct member of the ber; (ii) 

Rule 13.2 (b) failure to comply with local 

& (d) rules or other ru1cs·of 

ct;(III) unethlcal behavior; 

(iv) inability to conduct 

litigation properly 

(d): uncthlcol behavior 

includes conduct that 

violates any code, rule, or 

standard of Prof. Cond. or 

Resp. governing the 

conduct of attys who are 

authorized to practice 

before Cts of the State of 

TX. 

05 S.D. Tex State adopted a version of Attys required to act as 

the Rules of Prof Conduct mature and responsible 

Ruic 1(1) professionals & the ( 

& App.A minimum standard of 

practice shall be the TX 

Disc. Rules of Prof. 

Conduct. 

05 W,D. Tex. State adopted a version of Stds of Prof. Cond. as ABA Code wlll be noted 

the Rules of Prof Conduct required by members of the (Sec other under State 

Sec. 3, Ruic State Bar ofTX and Ruic,) 

AT-4 contained In the TX Dlscp. 

Rules of Prof Cond (VTCA 

Gov't Code Title 2, 

Subtitle G, Appendix) & 

the Decisions of any Ct 

applicable thereto, which 

arc adopted as stds of 

conduct of this Ct. In 

connection, the ABA Code 

shall be noted. No atty 

shall engage In any conduc >,:I 

which degrades or Impugns 

the liltegrlty of the ct or ~ Interferes In the 

Administration of Justice, 

V. 

'° 
--~'--· -· _._. -'---'-'---"""""' 

8 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follows neither State ~ NO LOCAL Rules Nor an ABA ~ Cir. District Rules of Prof. Cond, Code of Prof, Res~. Other ADA Model Rules ADA Model Code Other RULE Model 2:: 

06 E.D. Ky. State adopted a version of Stds of Prof Resp. BS 

the Rules of Prof Conduct adopted by the Supreme Ct 

Rule of KY 

3(b)(2)(E) 

06 W.D. Ky. State adopted a version of Stds of Prof Resp. BS 

the Rules of Prof. Conduct adopted by the Supreme Ct 

Rule of KY 

3(b)(2)(E) 

06 E.D. Mich. Rules as adopted by Ml 

Supreme Ct as amended 

Rule I I I.I (d) form lime to time 

State adopted a version of 

the Rules of Prof. Conduct 

06 W.D. Mich. Ml Rules of Prof. Conduct 

except those rules a 

Rule 17 majority of Judges of this 

cl exclude by 

administrative order. 

State adopled a version of 

the Rules of Prof Conduct 

06 N.D. Ohio Code as adopJed by the 

Supreme Ct of OH, so far 

Chp 5, Rule as not inconsistent wilh 

I :5.1 (b) federal law. 

Slate adopted a version o. 

the Code of Prof 

Responsibility 

06 S.D. Ohio Rule 83.4(Q states 

supervision of conduct Is 

Rule 83.4(Q; governed by tJ1e Model 

Appendix 48 Federal Rules of Discip. 

Enforcement located in 

the Appendix. Rule 4b of 

these rules stales that the 

stds are the Rules or Code 

of state's highest ct 

State adopted a version q 

the Code of Prof 

Responsibility 
9 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follows neither State 

NO LOCAL Ruic, Nor an ABA 

Cir, D!Jtrlct Rules of Prof. Cond. Code of Prof. Rts~. Other ABA Mod,I Ruic, ADA Mod<I Code Other RULE Mod,I 

06 E.D. Tenn. State adopted a version £?, Code of Prof. conduct as 

the Code of Prof. adopted by the Supreme Ct 

Rule 83.7(a) Responslbllity of TN, or has engaged In 

unethical conduct tending 

to bring the ct or the bar 

into disrepute 

06 M.O. Tenn. Current ABA Code. Does not apply to 

A violation of Dlscp. Dlscp. Rule 7-107, 

Rule l(e)(4) rules shall subject an atty which Is 

to dlscp. action superseded as a 

rule of this District 

by Rule 3 of this 

District. 

06 W.D. Tenn. Code as then currently except that prior ct 

promulgated end amended approval as a condition to 

Rule l(e) by the Supreme Ct of TN. the fssuencc of a subpoena, 

Sta,te adopted a version £?. addressed to an atty, shall 

the Code of Prof not be req'd. (Tenn. S. Ct. 

Responsibility R. 8, DR 7-103), (c) and 

with the guidelines for 

prof, courtesy and conduct 

as adopted by this ct, 

07 C.D.111. State adopted version of the Code as adopted by the 

Rules of Prof. Conduct Supreme Ct of IL as C 

Rule l.3(d) amended from lime to 

time by that ct. Except as 

otherwise provided by 

specific rule of this Ct 

after consideration of 

comments by state bar 

association. 

07 N.D.111. Ct adopted as a 

guidline Its own 

Rule 3.52 (b) version of the Rules o 

Prof. Conduc~ 

rejecllng the Rules as 

modiflcd by the 

Supreme Ct of IL and ' l >ti 

modifying the ABA ,< 

Model Rules. (Genml 'r 

Order Adopted 3/91) ' 

0\ 

-
10 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follows neither State 

NO LOCAL Rules Nor an ABA 1 

Cir. Dl!trict Rules or Prof. Conti. Code of Prof. Res(!, Other ADA Model Rules ADA Model Code Olher RULE Model .Ri 

07 S.D.111. Rules of Prof. Cond. 

adopted by the S.Ct of IL 

Rule 29 (d) as amended from time to 

time, except as otherwise 

provided by specilic rule o 

this Ct. 

State adopted version of th1 

Rules of Prof Conduct 

07 N.D. Ind. Rules as adopted by the IN Additionally, stds for prof. 

Supreme Ct conduct as adopted by the 

Rule 83.S(Q Stale adopted version of th1 7th Cir. 

and appendix Rules of Prof Conduct 

D. 

07 S.D. Ind Rules as adopted by the IN 

Supreme Ct. (Note: When 

Rule: 83.S (0 asked to send its Local 

Rule, the District sent ·a 

copy of the Stds of Prof, 

Conduct for Litigation in 

the Seventh Clrcu!t)S/ate 

adopted version of the 

Rules of Prof Conduct 

07 E.D. Wis. Rules (SCR: 20:1.1-8.S) as 

adopted from time to time 

Rule 2.0S(a) by the Supreme Ct of WI, 

and except as such may be 

modified by this Ct. 

Stale adopted version of th1 

Rules of Prof Conduct 

07 W.D. Wis. No Local Rule: 

Case by case 

basis, judges 

have complete 

discretion; 

however will 

consider ABA & 

State Bar. 

(clerk) 
REFERS TO STATE RULES 

Cir. Dlslrlcl Rules or .Prof. Cond. Code of Prof. Ru(?. Other 

08 E.D. Ark. Stare adopted version of thi Code or Rules adopted by 

Rules of Prof. Conduct the highest ct of the slate Ir 

Rule IV (b) which this Ct sits, as 

) 

amcTidcd from time to time 

by that state etc except as 

otherwise provided by 

specllic Rule of this Ct 

aner consideration of 

comments by 

representatives of state bar 

associations 

08 W.D. Ark. State adopled version of tht Code or Rules adopted by 

Rules of Prof Conduct the highest ct of the slate h 

Rule IV (b) which this Ct sits, es 

amended from time to time 

by that state etc except as 

othervtlse provided by 

sp eclnc Rule of this Ct 

after consideration of 

comments by 

representatives of state bar 

associations 

08 N.O. Iowa 

08 S.O. Iowa 

08 D. Minn. Rules adopted by the 

Supreme Ct of MN, as 

Rule 83.6(d) amended from time to time 

by that ct., except as 

otherwise provided by 

specific rules of this Ct. 

State adopted version of thi 

Rules of Prof Conducl 

REFERS TO A MODEL SET OF RULES 

NO LOCAL 

ADA Model Rult! ABA Model Code Other RULE 

No Local Rule: 

8th Cir. 

encouraged D. 

Cts to "strictly 

enforce the ABA 

Code" and IA 

Code must be 

considered 

(clerk) 

No Local Rule: 

Judge handles 

on case by case 

basis (clerk) 

11 

LOCAL RULE: 

Follows nellher State 

Rules Nor an ABA 

Model 

-0 

J'ci 

(1) 

°' t.,.) 
12 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follow, neither S~~ 

NO LOCAL Ruic, Nor an AB 

Cir. Dlslrlct Rules or Prof. Cond. Code or Pror. Res[!, Olhcr ADA Model Rules ADA Model Code Other RULE Model 

08 E.D. Mo. State adopted version of th Code as adopted by .• 

Rules of Prof Conduct Supreme Ct of MO, as 

Rule 2(g) · amended from time to 

time by that c~ except as 

otherwise provided by 

specific rule of this Ct 

after consideralion of 

commenlS by stale bar 

association. 

08 W.D. Mo. No Local Rule: 

corresponding 

with clerk 

08 D. N.D. No Local Rule: 

· Primarily 

address to the 

court or send to 

. State Bar 

Council (clerk) 

08 D. Neb. Code adopted by the 

Supreme Ct of NE, as 

Rule 83.5 amended from time to 

(d)(2) time except as otherwise 

provided by specinc rule 

of this Ct after 

consideration by state bar 

association, 

Stale adopted a version ci 

the Code of Prof 

Respon.rlbl/fty 

08 D. S.D. No Local Rule: 

Follow State Bai 

of SD (clerk) 

09 D.Alaska No Local Rule 

(Possible 

adoption In 6195 

of Ruic 83.5(h): 

AK Rules of 

Prof Conduct 

(clerk)State 

adopted version 

of the Rules of 

Prof. Conduc/ 
. --··"---

'- REFERS TO STATE RULES 

Cir. D1,trlct Rules of Prof. Cond. Code of Prof, Res~. Other 

09 D. Ariz. Rules as set forth in rule 4 

of the Rules of the 

Ruic 1.6(d) Supreme Ct of the slate of 

AZ. State adopted a 

version of the Rules of 

Prof. Conduct 

09 C.D. Cal. Stds of Prof. Conduct 

required of members of the 

Ruic 2.5 state bar of CA, end 

contained In the State Bar 

Ac~ the rules of Prof, 

Conduct of the state bar of 

CA, and the decisions of 

any ct applicable thereto. 

No atty shall engage in any 

conduct which degrades or 

Impugns the Integrity of the 

ct or In any manner 

Interferes with the 

administration of Justice 

therein. State adopled 

Call(grnla Rules o( 

Pro(!sslonaf. Conduct (eff. 

9/U/92) 

REFERS TO A MODEL SET OF RULES 

NO LOCAL 

ADA Model Rules ~BA Model !;ode Other RULE 

13 

LOCAL RULE: 

Follows ncUhcr Stale 

Rules Nor an ADA 

Model 

? 

°' c.,, 
14 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follow, neither Slate ~ 

NO LOCAL Rule, Nor an ADA 1 

Cir. Distrlcl Rules of Prof. Cond. Code of Prof. Res(!, Olher ADA Model Rul" ADA Model Cod, Other RULE Model 

09 E.D. Cal, Std, of Prof. Conduct ABA Code should be ., 

required of members of the noted (Sec other under 

Rule I 80(e) state bar of CA, and State Rules) 

contained In the State Bar 

Ac~ the rules of Prof. 

Conduct of the slate bar of 

CA, and the decisions of 

any ct appllcable thereto. 

In the absence of an 

applicable standard, the 

ABA Code may be 

considered for guidance. 

No atty shall engage In any 

conduct which degrades or 

Impugns the Integrity of the 

ct or ln any manner 

interferes with the 

administrallon of Justice 

therein. State adopted 

Ca/J(prnla Rules o( 

Pro(pss/onal Conduct (elf. 

9/14/92) 
' 

1s· 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: . Follows nellhcr Slate 

NO LOCAL Rules Nor an ADA 

Cir. District Ruic, of Prof. Cond. Code of Prof. Re,~. Olher ABA Model Ruin ABA Model Code Olher RULE Model 

09 N.D. Cal Stds of Professional 

Conduct required of 

Rule 110(3) members of the state bar of 

CA, and contained in the 

State Bar Act, the rules of 

Prof. Conduct of the state 

bar of CA, and the 

decisions of any ct 

applicable thereto. 

Maintain the respecl due 

cts of justice and Judicial 

officers; perform with the 

honesty, care, and decorum 

req'd for the fair and 

efficient administration of 

justice; discharge the 

obllgatlons owed to his 

clients and to the Judges of 

the ct; and assist those In 

need of counsel when 

requested by a Judge. Stati 

adopted Ca/l(!,rn/a Rules 

o(Profjsslonaf Conducr 

(ejf. 9/U/92) 

09 S.D. Cal. Stds of professional ABA code should be 

conduct rcq1d ·or the noted (See other under 

Rule 83.5 (e) members of the st.ate bar ol St.ate Rules) 

CA, and decisions of any c 

applicable thereto. ABA 

Code should be noted, 

Atty shall not engage In 

any conduct which 

degrades or Impugns the 

Integrity of the c~ or In ani 

manner Interferes with the 

administration of Justice 

therein.State adopted 

Call{prnla Rrtles o( ti 

Pro(!sslonal Coriduct (eff. 

9/U/92) II'.! 

09 D. Guam ABA Code and ABA ABA Code and ABA 

Rules as adopted on 8- Rules as adopted on 8-12-

Rule I 15 12·69 and thereafter 69 and thereafter runende« 

(S)(b) amended or Judicially or Judlclally construed. 

constrm:cl. 
16 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: l 

Follows neither Stali 

NO LOCAL Rules Nor an ABA 

Cir. District Rule5 of Prof. Cond. Code or frof. RcsJ!. Other ABA Model Ruin ADA Model Code Other RULE Model ~ 

09 D. Haw. State adopted a version of Stds of prof. and ethical 

the Rules of Prof Conduct. conduct as required by the 

Rule 110 (3) members of the HA slate 

bar. 

09 D. Idaho State adopted a version of Stds of prof. cond. required 

the Ru/es of Prof Conduct, of members of the ID state 

Rule 83.6(a) bar and any decisions of 

any ct applicable thcrclo. 

Idaho rules of prof. cond. 

for the ID slate bar should 

be noted. 

09 D. N. Mar. I. ABA rules as adopted and this cl's 

In l 983 and thereafter "standards of prof. 

Ruic 110·3 amended or Judicially conduct" see pg. I 

construed local Rules. 

09 D. Mont Standards shall 

Include the ABA 

Ruic 110(3) Canons of 

Professional Ethics 

09 D. Nev. Stale adopted a version of Code and rules ns such 

the Rr,les of Prof, Conduct. may be adopted from time 

Rule to time by the Supreme Ct 

120(9)(a) of NV, except as such may 

be modified by this Ct. 

09 D. Or. State adopted a version o Stds of prof. conduct 

the Code of Prof Resp. required or members of 

Rule 110-3 the OR state bar; maintain 

the respect due courts of 

justice and judicial officers; 

perfonn with the honesty, 

care, and decorum required 

for the fair and efficient 

administration of Justice; 

discharge the obligations 

owed to their clients and to 

the ct; and assist those In 

need of counsel, when 

requested by the Ct. 
I 

' l 

" 

:1 ' 

!; 

!: 

I: 

' 1: 

'i' 

:I ;!, 

,, 

i 

:1 

!1 

ii' 

I,! 

I Ii· 

iii'· ;! 

;:1 

:,:: ,I 

!'··1-.· lj 

}1 

:.)I: 

u .. 1

1 !,, 

11: 

111 

:'!i 

Cir. District 

09 E.D. Wash. 

Rule l.2(Q(2) 

09 W.D. Wash. 

Rule 2(e)(I) 

10 D. Colo. 

Rule 83.6 

10 D. Kan. 

Rule 407(•) 

10 D.N.M. 

Rule 83.9 

10 E.D. Okla. 

Rule 4G) 

REFERS TO STATE RULES 

Rules of Prof. Cond. Code of Prof. Re!(!:, Olhcr 

Rules of the WA state bar 

in effect at the lime these 

rules are adopted, together 

with any amendments or 

additions to such rules 

State adopted a version of 

the Rules of Prof Conduct. 

State adopted a vers/011 of Canons of Prof. Ethics as the Rufes of Prof Conduct. promulgaled by the WA 

slate S-uprcme Ct, and In 

effect Bl the time these 

rules arc adopted, together 

with any amendments or 

additions, unless such 

amendments or additions 

are speclfically disapproved 

by this Ct. 

Rules as adopted by lhe 

CO Supreme Ct 

State adopted a version of 

the Rules of Prof Conducl. 

Slate adopted a version of Code and rules as adopted 

the Rules of Prof. Conduct. by the Supreme Ct of KS, 

and as amended by that et 

from time to time, except 

as otherwise provided by 

speelne rule of this Ct. 

Rules as adopted by the 

Supreme Ct of the state of 

NM, with all amendments 

which may hereafter be 

adopted by the state ct, 

except as otherwise 

provided by specific rule o 

order of the ct. 

Stale adopted a version of 

the Rules of Prof Conducl. 

REFERS TO A MODEL SET OF RULES 

NO LOCAL 

ADA Model Ruin ADA Model Code Oiher RULE 

ABA Code or any 

conduct unbecoming a 

member of the bar of this 

Ct 

17 

LOCAL RULE: 

Follows neither State 

Rules Nor an ABA 

Model 

? 

0\ 

\0 
18 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follows neither Slate j 

NO LOCAL Rules Nor an ADA( 

Cir. District Rules or Prof. Cond. Code of Prof. Rt!(!, Other ADA Model Rules ADA Model Code Other RULE Model . 

IO N.D. Okla. OK Rules of Prof. Conduct 

as adopted by the OK 

Ruic 83.2(a) Supreme Ct. State adoptea 

a version of the Rules of 

Prof Conducl. 

IO W.D. Okla. State adopted a version of Code adopted by the 

the Rules of Prof Conduct. highest ct of the state In 

Rule which this ct sils, as 

4G)(4)(b) amended from time to 

time by that state ct, 

except as otherwise 

provided by specific rule 

of this Ct after 

consideration of 

comments by that state 

bar association. 

IO D. Utah Rules of practice adopted 

by this Ct, and unless 

Ruic 103-1 otherwise provided by 

(h) these rules, with the UT 

Rules of Prof. Conduct as 

revised and amended, and 

as interpreted by this ct. 

Slate adopted a version of 

the Rules of Prof Conduct. 

10 D. Wyo. Rules as adopted by the 

highest ct of the state In 

Rule 206(b) which this Ct sits, and as 

emended from time to time 

by that state ct, except as 

otherwise provided by 

specific rule of this Ct after 

consideration of comments 

by that state bar 

association. 

State adopted a 1,1erslon of 

the Rules of Prof Conduct. 
19 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: 

Follows neither State 

NO LOCAL Rules Nor an ABA 

Cir. District Rules or Prof. Cond. Code of Prof. RtSI!, Olher ADA Model Rule, ADA Mod,I Code Other RULE Model 

II M.D. Ala. Stale adopted a version of Local Rules, the ethical Local Rules, the ethical 

tire Rules of Prof Conduct. limitations and limitations and 

Ruic I (a)(4) requirements governing the requirements govcm_ing 

behavior of the members o the behavior of the 

the AL state bii.r, and to the members of the AL 

extent not Inconsistent with stale bar, and to the 

the preceding, the ADA extent not inconsistent 

Model Rules. with the preceding, the 

ADA Model Rules, 

II N.D. Ala. Local Rules of this Ct and, Local Rules of this Ct 

to the ex.rent not and, to the extent not 

Ruic 83.t(f) inconsistent with the Inconsistent wlth the 

preceding, the AL Rules of preceding, the AL 

Prof. Conduct adopted by Rules of Prof. Conduct 

the AL Supreme Ct. and, tc adopted by the AL 

thC extent not Inconsistent Supreme Cl. and, to tht 

with· the preceding, the extent not Inconsistent 

ADA Model Rules, except with the preceding, the 

rule 3.8(1). ADA Model Rules, 

State adopted a version of except rule 3.8(Q. 

the Rules of Prof Conduct. 

It S.D. Ala. State adopted a version of Local Rules, the ethical Local Rules, the ethical 

the Rules of Prof Conduct, limitations and llmllatlons and 

Ruic l(a)(4) requirements governing the requirements governing 

behavior of the members ol the behavior of the 

the AL state bar, and to the members or the AL 

extent" not Inconsistent with state bar, and to the 

the preceding, the ADA extent not Inconsistent 

Model Rules. with the preceding, the 

ABA Model Rules. 

II M.D. Fla. ABA Model Rules as 

modified and adopted by 

Ruic 2.02(c) the Supreme Ct of FL. 

State adopted a version of 

the Rules of Prof Conduct. 

-· f 

...:, 

-
20 

REFERS TO STATE RULES REFERS TO A MODEL SET OF RULES LOCAL RULE: r Follows neither Slate 

NO LOCAL Rules Nor en ABA 

Cir. District Rules or Prof. Cond. Code of Prof, Res,e. Other ABA Model Rules ABA Model Code Other RULE Model N 

II N.D. Fla. State adopted a version of ABA Code as modified 

the Rules of Prof. Conduct. and edopted by the 

Rule 4(g)(I) Supreme Ct of FL, except 

where an act of congress, 

federal rule or procedure, 

Judicial conference 

resolution, or rule of ct 

provided otherwise. 

II S.D. Fie. State adopted a version of Stds Include current Rules 

the Rules of Prof Conducl. Regulating the FL Ber. 

Ruic I l.l{c) 

II M.D. Ga, The Ct's Locel Rules, by State adopted a version q, The Ct's Locel Rules, 

the Rules of Prof, Cond. the Code of Prof by the Ru!Cs of Prof. 

Ruic 13.1 adopted by the highest ct Responslbillty Cond. adopted by the 

of state In which this Ct highest et of state In 

sits, as amended from time which this Ct sl~, es 

to time by that state ct, amended from time to 

and, to the extent not time by that slate ct, 

inconsistent with the and, to the extent not 

preceding, the ABA Model inconsistent with the 

Rules, except as otherwise preceding, the ABA 

provided by specific rule o Model Rules, except as 

this Ct. otherwise provided by 

specific rule of this Ct. 

II N.D. Ga, SpecU1c rules of practice 

adopted by this C~ and 

Ruic 110(3) unless otherwise provided, 

with the Code of Prof, 

Resp., and the stds of 

conduct contained in the 

Rules and Regulations of 

the State Bar of GA, and 

with the decisions of this 

ct interpreting these rules 

and standards. 

Stale adopted a version o 

the Code of Prof 

Responsibility 

II S.D. Ga. Sids shall include 

the current ABA 

Section 4 Canons of 

Ruic 5 (d) Professional Ethics. 
APPENDIX III 

Chart Three: Rules of 

Professional Conduct in the 

Federal Circuit Courts 

[3 pages] 

May 24, 1995 

Page 73 

Cir. REFERS TO STATE RULES 

DC The Code of Prof. Responslblllty adopled by 

the DlstrlCI of Columbia Court of Appeals, 

App. V, as amended fom time to time by that C~ 

Ruic I except as olhc~lse provided by specific rule 

of this Ct. 

Isl Code of Prof. Responsibility; that code 

adopted by the highest ct or the state, or 

Ruic 4(b) commonwealth, a.s amended from time to 

time by that ct. except a! otherwise provided 

by speclnc Ruic of this Ct after 

consideration of comments by rep's of bar 

associations within the state or 

commonwe!lth. 

2nd 

Ruic 

46(hX2) 

3rd 

App. D 

CHARTTIIREE 

RULES OF PROFESSIONAL CONDUCT IN TIIE FEDERAL CIRCUIT COURTS 

Mey 24, 199S 

REFERS TO A MODEL RULE 

ADA Model Rules ADA Model Code Olher 

The ct may refer to the 

Committee any accusation 

or evidence of misconduct 

by wey of vlol,tion of the 

dlsclpllna,y rules under 

the Code of Profession,! 

Responsibility 

No Local Rule 

1 

Local Ruic: Rtftrs Ntllhcr co 

St1tc Rules nor 1n ADA 

Mod,! 

Adopted the Rules of 

Dlscpllna.ry Enforcement; Ruic 

2 states that the ct must look to 

FRAP, the rules and Internal 

operating prpcedurcs of the Ct,, 

or other Instruction of the cl... 

or any other conduct 

unbecoming a member of the 

court ? 

--l 

V, 
REFERS TO A MODEL RULE 

Cir. REFERS TO STATE RULES ADA Modtl Rulu ADA Modtl Code Other 

4th 

5th 

6th The ct may impose discipline on The cl may Impose 

any member who engages In discipline on any member 

Ruic conduct violating the Canons of who engages In conduct 

32(b) Ethics or the Model Rules of vlolaling the Canon, of 

Professional Conduct Ethics or tho Model Rules 

of Professional Conduct 

7th 

App. l11 

No Local Rulo 

Internal Operating 

Procedure Rule 46.6 

(a)(3): Rules of Prof. 

Conduct or Resp. In eff,c 

in Lie state or other 

Jurisdiction In which the 

atty maintains his or her 

principal office, the 

FRAP, the local rules and 

internal operating 

procedures ofthls Ct. or 

orders or other 

Instructions of this Ct. 

No Local Ruic: "II Is 

longs!Mdlng court 

practice to look to and 

follow the ethical rule$ 

adopted by the highest 

court in the state of the 

atty's domicile, while 

always being mindful of 

tho ADA Model Rules" 

(clerk's office) I 

Local Rule: R,r,n Neither to 

Stat, Rule, nor an ADA 

Modtl 

S!Mdards of Prof. Conduct 

within the 7th Judlclol Circuit 

2 

i 

-..J 

,,a-
3 

REFERS TO A MODEL RULE 

Local Rule: Refers Ntlther to 

Cir, REFERS TO STATE RULES No Lotal Rule State Rules nor an ADA 

ADA Model Rule, ADA Model Code Other Model 

8th Internal Operallng 

Procedure Rule II D: 

attys may be disciplined 

for failure to comply with 

FRAP or 8th Cir. Rules. 

Clerk's office slated that 

Issues are sent to a panel 

of 8th Cir. judges; 

detcnninetions made on 

an case-by-case basis. 

9th No Local Ruic: Ct cites t< 

cases that exist (clerk's 

office) 

10th Conduct unbecoming a member of the bar 

which violates the federal laws, federal 

Add, Ill statutes, FRAP, rules of this ct. orders or 

Sect. 2.3 other instructions of this ct. or" the Code of 

Prof. Resp. adopted by the highest ct of any 

state in which the atty Is admitted to practice 

11th FRAP, the ct's local rules, the ADA Model FRAP, the ct's local rules, the ADA 

Rules of Prof. Cond,, and the rules of prof. Model Rules of Prof. Cond., and 

Add. VIII cond. adopted by the highest ct of the the rules of prof. cond. ad.opted by 

Rule IA st.ate(s) in which the atty Is admitted to the highest ct of the state(s) In 

practice to the extent that those state rules which the atty Is admitted to 

arc nol inconsistent with the ABA Model practke to the ext~nl that those 

Rules of Prof. Cond., In which case the state rules arc not 'Inconsistent with 

model rules shall govern. the ABA Model Rules of Prof. 

Cond., In which case the model 

rules shall govern. 

"C 

~ (1) 

:::l 

APPENDIX IV 

9 Geo. J. Legal Ethics 89, Georgetown Journal of Legal Ethics, 

Fall, 1995, Symposium, Multiforum Federal Practice: Ethics and Erie, 

Linda S. Mullenix [not reprinted here] 

Page 79 

------~a:ce·=--- ~'=':-'~---- --=,,-----' 

APPENDIXV 

Federal Rules of Disciplinary Enforcement 

Model Rule (4) as proposed by the Committee on 

Court Administration and Case Management, 

Judicial Conference of the United States. 

From "Rules of Disciplinary Enforcement" (1978) 

Also: "The Federal Rules of Disciplinary Enforcement" 

as adopted by the United States District Court for the 

Western District of Virginia, November 4, 1992. 

Page 81 

Page 83 

APPENDIX V 

Proposed Model Local Rule, Committee on Court Administration and Case 

Management, Judicial Conference in the United States. From "Rules of 

Attorney Disciplinary Enforcement" (1978). 

MODEL RULE (4) 

Standards for Professional Conduct 

A. For misconduct defined in these Rules, and for good cause shown, and 

after notice and opportunity to be heard, any attorney admitted to practice before this 

Court may be disbarred, suspended from practice before this Court, reprimanded or 

subjected to such other disciplinary action as the circumstances may warrant. 

B. Acts or omissions by an attorney admitted to practice before this Court, 

individually or in concert with any other person-or persons, which violate the Code 

of Professional Responsibility [or Rules of Professional Conduct]- adopted by this 

Court shall constitute misconduct and shall be grounds for discipline, whether or 

not the act or omission occurred in the course of an attorney-client relationship. 

The Code· of Professional Responsibility [or Rules of Professional Conduct]** 

adopted by this court is the Code of Professional Responsibility [or Rules of 

Professional Conduct]** adopted by the highest court of the state in which this Court 

sits, as amended from time to time by that state court, except as otherwise provided 

by specific Rule of this Court after consideration of comments by representatives of 

bar associations within the state. 

•• Bracketed language is commonly found in Districts using this model rule after the adoption of the 

ABA Model Rules of Professional Conduct in 1983. 
Page 84 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF VIRGINIA 

FEDERAL RULES OF DISCIPLINARY ENFORCEMENT 

The United States District Court for the Western District of 

Virginia, in furtherance of its inherent power and responsibility to 

supervise the conduct of attorneys who are admitted to practice before 

it, or admitted for the purpose of a particular proceeding (pro hac 

vice) , promulgates the following Rules of Disciplinary Enforcement 

superseding all of its other rules pertaining to disciplinary 

enforcement heretofore promulgated. 

Rule I 

Attorneys Convicted of Crimes 

A. Upon filing with this court of a certified copy of a judgment of 

conviction demonstrating that any attorney admitted to practice 

before the court has been convicted in any Court of the United 

States, or the District of Columbia, or of any state, territory, 

commonwealth or possession of the United States of a serious crime 

as hereinafter defined, the Court shall enter an order immediately 

suspending that attorney, whether the conviction resulted from a 

plea of guilty, or nolo contendere or from a verdict after trial or 

otherwise, and regardless of . the pendency of any appeal, until 

final disposition or a disciplinary proceeding to be commenced upon 

such conviction.· A copy of such order shall immediately be served. 

upon the attorney. Upon good cause shown, the Court may set aside 

such order when it appears in the interest of justice to do so. 

B. The term "serious crime" shall include any felony and any lesser 

crime a necessary element of which, as determined by the statutory 

or common law definition of such crime is the jurisdiction where 

the judgment was entered, involves false swearing, 

misrepresentation, fraud, willful failure to file income tax 

returns, deceit, bribery, extortion, misappropriation, theft, or 

any attempt or a conspiracy of solicitation of another to commit a 

"serious crime." 

C. A certified copy of a judgment of conviction of an attorney for any 

crime shall be conclusive evidence of the commission of that crime 

in any disciplinary proceeding instituted against that attorney 

based upon the conviction. 

D. Upon the filing of a certified copy of a judgment of conviction of. 

any attorney for a serious crime, the Court shall in addition to 

suspending that attorney in accordance with the provisions of this 

Rule, also refer the matter to counsel for the institution of a 

disciplinary proceeding before the Court in which the sole issue to 

be determined shall be the extent of final discipline to be imposed 

as a result of the conduct resulting in the conviction, provided 

that a disciplinary proceeding so instituted will not be brought to 

final hearing until all appeals from the conviction are concluded. 
r 

E. 

F. 

G. 

Page 85 

Upon the filing of a certified copy of a judgment of conviction of 

an attorney for a crime not constituting a "serious crime", the 

court may refer the matter to counsel for whatever action counsel 

may deem warranted, including the institution of a disciplinary 

proceeding before the court provided however, that the court may in 

its discretion make no reference with respect to convictions for 

minor offenses. 

An attorney suspended under the provisions of this Rule will be 

reinstated immediately upon the 'filing of a certificate 

demonstrating that the underlying conviction of a serious crime has 

been reversed but the reinstatement will not terminate any 

disciplinary proceeding then pending against the attorney, the 

disposition of which shall be determined by the Court on the basis 

of all available evidence pertaining to both guilt and the extent 

of discipline to be imposed. 

No attorney, regardless of his ability to practice in the state 

courts, will be permitted to practice in this Court while that 

attorney is on federal probation or parole. 

Rule II 

Discipline Imposed by Other Courts 

A. Any attorney admitted to practice before this Court shall, upon 

being subjected to public discipline by any other Court of the 

United States or the District of Columbia, or by a court of any 

state, territory, commonwealth or possession of the United States, 

promptly inform the Clerk of Court of such action. 

B. Upon the filing of a certified or exemplified copy of a judgment or 

order demonstrating that any attorney admitted to practice before 

this Court has been disciplined by another court, this Court shall 

forthwith issue a notice directed to the attorney containing: 

1. a copy of the judgment or order from the court; and 

2.. an order to show cause directing the attorney inform this 

Court within 30 days after service of that order upon the 

attorney, personally or by mail, of any claim by the 

attorney predicated on the grounds set forth in (D) 

hereof that the imposition of the identical discipline by 

the Court would be unwarranted and the reasons therefor. 

C. In the event that discipline imposed in the other jurisdiction has 

been stayed there, any reciprocal discipline imposed by this Court 

shall be deferred until the stay expires. 
Page 86 

D. Upon the expiration of 30 days from the service of the notice 

issued pursuant to the provision of (B) above, this Court shall 

impose the identical discipline unless the respondent/attorney 

demonstrates, or this Court finds, that upon which the discipline 

in another jurisdiction is predicated it clearly appears: 

1. that the procedure was so lacking 

opportunity to be heard as to constitute 

due process; or 

in notice of 

a deprivation of 

2. that there was such an infirmity of proof establishing 

the misconduct as to give rise to the clear conviction 

that this Court could not, consistent with its duty 

accept as final the conclusion on that subject; or 

3. that the imposition of the same discipline by this Court 

would result in grave injustice; or 

4. that the misconduct established is deemed by this Court 

to warrant substantially different discipline. 

When this Court determines that any of the said elements exist, it 

shall enter such other order as it deems appropriate. 

E. In all other respects a final adjudication in another court that an 

attorney has been guilty of misconduct shall establish conclusively 

that misconduct.for purposes of a disciplinary proceeding in the 

Court of the United States. 

RULE III 

Disbarment on Consent or Resignation in Other Courts 

A. Any attorney admitted to practice before this Court who shall be 

disbarred on consent or resign.from.the bar.of any other Court of 

the United States or the District of Columbia, or from the bar of 

any state, territory, commonwealth or possession of the United 

States while an investigation into the allegations of misconduct is 

pending, shall, upon the filing with this Court of a certified or 

exemplified copy of the judgment or order accepting such disbarment 

on consent or resignation, cease to be permitted to practice before 

this Court. 

B. Any attorney admitted to practice before this Court shall, upon 

being disbarred on consent or resigning from the bar of any other 

Court of the United States or the District of Columbia, or from the 

bar of any state, territory, commonwealth or possession of the 

United States while an investigation into the allegations of 

misconduct is pending, promptly inform the Clerk of this Court of 

such disbarment on consent or resignation. 
:-"jRule IV 

Standards for Professional Conduct 

A. For misconduct defined in these rules, and for good cause shown, 

and after notice and opportunity to be eard, any attorney admitted 

to practice before this Court may b disbarred, suspended from 

practice before this Court, repriman d or subjected to such other 

disciplinary actions as the circumst nces may warrant. 

B. Act or omissions by an attorney ad itted to practice before this 

Court, individually or in concert ith another person or persons, 

which violate the Code of Profess· nal Responsibility or Rules of 

Professional Conduct adopted b this Court shall constitute 

misconduct and shall be grounds fr discipline, whether or not the 

act or omission occurred in t e course of an attorney-client 

relationship. The Code of Profe sional Responsibility or Rules of 

Professional Conduct adopted by the highest court of the state in 

which this Court sits, as amended from time to time by that state 

court, except as otherwise provided by specific Rule of this Court 

after specific consideration of comments by representatives of bar 

associations within the state. 

RULE V 

Disciplinary Proceedings 

· A. When misconduct or allegations of misconduct which if 

substantiated, would warrant discipline on the part of an attorney. 

admitted to practice before this court shall come to the attention 

of a Judge of this Court, whether by complaint or otherwise, and 

the applicable procedure, is not otherwise mandated by these rules, 

the judge shall refer the matter to counsel for investigation and 

the prosecution of a formal disciplinary proceeding or the 

formulation of other such recommendation as may be appropriate. 

B. Should counsel conclude after investigation and review that a 

formal disciplinary proceeding should not be initiated against the 

respondent/attorney because sufficient evidence is not present, or 

because there is pending another proceeding against the 

respondent/attorney, the disposition of which in the judgment of 

counsel should be awaited before further action by this Court.be 

considered for any other valid reason, counsel shall file with the 

court a recommendation for disposition of the matter, whether by 

dismissal, admonition, deferral, or otherwise setting forth the 

reasons therefor. 

c. To initiate formal disciplinary proceedings, counsel shall obtain 

an order of this Court upon a showing of probable cause requiring 

the respondent/attorney to show cause within 30 days after service 

of that order upon the attorney, whether personally or by mail, 

why the attorney should not be disciplined. The order to show 

cause shall include the form certification of all courts before 

which the respondent/attorney is admitted to practice as specified 

in form appended to these Rules. 
j 

Ii 

I, 

Page 88 

D. Upon the respondent/attorney's answer to the order to show cause, 

if any issue of fact is raised or the respondent/attorney wishes to 

be heard in mitigation this court shall set the matter for prompt 

hearing before one or more of the judges of this Court, provided 

however, that if the disciplinary proceeding is predicated on the 

complaint of a Judge of this Court, the hearing shall be conducted 

before a panel of three judges of this Court appointed by the chief 

judge, or if there are less than three judges eligible to serve or 

the chief judge is the complainant, by the Chief Judge of the Court 

of Appeals for this Circuit. The respondent/attorney shall execute 

the certification of all courts before which the 

respondent/attorney is admitted to practice, in the form specified, 

and file the certification with his or her answer. 

Rule VI 

Disbarment on Consent while under Disciplinary 

Investigation or Prosecution 

A. Any attorney admitted to practice before this Court who is the 

subject of an investigation into or a pending proceeding involving 

allegations or misconduct may consent to disbarment, but only by 

delivering to this court an affidavit stating that the attorney 

desires to consent to disbarment and that: 

1. the attorney's consent is freely and voluntarily 

rendered; the attorney is not being subjected to 

coercion, or duress; the attorney is fully aware of the 

implications of so consenting; 

2. 

3. 

.the attorney is aware that there is a presently pending 

investigation or proceeding involving allegations that 

there exists grounds for the attorney's discipline the 

nature of which the attorney shall specifically set 

forth; 

the attorney acknowledges that the material facts so 

alleged are true; and 

4. the attorney so consents because the attorney knows that 

if charges were predicated upon the matters under 

investigation, or if the proceeding were prosecuted, the 

attorney could not successfully defend himself. 

B. Upon receipt of the required affidavit, this Court shall enter 

an Order barring the attorney. 

C. The order disbarring the attorney on consent shall be a matter 

of public record. However, the affidavit required under the 

provisions of this Rule shall not be publicly disclosed or 

made available for use in any other proceeding except upon 

order of this Court. 
Page 89 

Rule VII 

Reinstatement 

A. AFTER DISBARMENT OR SUSPENSION. An attorney suspended for 

three months or less shall be automatically reinstated at the 

end of the period of suspension upon the filing with the Court 

of an affidavit of compliance with the provisions of the 

order. An attorney suspended for more than three months or 

disbarred may not resume practice until reinstated by order of 

this Court, except as provided in Rule XI(H), 

B. TIME OF APPLICATION FOLLOWING DISBARMENT. A person who has 

been disbarred after hearing or by consent may not apply for 

reinstatement until the expiration of at least five years from 

the effective date of disbarment. 

C. HEARING ON APPLICATION. Petitions for reinstatement by a 

disbarred or suspended attorney under this Rule shall be filed 

with the Chief Judge of this Court. Upon receipt of this 

petition, the Chief Judge shall promptly refer the petition to 

counsel and assign the matter for prompt hearing before one or 

more judges of this Court, provided however that if the 

disciplinary proceeding was predicated on the complaint of a 

judge of this Court, or if there are less than three judges 

eligible to serve or the Chief Judge was the complainant, by 

the Chief .Judge for the Court of Appeals for this Circuit. 

The Judge or Judges assigned to this matter shall within 

thirty days after referral schedule a hearing at which the 

petitioner shall have the burden of demonstrating by clear and 

convincing evidence that he has the moral qualifications, 

competency and learning in the law required for admission to 

practice law before this court and that his resumption of the 

practice of law will not be detrimental to the integrity and 

standing of the bar or to the administration of justice, or 

subversive of the public interest. 

D. DUTY OF COUNSEL. In all proceedings upon a petition for 

reinstatement, cross examination of witnesses of the 

respondent/attorney and the submission of evidence, if any, in 

opposition to the petition shall be conducted by counsel. 

E. 

F. 

DEPOSIT FOR COSTS OF PROCEEDING. Petitions for reinstatement 

under this Rule shall be accompanied by an advance cost 

deposit in an amount to be set from time to time by the Court 

to cover anticipated costs of the reinstatement proceedings. 

CONDITIONS OF REINSTATEMENT. If the petitioner is found unfit 

to resume the practice of law, the petition shall be 

dismissed. If the petitioner is found fit to resume the 

practice of law, the judgment shall reinstate him, provided 

that the judgment may make reinstatement conditional upon the 

payment of all or part of the costs of the proceedings and 

upon the making of a partial or complete restitution to the 
i' 

I 

I 

Ji 

I' 

Page 90 

parties harmed by petitioner whose conduct led to the 

suspension or disbarment. Provided further, that if the 

petitioner has been suspended or disbarred for five years or 

more, reinstatement may be conditioned, in the discretion of 

the Judge of Judges before whom the matter is heard, upon the 

furnishing of proof of competency and learning in the law, 

which proof may include certification by the bar examiners of 

a state or other jurisdiction of the attorney's successful 

completion of an examination for admission to practice 

subsequent to the date of suspension or disbarment. 

G. SUCCESSIVE PETITIONS. No petition for reinstatement under 

this Rule shall be filed within one year following an adverse 

judgment upon a petition for reinstatement filed by or on 

behalf of the same person. 

Rule VIII 

Attorneys Specially Admitted 

Whenever an attorney applies to be admitted or is admitted to this 

Court for purposes of a particular proceeding (pro· hac vice) , the 

attorney shall be deemed thereby to have conferred disciplinary 

jurisdiction upon this Court for any alleged misconduct of that attorney 

arising in the course of or in the preparation for such proceeding. 

Rule IX 

Service of Papers and Other Notices 

Service of an order to show cause instituting a formal disciplinary 

proceeding shall be made by personal service or registered or certified 

mail addressed to the respondent/attorney at the address shown in the 

most recent registration filed pursuant to Rule XI(F) hereof. Service 

of any other papers or notices required by these rules shall be deemed 

to have been made if such paper or notice is addressed to the 

respondent/attorney at the address shown on the most recent registration 

statement filed pursuant to Rule XI (F) hereof; or to counsel or 

respondent's attorney at the address indicated in the most recent 

pleading or other document filed by them in the course of any 

proceeding. 

Rule X 

Appointment of Counsel 

Whenever counsel is to be appointed pursuant to these rules to 

investigate allegation of misconduct or to prosecute disciplinary 

proceedings or in conjunction with a reinstatement petition filed by a 

disciplined attorney, this Court shall appo~nt as counsel the 

disciplinary agency of the highest court of the Commonweal th of· Virginia 

wherein the Court sits or the attorney maintains his principal office in 

the case of the courts of appeal, or other disciplinary agency having 

jurisdiction. If no such disciplinary agency exists, or such 
' F, -.,, 

:,-;:,: 

ti::-, 

[//•· 

I~{. 

Page 91 

disciplinary agency declines appointment or such appointment is clearly 

inappropriate, this Court shall appoint as counsel one or more members 

of the bar of this Court to investigate allegations of misconduct or to 

prosecute disciplinary proceedings under these rules, provided however 

that the respondent attorney may move to disqualify an attorney so 

appointed who is or has been engaged as an adversary of the 

respondent/attorney in any matter. Counsel, once appointed, may not 

resign unless permission to do so is given by the Court. 

Rule XI 

Periodic Assessment of Attorneys; Registration Statements 

Note-.-Each court shall make such provisions as it deems advisable 

for the assessment and registration of attorneys. Any fees collected 

should be maintained in a separate fund held by the Clerk of Court, as 

trustee, for the payment, pursuant to Rule XII, of expenditures 

incurred, and not on behalf of the United States. 

Rule XII 

Payment of Fees and Costs 

Note--Each court may make such provision as it deems advisable for 

the payment of fees and costs incurred in the course of disciplinary 

investigation or pr.osecution. 

Rule XIII 

Duties of the Clerk 

A. Upon being informed that an attorney admitted to practice 

before this Court has been convicted of any crime, the Clerk 

of this Court shall determine whether the Clerk of the Court 

in which such conviction occurred has forwarded a certificate 

of such conviction to this Court. If a certificate has not 

been so forwarded, the Clerk of this Court shall promptly 

obtain a certificate and file it with this Court. 

B. Upon being informed that an attorney admitted to practice 

before this Court has been subjected to discipline by another 

court, the Clerk of Court shall determine whether a certified 

or exemplified copy of the disciplinary judgment or order has 

been filed with this Court, and if not, the Clerk shall 

promptly obtain a certified or exemplified copy of the 

disciplinary judgment or order and file it with this Court. 

C. Whenever it appears that any person convicted of any crime or 

disbarred or suspended or censured or disbarred on consent by 

this Court is admitted to practice law in any other 

jurisdiction or before any other court, the Clerk of this 

Court shall within ten days of that conviction, disbarment, 

suspension, censure or disbarment on consent, transmit to the 
l 

l 

J 

I 

I 

Page 92 

disciplinary authority in such other jurisdiction or for such 

other court, a certificate of the conviction or a certified 

exemplified copy of the judgment or order of disbarment, 

suspension, censure or disbarment on consent, as well as the 

last known office and residence addresses of the defendant or 

respondent. 

D. The Clerk of Court shall likewise promptly notify the National 

Discipline Data Bank operated by the American Bar Association 

of any order imposing public discipline upon any attorney 

admitted to practice before this Court. 

Rule XIV 

Jurisdiction 

Nothing contained in these Rules shall be construed to deny to this 

Court such powers as are necessary for the Court to maintain control 

over proceedings conducted before it such as proceedings for contempt 

under Title 18 of the United States Code or under Rule 42 of the Federal 

Rules of Criminal Procedure. 

Rule XV 

Effective Date 

These rules as revised, shall become effective on November 4, 1992, 

provided that any formal disciplinary proceeding pending before this 

Court shall be concluded under the procedure existing prior to the 

effective date of these rules. 

ENTERED FOR THE COURT: 

Isl James C. Turk 

CHIEF UNITED STATES DISTRICT JUDGE 
ii 

if 

APPENDIX VI 

Draft Rule Proposed by the 

Illinois State Bar Association 

February 14, 1995 

Page 93 

DRAFT RULE FOR ADOPTION BY 

FEDERAL COURTS 

Page 95 

REGARDING DISCIPLINARY PROCEEDINGS FOR VIOLATION OF RULES 

OF PROFESSIONAL CONDUCT OR CODE OF PROFESSIONAL RESPONSIBILITY 

1. a) When conduct is brought to the attention of a 

federal judge that an attorney, in the course of his or her 

practice in the federal court in which that judge is sitting, who 

is licensed to practice law by the state in which the court is 

sitting has or may have violated the Rules of Professional Conduct 

or Code of Professional Responsibility adopted by the Court, or if 

no such Rules or Code have been adopted by the Court, the Rules of 

Professional Conduct or the Code of Professional Responsibility 

adopted by the state in which the Court is sitting, the judge may, 

with the consent of the disciplinary authority, refer the matter to 

the disciplinary authority of the state in which the Court is 

sitting for investigation, hearing., findings and recommendations 

and further disposition. 

b) Upon receipt of such findings and/ or recommendations, the 

Court may issue a rule to show cause why the attorney should not be 

disciplined by the Court and an appropriate disciplinary order 

entered. Such order shall be in addition to and not in lieu of any 

other remedies available to the Court, such as, but not limited to, 

contempt proceedings and appropriate sanctions in pending 

litigation. 

2. When conduct is brought to the attention of a federal 

judge that an attorney, in the course of his or her practice in the 

federal court, who is not licensed to practice by the state in 

which the court is sitting, has or may have violated the Rules of 

Professional Conduct or the Code of Professional Responsibility 

adopted by the Court, or if no such Rules or Code have been adopted 

by the Court, the Rules of Professional Conduct qr Code of 

Professional Responsibility adopued by the state in which the Court 

is sitting, the Court may proceed in accordance with Section 1 of 

this Rule, but may in addition: 

a) Appoint as a commissioner or commissioners of the Court 

the disciplinary authority of the state in which the Court is 

sitting or any other person or persons as a commissioner or 

commissioners to investigate, hear, make findings, and/or 

recommendations, and report back to the Court. 

b) Forward to the disciplinary authority of the state or 

states which have licensed the attorney the findings and/or 

recommendations of the commissioner or commissioners and the 

disciplinary order of the Court for such action as such 

disciplinary authority may deem proper. 

Special Study Conference of Federal Rules 

Governing Attorney Conduct 

Los Angeles, California 

January 9 - 10, 1996 

Page 97 

I I 

Page 99 

I. INTRODUCTION 

First, a brief historical note. The Report on Local Rules Regulating Attorney 

Conduct in the Federal Courts (hereafter the Report) was presented to the meeting 

of the Committee on Rules of Practice and Procedure on July 5, 1995. That Report 

described four basic options in its Section VII "Conclusion: Practical Choices." One 

was to adopt a "national standard" for attorney conduct in all federal courts, possibly 

in the form of the ABA Model Rules adapted to federal practice - although an 

entirely new "federal code of conduct," as proposed by Professor Green in Appendix 

IV, attached, would also fit this "model." A second approach would be to adopt a 

national rule which always looked to the state standards in which a federal district 

court was located. A third option was to propose a "uniform model local rule," 

similar to that first proposed by the Committee on Court Administration and Case 

Management in 1978, and set out in Appendix V of the Report. The fourth option 

was. to do nothing, and hope that matters would improve on their own. The 

Reporter attempted to be neutral between the first three options, but did strongly 

oppose the fourth option, "do nothing," on the basis of strong evidence that a 

deteriorating "balkanized" system was wasting the time of federal courts and 

causing genuine hardship to practitioners and their clients. 

Following the Report's discussion, there was a vote to hold a special "Study 

Conference," to precede the next Standing Committee meeting in January, 1996. 

The Chairman of the Standing Committee, the Honorable Alicemarie H. Stotler, 

also directed the Reporter to investigate certain important questions, namely: 

1. How frequently have issues involving problems of attorney conductactually arisen in recent reported federal cases? 

2. Which rules governing attorney conduct, if any, were involved in 

these cases? 

3. Were there some categories of rules that were more frequently 

involved than others? Were there other categories of rules that were 

rarely, if ever, involved in federal cases? 

In addition, the Chairman also request the Federal Judicial Center to do a long range 

study as to how many federal district courts require lawyers to be members of the bar 

of the relevant state, how many lawyers who appear in federal courts are in fact 

members of the relevant state bar, and whether such lawyers appear principally in 

federal courts or in the courts of the state in which the district court sits. The first 

part of this study is now completed. See Eligibility Requirements for, and 

Restrictions on, Practice before the Federal District Courts (November 7, 1995). 

II. METHODOLOGY 

A major computer search was designed using the Descriptive-Word Index of 

the Federal Practice Digest and the Westlaw data base. Thirty five key numbers were 

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\ 

Page 100 

identified that closely tracked attorney conduct rules, and key words, phrases, and 

numbers were also employed. Initially, a restriction date of 1985 was used, but this 

produced an unmanageably large number of cases. Even the selected restriction date 

of January 1, 1990 produced a very large number of cases, 851. 

A team of two devoted research assistants, James J. G. Dimas and Thomas J. 

Murphy, working with the assistance of the prior work of Thomas Burton and 

Rebecca Lampert, began to read every case. It soon became dear that our research 

method was very accurate - and in the end 443 of the 851 cases located proved to 

involve rules governing attorney of the kind discussed in the July 5, 1996 Report. 

(The other 408 involved issues of attorney conduct in federal courts governed by 

Rule 11 and other standards. See Appendix III-. Break Down of Recent Federal 

Cases (1990-1995) Involving: Rule 11 and Other "Attorney Issues" Not Counted in 

the Survey). In addition, checks were done to see if any relevant cases escaped the 

net. For example, every case cited by Professor Mullenix's article in the Report, 

Appendix IV was checked, and every case cited in the Report, as well as other 

surveys. All such cases had been picked up by the system. 

_Next a painstaking description of each case was prepared, with a summary of 

the facts, the attorney conduct in question, the relevant rules cited, the relevant key 

numbers, the eventual decision, and other data. These 851 standardized 

descriptions form the basic data base of the project. See Illustration 1. attached. At 

this point, a decision was made as to which "category" of rule was chiefly involved 

in each dispute. Again, 408 were "discarded" into Appendix III because they did not 

directly involve local rules governing attorney conduct. In addition, where the local 

model was not based on the ABA Model Rules, the rules were "translated" into the 

Model Rule categories of Chart I, Appendix I, using a system similar to the 

comparative table on page 128 of West's Selected Statutes, Rules and Standards of 

the Legal Profession (1995 ed.). Of course, this was a "rough" fit, but it permits 

comparing "apples with apples" - and a review of individual cases showed that the 

"rough fit" was more than adequate for the purposes of this study. In addition, a 

separate table was prepared of just those cases involving local rules based on the 

ABA Code of 1969. This involved 144 cases, and is set out as Chart II in Appendix II. 

In addition, civil and criminal cases were broken out on Chart I, Appendix I. 

III. FINDINGS 

Although this study took many hundreds of hours of complex work, the 

results are unmistakable and simple. 

First, by far the largest category of rules involved in federal disputes 

involving attorney conduct were conflict of interest rules. Rules analogous to ABA 

Model Rules 1.7, 1.8, 1.9, 1.10, and 1.11 accounted for 46.0% of reported federal 

disputes, or 204 cases of 443. The next largest category, rules involving 

communication with represented parties, (equivalent to Model Rule 4.2) accounted 

for only 10.6%, or 47 cases. The bulk of conflict of interest cases were civil, 163 out of 

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Page 101 

204 or 79.9%, but the number of criminal cases with conflict of interest issues were 

also substantial, 41. See Charts I, II, and III in Appendices I, II and III. 

In contrast, important categories within the ABA Model Rules, such as 

"Confidentiality of Information" were practically absent, despite the prominence of 

Model Rule 1.6 in ethical controversies. There were only 9 civil cases involving 

confidentiality issues, and 5 criminal cases, for a total of 14, or 3.1 % of the total. 

There were only two cases involving the controversial Rule 1.13 (Organization as 

Client) and corporate confidentiality. This is not to say that issues of professional 

confidence do not arise frequently in federal cases, but rather that such problems are 

not resolved in the federal courtroom. 

There were only two other categories, beside conflict of interest, that even 

barely exceeded 10%: 1) "Lawyer as Witness" 10.1 % or 45 cases (Model Rule 3.7 

equivalent) and 2) "Communication with Represented Parties" 10.6% or 47 cases 

(Model Rule 4.2 equivalent). Given the recent controversies relating to Model Rule 

4.2 and Department of Justice's new internal regulations promulgated in 28 C.F.R. 77 

(1994), the large "Communication with Represented Parties" category should be 

expected. Perhaps more surprising, however, is that the "Represented Parties" issue 

occurred frequently outside criminal prosecutions. Indeed, 65.9% of the cases (31) 

were civil cases, and only 34.1 % (16) were criminal. We are currently reviewing the 

data base to see how many cases involved the Department of Justice, but it appears 

to be only 14 of these cases, all criminal. See Chart J, Appendix I. It is also 

interesting to note that pro):>lems of dealing with unrepresented parties (Model Rule 

4.3 issues) were, in contrast, very rare. Only 1.3% of the data base (6 cases), reflected 

these issues, with two thirds being civil cases (4). 

"Lawyer as Witness" cases were also predominately civil, with 80.0% (36) civil 

cases as opposed to 20% (9) criminal. More work is being done on the cases in this 

data base to see why this issue, with 10.1 % or 45 cases, arose more frequently than 

other general litigations issues in federal court. For example, issues involving 

"Declining or Terminating Representation" (Model Rule 1.16) constituted only 1.3% 

of the data base (6 cases); "Candor toward the Tribunal" (Model Rule 3.3), only 2.0% 

(9 cases); and "Fairness to Opposing Party" (Model Rule 3.4) only 2.9% (13 cases). In 

fact, all other categories constituted, individually, fewer than 3% of the cases, except 

for one, "Fees." 

"Fees," Model Rule 1.5 type issues, were found in 21 cases, or 4.8% of the data 

base, with all but one case on the civil side. While this is a very small category 

compared to "Conflict of Interest" - only one tenth the cases - it is the fourth 

most common area of activity, and has been the focus of certain leading cases, such 

as In re Rufus Cook,_ F.3d _ (1995) 1995 WL 73098 (7th Cir.). See discussion at 

Report, supra, pp 3, 40-41. Many of these fee cases involved the familiarity of a 

federal trial judge with the proceedings of a specific case - making them more 

difficult issues to refer to state authorities than other tangential problems. 

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i 

Page 102 

The most remarkable fact about all the other categories is how infrequently 

they occurred in a federal context, if they occurred at all. Sixteen Model Rule 

categories never occurred in 5 years, despite the substantial number of federal cases 

involving attorney conduct. Many other categories were represented by no more 

than 4 cases, (or less than 1 %). See Chart I, Appendix I. Indeed, apart from the four 

most common categories (Conflict of Interest, Represented Parties, Lawyer as 

Witness and Fees), the total of all remaining categories was only 126 cases, or 28%. 

A number of commentators have suggested that certain rule categories 

should have "custom made" federal rules for policy reasons. See, for example, the 

article by Professor Bruce Green ''Whose Rules of Professional Conduct Should 

Govern Lawyers in Federal Court and How Should the Rules be Created?" attached 

as Appendix IV to this study, and that by Professor Linda S. Mullenix ''Multiforum 

Federal Practice: Ethics and Erie" attached as Appendix IV to the original Report. 

Amcmg the categories mentioned other than those already discussed are "Choice of 

Law" (Model Rule 8.5 issues), "Confidentiality" (Model Rule 1.6 issues), "Declining 

on Terminating Representation" (Model Rule 1.16 issues), "Moratorium Claims" 

(Model Rule 3.1 issues), "Candor Toward Tribunal and Fairness to Opposing Party" 

(Model Rule 3.3 and 3.'! issues), and "Prosecutorial Responsibility" (Model Rule 3.8 

issues). If these common litigation issues are added to the four predominate issues 

discussed above, the remaining cate.gories would have constituted only 6_1 cases, or 

13.7% of the data base. 

A very large number of these remaining 61 cases also fall into traditional 

"state" areas, such as "Unauthorized Practice of Law" (Model Rule 5.5 issues) or 

hard-core attorney dishonesty, often appearing as"'Misconduct" (Model Rules 8.4 

issues). These are, in practice, frequently referred to state agencies. 

IV. CONCLUSIONS: A POTENTIAL "FIFTH OPTION?" 

In the original Report. I described four options: 

1. 

2. 

3. 

4. 

A "National Standard" for Federal Courts, i.e. A Complete Code of 

Conduct Adopted by National Federal Rule; 

A "State Standard" for Federal Courts, i.e. A National Uniform Federal 

Rule Adopting the State Standards of the Relevant State; 

A "Model Local Rule," i.e. A Voluntary Local Model Rule similar to 

the "Federal Rules of Disciplinary Enforcement, Model Rule 4," (as 

promulgated by the Committee on Court Administration and Case 

Management in 1978 and adopted, in whole or part, by 15 of the 94 

districts); 

Status Quo, i.e. "Do Nothing" 

This Study presents the basis for another possibility: adopting uniform national 

federal rules for attorney conduct only in certain key areas, and then stipulating that 

all other cases be governed by state standards. Obvious candidates for "national" 

treatment would be the four most commonly occurring categories described above: 

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Page 103 

1) "Conflict of Interest," 2) "Represented Parties," 3) "Lawyer as Witness," and 

4) "Fees." This alone would cover 72% of all reported federal cases since 1990. See 

Section ill, supra. If "Choice of Law" and the other common litigation categories are 

added, 86.3% of all reported federal cases since 1990 would be covered. Stipulating 

that the remaining 13.7% be covered by state standards seems like a small 

concession, particularly since many of these cases are "Unauthorized Practice" and 

hard-core "Misconduct" cases, traditionally delegated to state enforcement agencies. 

See discussion in Section ill, supra. 

Such a "Fifth Option" of selected "focused" national rules would please some 

expert commentators. For example, Professor Mullenix's article attached as 

Appendix IV to the Report urges "a uniform code of professional responsibility for 

. ..federal practitioners," but also suggests "as a short-term alternati,v:e:" 1) a "uniform 

conflicts provision," 2) the development of means to distinguish between "core and 

collateral" professional responsibility issues, and 3) means for the "federal 

judidary ... to separate its attorney discipline functions from its adjudicatory role." 

See Report, Appendix IV, pp. 55-60. These aims could be largely achieved in a 

"focused" set of national rules, delegating some areas to state regulations, and 

retaining others. Professor Green's article, attached as Appendix IV to this Study, 

urges that the Judicial Conference should, through the Rules Enabling Act process, 

draft and adopt an entirely new and "independent set of detailed rules of conduct for 

lawyers practicing in federal court." In Green's view, these should not incorporate 

existing "bar association rules of professional conduct," such as the ABA Model 

Rules. See Appendix IV to this Study, pps. 98-100. The "Fifth Option" could be 

consistent with Green's goal, or not, as the Committee chooses. The "focused" 

federal rules could be "federalized" versions of the ABA Model Rules, or completely 

different. One thing is certain, however. Given the existing "balkanization" of 

professional standards in both state and federal courts described in detail in the 

existing Report, creating yet more, and different standards, would be better done in 

limited, narrow areas - rather than "across the board." This Study suggests such 

limited areas.' 

In all events, this Study establishes two important facts. First, problems 

relating to attorney conduct have consumed a very substantial amount of attention 

in federal courts in the last five years. Even the "Rule 11" and other cases listed in 

Chart Ill, Appendix ill are excluded, and there are 408 of these, there remain 443 

reported cases from January 1, 1990 to July 31, 1995. Of course, many attorney 

conduct problems are unreported. See, for example the D.C. Circuit's important 

recent opinion in Avianca Inc. v. Harrison, described in Bruce D. Brown's 

"Lamenting A Lost Precedent," Legal Times. November 6, 1995, page 6, which is 

• Of course, if this Committee recommends the entirely new federal "rules of conduct for lawyers" 

proposed by Professor Green, this Reporter would eagerly seize his place in history by creating an 

entirely new draft code. Whether this would be seen as a benefit to the hundreds of thousands of 

American lawyers and law students who have had to learn at least two other model systems, is open to 

debate. 
Page 10_9. 

available only on computer services, such as Lexis Counsel Connect. No matter 

how measured, attorney conduct issues are demanding a very substantial amount of 

federal court time. 

Second, this study suggests that most attorney conduct issues in federal courts 

fall :into relatively narrow categorie$. Nearly half of the relevant federal cases 

concern conflict of interest issues. If the next three most important categories are 

added (represented parties, lawyer as witness, and fees) nearly three quarters of the 

cases are accounted for. If "Choice of Law" and other "core" litigation categories are 

added, 86.3% of all reported federal cases would be covered. Large s_ections of both 

the ABA Code and the ABA Model Rules are never invoked in federal court, and 

vast sections are invoked only rarely. See Charts I and Il, Appendices I and Il. 

Again, this naturally suggests that focusing on the federal "trouble areas," and 

deferring the rest to state standards, is another viable option for this Committee. 

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Page 105 

ILLUSTRATION 1 

(Standard Form Report for Located Cases 1990-1995) 

Case Name: 

Citation: ____________________________ _ 

Area of Law: 

Attorney and Client (45) key #'s: 

Other relevant key #'s: 

Attorney conduct in question: 

Decision: 

Notes: _____________________________ _ 

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Page 107 

APPENDIX I 

Chart I- Break Down of Recent Federal Cases (1990-1995) by ABA Model Rule 

Total Cases: 443 

Page 109 

CHARTI 

.Ruk S!.!bj!;g matter a:ril Criminal Total 

1.1 Competence 2 0 2 

1.2 Scope of Representation 3 I 4 

1.3 Diligence I 3 4 

1.4 Communication 1 0 1 

1.5 Fees 20 1 21 

1.6 Confidentiality of Information 9 5 14 

1.7 Conflict of Interest: General 67 25 92 

1.8 Conflict of Int. Prohib. Trans. 7 1 8 

1.9 Conflict of Interest: Fmr. Client 71 5 76 

1.1 Imputed disqualification (Firm) 15 2 17 

l.ll Govt. to private employment 3 8 11 

TOTALS IN ABOVE FIVE CATEGORIES 163 41 204 

(CONFLICT OF INTEREST) 

1.12 Former Judge or Arbitrator 0 0 0 

1.13 Organization as Client 2 0 2 

1.14 Client Under a Disability 0 0 0 

1.15 Safekeeping Property 2 1 3 

1.16 Declining / Terminating Repr. 5 1 6 . 

1.17 Sale of Law Practice 0 0 0 

2.1 Advisor 0 0 0 

2.2 Intermediary 0 0 0 

2.3 Eval. for use by 3rd Persons 0 0 0 

3.1 Meritorious Claims/Contentions 9 2 ll 

3.2 Expediting Litigation 0 0 0 
Page 110 

Mod~! rule Subject Matter lli'.il Criminal Total 

3.3 Candor Toward the Tribunal 6 3 9 

3.4 Fairness to opposing party 13 0 13 

3.5 Impart. & Decorum of Tribunal 2 4 6 

3.6 Trial Publicity 0 3 3 

3.7 Lawyer as Witness 36 9 .. 45 

3.8 Special respons. of Prosecutor 1 4 5 

3.9 Advocate / Non adjudicative 0 0 0 

· •. 4.1 Truth in Statements to Others 0 2 2 

4.2 Comm. w. Pers. Rep. Couns. 31 16 47 

4.2 Cases Involving DOJ 0 14 14 

4.3 Dealing w/ Unrep. Person 4 2 6 

4.4 Respect for Rts. of 3rd Persons 1 0 1 

5.1 Resp. of Partner or Supervisor 0 0 0 

5.2 Resp. of Subordinate Lawyer 0 0 0 

5.3 Resp. Nonlawyer Assist. 0 0 0 

5.4 Professional Independence 4 0 4 

5.5 Unauthorized Practice of Law 5 1 6 

5.6 Restr. on Rt. to Practice 1 0 8 1 

5.7 Resp. Reg. Law Rel. Practice 0 0 0 

6.1 Voluntary Pro Bono Publico 0 0 0 

6.2 Accepting Appointments 0 0 0 

6.3 Member in Legal Svces. Org. 0 0 0 

6.4 Law reform I Client Interests 0 0 0 

7.1 Comm. Cone. Lawyer's Svces. 1 0 1 

7.2 Advertising 1 0 1 
Page 111 

7.3 Dir. Contact w/ Prospective Cl. 2 0 2 

Mod~I mle Subject matter Civil Criminal Total 

7.4 · Comm. of Fields of Practice I 0 1 

1.5 Firm Names & Letterheads 0 0 0 

8.1 Biμ- Admission & Disc. Matters 0 0 0 

8.2 Judicial & Legal Officials 2 1 .. 3 

8.3 Reporting Prof. Misconduct 1 0 1 

8.4 Misconduct 4 3 7 

8.5 Disc. Auth.: Choice of Law 6 1 7 

Totals 339 104 443 

Page 113 

APPENDIX II 

Chart II- Break Down of Recent Federal Cases (1990-1995) by ABA Code 

"DR Number" 

Total Cases: 144 

Page 115 

CHART II 

DR Number Subject Matter Covered by DR Number of Cases 

1-lOJ Maintaining Integrity & Competence 0 

1-102 Misconduct 4 

1-103 Disclosure of Information to Authorities 0 

2-101 Publicity 1 

2-102 Prof. Notices, Letterheads & Offices 0 

2-103 Recommendation of Prof. Employment 0 

2-104 Suggestion of Need of Legal Services 1 

2-105 Limitation of Practice 0 

2-106 Fee for Legal Services 11 

2-107 Division of Fees Among Lawyers 7 

2-108 Agreements Restricting Prac. of Lawyer l 

2-109 Acceptance of Employment 0 

2-110 Withdrawal from Employment 3 

3-101 Aiding Unauthorized Practice of Law 0 

3-102 Dividing Fees With Non-lawyer 3 

3-103 Forming Partnership with Non-lawyer 0 

4-101 Preserv. of Confidences & Secrets of Client 7 

5-101 Refusing Employment 11 

5-102 Withdrawal: Lawyer as Witness 25 

5-103 Avoid. Acquisition of Interest in Litigation 2 

5-104 Limiting Bus. Rel. w/ Client l 

5-105 Refusal of Employment (conflict of interest) 30 

5-106 Settling Similar Claims of Clients 1 

5-107 Avoid. Influences by Others than the Client 0 
Page 116 

DR Number Subject Matter Covered by DR Number of Cases 

6-101 Failing to Act Competently 0 

6-102 Limiting Liability to Client 0 

7-101 Representing Client Zealously 0 

7-102 Representing Client Within Law 1 

7-103 Perf. Duty of Prosecutor or Govt Lawyer 2 .. 

7-104 Comm. w/ Or,e of Advc= lnten:st (mcludingrq,n=,t,d party) 25 

7-105 Threatening Criminal Prosecution 1 

7-106 Trial Conduct 2 

7-107 Trial Publicity 0 

7-108 Comm. w/ or Investigation of Jurors 0 

7-109 Contact w/ Witnesses 2 

7-110 Contact w/ Officials 0 . 

8-101 Action as Public Official 0 

8-102 Statements: Judges & Other Adj. Officials 0 

8-103 Lawyer Candidate of Judicial Office 0 

9-101 Avoiding Even Appearance ofhnpropriety 2 

9-102 Preserv. Identity & Funds of Client 1 

TOTAL 144 
Page 117 

APPENDIX III 

Chart III - Break Down of Recent Federal Cases (1990-1995) Involving Rule 11 and 

Other "Attorney Issues" Not Counted in Survey 

Total Cases: 408 

... ~--------------------

) 

Page 119 

CHARTID 

BREAKDOWN OF RECENT FEDERAL CASES (1990-1995) INVOLVING RULE 11 

AND OTHER "ATTORNEY ISSUES" NOT COUNTED 1N SURVEY 

The courts in the cases (not including cases in the Bankruptcy Courts) discarded from our survey 

cited the following as the basis for decisions: 

Federal Rule of Civil Procedure 11: 91 cases 

Other Federal Rules of Civil Procedure: 24 cases 

•Includes: 

Rule 4 (Summons) 

Rule 12 (Defenses & Objections) 

Rule 16 (Pretrial Conferences) 

Rule 26 (General Provisions Governing Discovery; Duty ofDisclosure) 

Rule 28 (Before Whom Depositions May Be Taken) 

Rule 30 (Depositions upon Oral Examination) ·· 

Rule 36 (Requests for Admission) 

Rule 37 (Failure to Make or Cooperate in Discovery: Sanctions) 

Rule 38 (Jury Trial of Right) 

Rule 41 (Dismissal of Actions) 

Rule 52 (Findings by the Court; Judgment on Partial Findings) 

Rule 56 (Summary Judgment) 

Rule 59 (New Trials; Amendment of Judgments) 

Rule 70 (Judgment for Specific Acts; Vesting Title) · 

Rule 71 (Process in Behalf of and Against Persons Not Parties) 

Constitutional Amendments (Almost entirely Sixth Amendment (effective assistance 

of counsel); also the First Amendment (freedom of speech) cited only once; the Fifth 

Amendment (due process) cited only twice; and the Fourteenth Amendment (due 

process) cited only once).:150 cases 

28 U.S.C.A. § 1927 (makes attorneys who practice before federal courts responsible 

for the costs of vexatious litigation they engage in): 11 cases 

Other Federal and State Statutes: 132 cases 

•Includes: 

Employee Retirement Income Security Act (ERISA); Racketeer and Corrupt 

Organizations Act (RICO); Civil Rights Act of 1964; Sherman Antitrust Act; 

Americans with Disabilities Act; 42 U.S.C. §1983 (civil rights action against state 

agents); 42 U.S.C. §1988 (attorneys fees for victorious plaintiffs in civil right 

actions); West Vrrginia Governmental Ethics Act; Texas Rules of Civil Evidence; 

and an Illinois statute regarding the dismissal of a state attorney. This category 

also included eight decisions based on the Federal Rules of Appellate Procedure 

(Rules 28, 38 and 46) and three decisions based on Federal Rule of Criminal 

Procedure 44. 

408 TOT AL CASES 

APPENDIX IV 

64 Geo. Wash. L. Rev. 460, George Washington Law Review, 

Govern Lawyers in Federal Court and How Should the Rules Be Created?, 

Bruce A. Green [not reprinted here] 

Page 121 

Eligibility Requirements for, and Restrictions on, 

Practice before the Federal District Courts 

Marie Leary, Federal Judicial Center, 

November 7, 1995 

Page 123 

Introduction 

Analysis of Table Depicting Eligibility Requirements For, and 

Restrictions on, Practice Before the Federal District Courts 

Page 125 

"How many federal district courts require lawyers practicing before them to be members of 

the bar of the state in which the federal court sits?" Although appearing as a simple and 

straightforward inquiry at first glance, a comprehensive response entails consideration of a 

number of factors that quickly complicate the issue. Does the attorney want permission to make 

unlimited appearances before a federal district court representing any matter? Or does the 

attorney only want permission to appear for one particular case? Is the attorney a member in 

good standing of the bar of the state in which the district court is located or any other state or 

federal court? Does the attorney reside in, or is he or she regularly employed in, or regularly 

engaged in professional activities within the state or within the district in which permission to 

appear is sought? Is the attorney employed or retained by a state or federal government or its 

agencies to represent them in a matter brought before the district court in question? Depending 

upon which federal district court permission to practice before is sought, some or all of the above 

considerations may come into play in determining whether bar membership in the state in which 

the federal court sits is necessary. 

All ninety-four federal district courts specify in their local court rules who is eligible to 

practice before the court and any restrictions on this practice. While these rules vary considerably 

among the districts, a common framework permits analysis and meaningful comparisons. First, 

all federal district courts limit general permission to practice in all actions to members of the Bar 

of its court. Each district court specifies requirements for eligibility to apply for general 

admission to its Bar, which may or may not include bar membership in the state in which the 

district court is located. Second, most districts have provisions allowing an attorney who is not a 

member of that district's bar to make special appearances before the court. The two most 

commonly provided are for pro hac vice appearances (permission to appear and participate in a 

, particular case), and for appearances by an attorney employed or retained by the United States or 

one of its agencies to represent the United States or any agency thereof in a matter before the 

court. Not all districts make these provisions, and some districts have others. Further, almost all 

districts making these provisions also specify who is eligible to take advantage of them and what 

types of restrictions on practice before the court must be adhered to. 

The attached table displays the current rule in each federal district court.1 It is patterned 

after the framework outlined above, with separate columns for bar membership, pro hac vice 

appearances, appearances on behalf of the United States, and a final column for other special 

appearances that do not require bar membership. In considering these categories in more detail, 

please note that the information in the table regarding eligibility for, and restrictions on, practice 

before the federal district courts has been obtained solely from the districts' published local rules. 

Thus, it does not account for the possibility that a district may have actual practices or procedures 

that differ from, or supplement, the relevant local rule. 

1Marie Cordisco, Eligibility Requirement For, and Restrictions On, Practice Before the Federal 

District Courts (Federal Judicial Center November 1995) (unpublished table, on file with the 

author) [hereinafter Practice Table]. 
Page 126 

Analysis of Practice Table 

August 13, 1997 

Requirements For and Restrictions On Bar Member ship in the District Courts 

Page2 

Every federal district court has a provision in its local rules listing criteria that an attorney 

must possess to be eligible to apply for admission to that court's Bar. Fifty-five (59%) federal 

district courts limit membership in its Bar to attorneys who are members of the bar of the state or 

territorial possession in which the district court is located.2 A few of these districts require 

additional qualifications. For example, the Middle, Northern and Southern districts of Alabama 

require an attorney to be admitted to practice before the Supreme Court of Alabama and reside in 

Alabama or regularly engage in the practice of law in Alabama. The Northern and Southern 

Districts of Florida require an attorney to be admitted to and in good standing with the Florida 

Bar and to receive a satisfactory score on an examination approved by a committee established for 

that purpose. 

Eligibility requirements in the remaining thirty-nine districts vary considerably, but some of 

them do fall into a number of patterns, all of which qualify a broader pool of applicants for 

admission. Twenty-seven federal district courts have variations of rules that provide the attorney 

two alternative paths to eligibility. One pattern requires an attorney to be eligible to practice 

before any U.S. Court, or eligible to practice before the highest court of any state, territory, or 

insular possession of the U.S.3 Another pattern requires an attorney to be admitted to practice 

before some specific or all U.S. courts, or admitted to practice before the highest court of any state, 

the District of Columbia, territory or insular possession of U.S. 4 A third pattern requires an 

attorney to be a member of the bar of the state wherein the district is located, or a member of the 

bar in either (1) a U.S. Court;5 or (2) any other state;6 or (3) some other combination.7 The 

remaining twelve districts have provisions that are more restrictive because they do not allow for 

alternatives, but they are less restrictive than the 55 districts that only allow an attorney one way 

to qualify for.bar admission(member of bar of state wherein district court sits). For example, an 

attorney must be eligible to practice law in any state or the District of Columbia to be eligible for 

Bar membership in the Central, Northern & Southern Districts of Illinois, the Eastern District of 

Tennessee, and the District of Nebraska. The Eastern and Western Districts of Arkansas require 

2M., N. & S.D. Ala., D. Alaska, C., E. & S.D. Cal., D. Colo., D. Del., D. D.C., M., N. & S.D. Fla., M., 

N. & S.D. Ga., D. Guam, D. Idaho, N. & S.D. Iowa, D. Kan., E. & W.D. Ky., E., M. & W.D. La., D. 

Me., D. Mass., D. Minn., E.D. Mo., W.D. Mo., D. Mont., D. Nev., D. N.H., D. N.J., D. N.M., E., M. 

& W.D. N.C., D.N. Mar.I., S.D. Ohio, D. Or., E. & M.D. Pa., D. R.l., D. S.C., D. S.D., W.D. Tenn., D. 

Utah, D. V.I. E. & W.D. Va., N. & S.D. W.Va., D. Wyo. 

3N.D. Cal., D. Haw., E. & W.D. Wis. 

4N & S.D. Ind., E. & W.D. Mich., D. N.D., N.D. Ohio, E., N. & W. D. Okla., E.D. Tex. 

5 D. Ariz.(admitted to practice in Ariz. or any federal court); D. Conn.(member of bar of state of 

Conn. or any District Court); W.D. Pa. (admitted or eligible for admittance to Supreme Court of 

Pa. or U.S. Supreme Court or any District Court); S.D. Tex.(member state bar of Tex. or any 

District Court); D. Vt. (member state bar of Vt. or U.S. District Court within First and Second 

Circuits) 

6N.D. Tex. 

7D. Md. (Md. Court of Appeals or any state in which attorney maintains principal office); E. & 

S.D. N.Y. (bar of state of N.Y. or U.S. district Court in N.J., Conn., or Vt. and state bar of each); 

N.D. N.Y. (bar of state ofN.Y. or any U.S. District Court and state where office for regular 

practice of law is located (if District Court is outside of N.Y.). 
Analysis of Practice Table 

August 13, 1997 Page 127 

Page3 

an attorney to be licensed in his or her state of residence and, if a non-resident of Arkansas, 

authorized to practice in any District Court. Consult the Practice Table for additional variations of 

rules that list a district's eligibility requirements for admission to its bar. 

In addition to eligibility requirements (which qualify an attorney to apply for admission to a 

district court's Bar), districts also have administrative prerequisites that an attorney must satisfy 

as a condition precedent to admission. As footnote number two in the Practice Table states, it 

does not list these additional requirements for each district. They can be found by consulting the 

local rule referenced in the "local rule" column of the table, Most districts require the attorney to 

pay a prescribed admission fee; submit a petition or application for admission supported by (1) a 

certificate of good standing from the appropriate state or district court(s}, (2) an affidavit stating 

that the applicant is familiar with the district's local rules, rules of professional conduct or ethics, 

the Federal Rules of Civil and Criminal Procedure, and the Federal Rules of Evidence, (3) an 

affidavit attesting to freedom from any criminal conviction or any pending or past disciplinary 

action taken against the applicant by any court or bar association in any jurisdiction, and/ or (4) 

certificates from sponsoring member(s) of the district's bar attesting to applicant's legal and 

moral qualifications; and swearing a prescribed oath ( either before the court or by signing an 

oath card). 

In general, once an attorney has been admitted to the Bar of a federal district court, he or she 

has permission to make unlimited solo appearances before that court as attorney of record for 

any type of action. However, depending upon whether the bar member resides and/ or has an 

office within the district or the state in which the district court sits, the district court may place 

restrictions upon bar members. For example, the Northern District of California requires a bar 

member, who does not maintain an office within California, to designate local counsel who must 

be a member of the bar of the Northern District of California and the state bar of California , and 

who must maintain an office within California.8 In the Eastern and Western Districts of 

Kentucky, an attorney who is not a resident of and does not have an office within Kentucky must 

designate local counsel who must be a member of the bar of the respective district court and 

reside in or maintain an office in Kentucky, except for cases involving governmental entities.9 

Seventeen districts 10 (18%) require an attorney who does not maintain a residence and/ or an 

office within the district, or state wherein the district sits, to designate or associate with local 

counsel or co-counsel. Consult the Practice Table and relevant local rules for more detail 

concerning a designated co-counsel or local counsel's scope of responsibility, and the 

requirements that an attorney must meet to be eligible for designation as local counsel or cocounsel. A number of other districts have restrictions alerting attorneys who reside and/ or 

maintain an office outside the district or state wherein the district is located that the court may 

require association with local counsel or co-counsel.11 

8For similar restrictions when a bar member does not maintain an office within the district or 

state wherein the district sits, see the following districts in the Practice Table: D. Conn., N.D. ill., 

W.D. Mo., S.D. N.Y., W.D. N.Y., D. Vt. 

9For similar restrictions when a bar member doesn't maintain an office and residence within the 

district or state wherein the district is located, see the following districts in the Practice Table: D. 

Guam, D. Me., D.N. Mar. I., E. & W.D. Okla., M.D. Tenn., N.D. Tex., D. Utah. 

10See districts referenced supra notes 8 & 9 and examples provided in the accompanying text. 

lisee following districts in Practice Table: D. Alaska, D. Ariz., S.D. Cal., S.D. Ill., N. & S. D. Ind., 
Page 128 

Analysis of Practice Table 

August 13, 1997 Page 3 

an attorney to be licensed in his or her state of residence and, if a non-resident of Arkansas, 

authorized to practice in any District Court. Consult the Practice Table for additional variations of 

rules that list a district's eligibility requirements for admission to its bar. 

In addition to eligibility requirements (which qualify an attorney to apply for admission to a 

district court's Bar), districts also have administrative prerequisites that an attorney must satisfy 

as a condition precedent to admission. As footnote number two in the Practice Table states, it 

does not list these additional requirements for each district. They can be found by consulting the 

local rule referenced in the "local rule" column of the table. Most districts require the attorney to 

pay a prescribed admission fee; submit a petition or application for admission supported by (1) a 

certificate of good standing from the appropriate state or district court(s), (2) an affidavit stating 

that the applicant is familiar with the district's local rules, rules of professional conduct or ethics, 

the Federal Rules of Civil and Criminal Procedure, and the Federal Rules of Evidence, (3) an 

affidavit attesting to freedom from any criminal conviction or any pending or past disciplinary 

action taken against the applicant by any court or bar association in any jurisdiction, and/ or (4) 

certificates from sponsoring member(s) of the district's bar attesting to applicant's legal and 

moral qualifications; and swearing a prescribed oath (either before the court or by signing an 

oath card). 

In general, once an attorney has been admitted to the Bar of a federal district court, he or she 

has permission to make unlimited solo appearances before that court as attorney of record for 

any type of action. However, depending upon whether the bar member resides and/ or has an 

office within the district or the state in which the district court sits, the district court may place 

restrictions upon bar members. For example, the Northern District of California requires a bar 

member, who does not maintain an office within California, to designate local counsel who must 

be a member of the bar of the Northern District of California and the state bar of California, and 

who must maintain an office within California.8 In the Eastern and Western Districts of 

Kentucky, an attorney who is not a resident of and does not have an office within Kentucky must 

designate local counsel who must be a member of the bar of the respective district court and 

reside in or maintain an office in Kentucky, except for cases involving governmental entities.9 

Seventeen districts 10 (18%) require an attorney who does not maintain a residence and/ or an 

office within the district, or state wherein the district sits, to designate or associate with local 

counsel or co-counsel. Consult the Practice Table and relevant local rules for more detail 

concerning a designated co-counsel or local counsel's scope of responsibility, and the 

requirements that an attorney must meet to be eligible for designation as local counsel or cocounsel. A number of other districts have restrictions alerting attorneys who reside and/ or 

maintain an office outside the district or state wherein the district is located that the court may 

require association with local counsel or co-counsel. 11 

8For similar restrictions when a bar member does not maintain an office within the district or 

state wherein the district sits, see the following districts in the Practice Table: D. Conn., N.D. Ill., 

W.D. Mo., S.D. N.Y., W.D. N.Y., D. Vt. 

9For similar restrictions when a bar member doesn't maintain an office and residence within the 

district or state wherein the district is located, see the following districts in the Practice Table: D. 

Guam, D. Me., D.N. Mar. I., E. & W.D. Okla., M.D. Tenn., ND. Tex., D. Utah. 

10See districts referenced supra notes 8 & 9 and examples provided in the accompanying text. 

11 See following districts in Practice Table: D. Alaska, D. Ariz., S.D. Cal., S.D. Ill., N. & S. D. Ind., 
Analysis of Practice Table 

August 13, 1997 

another federal district court, 14 or to attorneys admitted to practice before the bar of the highest 

court in any state.15 

To limit pro hac vice appearances to attorneys who do not reside or practice within the 

district, or state wherein the district court sits (truly visiting attorneys), some districts (19 or 21% 

of districts with pro hac vice provisions) have negative eligibility criteria that an attorney must not 

satisfy or else the attorney will be ineligible to apply for permission to make a pro hac vice 

appearance. For example, in the Central, Eastern and Southern Districts of California, an attorney 

who resides in California, is regularly employed in California, or regularly engages in business, 

professional or other activities in California is ineligible to apply for permission to appear before 

the court pro hac vice. The District of Colorado exempts attorneys who are residents of the 

district. !6 These negative criteria are also used by some districts (45 or 50% of districts with pro 

hac vice provisions) to prevent attorneys who are either members of the bar of that district court 

already or who are eligible to become members from appearing pro hac vice. For example, the 

Southern District of Florida excludes applicants for pro hac vice appearances who have been 

admitted to the Bar of the Southern District of Florida; the Middle District of Georgia excludes 

members of the state bar of Georgia with residence or office within Georgia; the District of Idaho 

excludes attorneys who are eligible for Bar Membership in the District of Idaho.17 

If an attorney is granted permission to appear before a district court pro hac vice, the 

permission extends only to the particular case for which the applicant petitioned the court. In 

addition, the majority of districts (62 or 69% of the districts with provisions for pro hac vice 

appearances) require an attorney admitted pro hac vice to associate with a member of that 

district's bar. 18 Further, if the attorney resides or maintains an office outside of the district or 

state wherein the district is located, some districts require the attorney to associate with or 

designate as co-counsel a member of the district's bar who maintains a residence or office within 

the district. 19 A few courts restrict pro hac vice appearances by limiting the number of such 

appearances permitted, and warning applicants that pro hac vice appearances are the exception 

and not the norm. For example, the Central District of Illinois only permits a pro hac vice 

appearance on one occasion; thereafter, the attorney must secure admission to the Bar of the 

District. The District of the Virgin Islands limits pro hac vice appearances to no more than three in 

a calendar year. And if the District of Rhode Island permits an attorney who is an associate or 

member of a firm to appear pro hac vice, then no other attorney of that firm is allowed to appear 

pro hac vice within the same year. 

14See M.D. Fla., M. & S.D. Ga., D. Minn., M.D. Tenn. 

15See C. & S.D. Ill., D. Neb., D. Nev., D. N.M., M.D. N.C., N.D. Tex., D. Wyo. 

16For additional examples, see D. Del., M.D. Fla., M., N. & S.D. Ga., D. Guam, D. Haw., D. Minn., 

D. N.M., N.D. Mar.I., E., N. & W. D. Okla., M.D. Tenn., E.D. Wash. 

17For additional examples, see D. Alaska, E. & W.D. Ark., D. Colo., D. Conn., D. Del., D. D.C., M. & 

N.D. Fla., N. & S.D. Ga., D. Guam, N & S.D. Iowa, D. Kan., E. & W.D. Ky., E., M. & W.D. La., D. Me., 

D. Md., D. Minn., N. & S.D. Miss., W.D. Mo., D. Mont., D. Nev., D. N.J., D. N.M., N. N.D., S.D. Ohio, D. 

S.D., W.D. Tenn., E., N. & S.D. Tex., D. Utah, W.D. Va., N. & S.D. W.Va., D. Wyo. But see S.D. Ill. 

(explicitly permits an attorney eligible to become a member of the Bar of S.D. Ill. to appear pro hac vice) & 

W.D. Wis.(permission to appear pro hac vice is restricted to attorneys eligible for membership in Bar of 

W.D. Wis.). 

18See, e.g., D. Colo., N. & S. D. Iowa, D. Me., D. Md. 

19See, e.g., N. & S.D Cal., N. & S.D. Ind., M.D. Tenn., N.D. Tex. 
Page 130 

Arialysis of Practice Table 

August 13, 1997 

Requirements and Restrictions for Appearances on Behalf of the United States 

Page6 

The other major exception to bar membership found in districts' local rules is for 

appearances on behalf of the United States or its agencies. Fifty-nine (63%) federal district courts 

permit this exception. In general, an attorney who has been employed or retained by the United 

States government, or its agencies, to represent the government in any action in which the United 

States is a party is eligible to practice before a district court under this exception.20 Some districts 

have additional requirements for eligibility that make this exception more restrictive. For 

example, the Central District of California requires an attorney to be employed or retained by the 

United States government, to be noteligible for bar membership or pro hac vice admission, to be 

employed within California, and to be admitted to practice before any United States Court or any 

state court, and to have applied to take the next State Bar of Ca!ifornia.21 

In contrast with requirements for pro hac vice appearances, in the majority of districts (47 or 

80%) that provide an exception for attorneys that appear on behalf of the United States, an 

attorney who meets the eligibility requirements for this exception need not make a formal 

motion/petition for permission to appear. Permission is conceded by the district when the 

attorney appears representing the United States or one of its agencies. However, eight districts 

require an attorney representing the government to apply for and receive permission to practice 

on behalf of the United States or be formally introduced to the court by a United States 

Attorney.22 

Once admitted under this exception, attorneys can represent the United States in any action 

before the district, usually without the necessity of associating with local counsel. However, 

thirteen district courts require a non-local government attorney admitted under this provision to 

either associate with the United States Attorney for that particular district23, or designate as local 

counsel a member of that district's bar (and the bar of ll)e state within which the district court is 

located) who has an office within the district.24 

Other Special Appearances 

Several district courts have provisions for other exceptions to the general rule requiring bar 

membership for practice before the court. For example, the District Court for the District of 

Columbia permits a state Attorney General or that official's designee, who is a member in good 

standing of the bar of the highest court in any state or any United States Court, to appear and 

represent the state or any agency thereof. The Southern District of Florida, the District of Guam, 

the Northern and Southern Districts of Illinois, the District of Maine, and the Eastern District of 

20See, e.g., M., N. & S.D. Ala., E. & W.D. Ark., N.D. Cal.. 

21For other restrictive rules see E. & S.D. Cal., N.D. Ga., N.D. Ill., N. & S.D. Iowa, N. & W. D. N.Y., 

D. Vt. 

22C. & S.D. Cal., D. Haw., N.D. Ill., N. & S.D. Miss., D. Nev., N.D. N.Y., D.N. Mar. I., D. Or., D. 

Vt., D. Wyo. 

230. Alaska, E. & W.D. Mich., W.D. Mo., D. N.J., D. N.D., D. V.I., D. Wyo. 

24N.D. Cal., N.D. Ill., E., N. & W. D. Okla., M.D. Tenn. 
Analysis of Practice Table 

August 13, 1997 Page 131 Page? 

Missouri also provide exceptions to bar membership for appearances on behalf of their respective 

state governments. In addition, the District Court for the District of Columbia permits attorneys 

who are members of the D.C. Bar or bar of any United States Court or highest court of any state, 

to practice before the court in any case handled without a fee on behalf of indigents.25 Several 

districts have reciprocity provisions whereby they will admit (without formal application) 

attorneys who have been admitted to another federal district court, provided that the other 

district extend the same courtesy to bar members of the original district. For example, the 

Southern District of New York will admit members of the Bar of the Eastern District as long as 

members of the Southern District are admitted to the Eastern District without application. Both 

the Northern and Western Districts of New York will admit without formal application members 

of the other three district courts within the state of New York.26 The Eastern District of Tennessee 

has an extremely liberal reciprocity provision in which any attorney admitted to practice in any 

other district court can practice in the Eastern District of Tennessee provided they are members in 

good standing of bar of the district court in which they reside. The District of New Jersey and the 

District of the Virgin Islands have restrictive exceptions to bar membership for patent attorneys. 

Conclusion J 

The majority of federal district courts (59%) do require an attorney to be a member of the bar 

of the state or territorial possession in which the district court sits, but only in order to be eligible 

for admittance to the district's bar. Each of the fifty-five districts with this restrictive eligibility 

requirement for bar membership have provisions for pro hac vice appearances. Thus, if an 

attorney who does not belong to the bar of the state wherein the districts court sits wants to 

practice in one of these 55 districts, the scope of practice desired and, for government attorneys, 

the party being officially represented, are the two factors that will determine whether the 

attorney will be able to practice in these districts. If the attorney wants unlimited practice for any 

type of action, then he or she will usually need to qualify for admission in that district court's bar, 

which means membership in the bar of the state wherein the district court sits. An attorney who 

wants admission for one case or possibly several cases a year, may be able to secure permission to 

appear before the district pro hac vice. A problem may arise if an attorney who resides in, is 

employed in, or regularly practices law in a district, or the state in which the district court is 

located, is not a member of the bar of that district or state, and wants to appear before the federal 

district court pro hac vice. Some district courts (14) that require membership in the bar of the state 

wherein the district is located for bar membership have restrictions in their local rules preventing 

this.27 The majority of district courts (37 or 67%) that require an attorney to be a member of the 

bar of the state or territorial possession in which the district is located have provisions that permit 

appearances by attorneys on behalf of the United States without formal admission or application 

to the district's bar. And all of the districts that do not explicitly provide an exception for 

attorneys representing the United States or any agency thereof,28 have pro hac vice provisions. 

25See also D. Nev, E. & MD. Pa. for exceptions to bar membership for legal services attorneys. 

26See also WD. N.C., E. N. & W. D. Okla. for additional examples of reciprocity provisions. 

27C., E., & S.D. Cal., D. Colo., D. Del., MD. Fla., ND. Fla., MD. Ga., ND. Ga., SD. Ga., D. Guam, 

D. Minn., D. N.M., D.N. Mar.I. 

28D. Colo., D. Del., D. Kan., E. & WD. Ky., E., M. & W.D. La., D. N.M., E., M. & W.D. N.C., S.D. 

Ohio, D. S.C., WD. Ten., E.D. Va., WD. Va., SD. W.Va. 

APPENDIX I 

Practice Table 

for the Eligibility Requirements for, and Restrictions on, 

Practice before the Federal District Courts 

Research Division, Federal Judicial Center, 

November, 1995 

r 

Page 133 

Circuit District Local Rulel 

11 M.D.A!a. Rule 1 

Adopted 

Effective 

Mar. 20, 

1986 

ELIGIBILITY REQUIREMENTS FOR, 

AND RESTRICTIONS ON, PRACTICE BEFORE 

THEFEDERAL DISTRICT COURTS 

(PRACTICE TABLE)• 

RESEARCH DIVISION 

THE FEDERAL JUDICIAL CENTER 

@ 

l 

Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Pro hac vie~ Appearances3 Appearances on Behalf of the United 

Court2 (permission to appear and participate States or its Agencies4 

in a oarticular case1 

Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

1) admitted to practice before 1) admitted to practice before U.S. 1) represent U.S. or any agency thereof 

Supreme Court of Ala.; District Court for district in which with authority to appear as counsel; 

,rui attorney resides QI regularly practices ,rui 

2) reside in Ala. QI regularly engage in law; 2) government or agency thereof must 

practice of law in Ala. !JI be a party in the case. 

2) admitted to practice before highest 

court in the state in which attorney 

resides n,:re,,.nlarlu ... ractices law. 

·For a detailed explanation and analysis of the information depicted in this table refer to the accompanying report. 

Other Special Appearances (not 

requiring membership of the 

district court's bar) 

1 The information in this table derives solely from the published local rules of federal district courts, It does not-account for the possibility that a district may have policies or practices in addition to, or 

different from, those contained in the applicable local rule. Note that the description of the local rule in the following four columns maybe a paraphrasing of the actual language contained in the rule, and 

should not be quoted or cited as legal authority. 

2'fh1s cofiunn lists the core requirements that an attorney must possess to be eligible to apply for admission to the district court's bar. Most districts have additional administrative prerequisites that an 

attorney must satisfy before being admitted. These include but are not limited to: payment of a prescribed admission fee; submission of a certificate of good standing from the appropriate state or district 

court; submission of an application/petition for admission on which attorney must state full name, residence and business address, names of courts before which applicant is admitted to practice with dates 

of admission, and information regarding conviction of any crime and any disciplinary action taken against the applicant by any court or bar association in any of the jurisdictions or courts before which the 

applicant has practiced; an order of admission from a district judge within the district {by impetus of an oral or written motion by a member of the district's bar or on the court's own motion); obtaining 

affidavit{s) by sponsoring member(s) of Bar of the district court attesting to the applicants good moral character; certifying f~μilliarity with the District's local rules(civil and criminal), rules of professional 

conduct or ethics, Fed. R. Civ. P., Fed. R. Crim. P. and/or the F.R. Evid.; and administering of a prescribed oath either before the court or by signing an oath card These additional prerequisites are not 

provided in this table but can be found by consulting the local rule(s) listed in the "Local Rule" column of the table for each district. 

3Note that in all district courts an attorney must apply for permission to appear pro hac vice. It is within the district judge's discretion whether to issue an order permitting or denying such a request. In 

addition, most district's require submission of a pro hac vice application stating under penalty of perjury the attorney's residence and office addresses, what court(s) the attorney has been admitted to 

practice in and the date(s) of admission, that the attorney is in good standing and eligible to practice before said court(s), that the attorney is not currently suspended or disbarred in any other court, and 

whether the attorney made any pro hac vice application in the court within preceding year. Payment of a determined admission fee is also generally required to be submitted with a pro hac vice 

application/petition. 

4li a district's local rules have a provision for special appearances on behaU of the United States or its agencies, an attorney (in most districts) who meets th~ eligibility requirements for this exception 

provided in the rule need not make a formal request for special admission to appear before the district court (contrary to pro hac vice appearances). This column will note any exceptions to this general rule 

with the indicator N.B. 

l 

-w 

V, 
Circuit District Local Rule 1 Requirements and Restrictions for 

Bar Membership in the District Court 

11 N.D.Ala. Rule 83.1 Eligibility Requirements: 

1) admitted to practice before 

Adopted Supreme Court of Ala.; 

Effective mi 

Sept.1, 2) reside in Ala . .QI regularly engage in 

1991 practice of law in Ala. 

11 S.D. Ala. Rule 1 Eligibility Requirements: 

1) admitted to practice before 

Amended Supreme Court of Ala.; 

Effective mi 

Mar. 1, 1986 2) reside in Ala . .QI regularly engage in 

practice of law in Ala. 

09 D. Alaska Rule3 Eligibility Requirements: 

1) qualified to practice as an attorney 

Amended and counselor at law before courts of 

Effective Alaska; 

Nov. 16, mi 

1990 2) not employed in any capacity in 

District Court for D. Alaska (such as a 

law clerk or secretary to member of 

the court). 

Restrictions on practice: 

1) After leaving such position of 

employment under the Alaska District 

Court, may not practice as an attorney 

in connection with any case pending 

in the district during prior term of 

employment; nor permit name to 

appear on brief filed in connection 

with any such c_ase, or engage in any 

activity as attorney or advisor in 

connection with such case. 

2)Court may find good cause to 

require an active member of the Bar of 

D. Alaska to associate with another 

active member residing in place in 

district where case is oendine:. 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(permission to appear and participate 

in a -oarticular easel 

Eligibility Requirements: 

1) admitted to practice before U.S. 

District Court for district ln which 

attorney resides m: regularly practices 

law; 

llI 

2) admitted to practice before highest 

court in the state in which attorney 

resides orrem•larlv nractices law. 

Eligibility Requirements: 

1) admitted to practice before U.S. 

District Court for district in which 

attorney resides .QI regularly practices 

law; 

llI 

2) admitted to practice before highest 

court in the state in which attorney 

resides"'" rem•larl., ..,ractices law. 

Eligibility Requirements: 

1) member in good standing of the bar 

of another jurisdiction; 

mi 

2) not an active member of the Bar of 

the D. Alaska. 

Restrictions on practice: 

1) Must associate with an active 

member of Bar of D. of Alaska (court 

may permit an, exception on a 

sufficient sl;\owing of good cause). 

2) If nonlocal attorney appears for. a 

party(from outside district or outside 

location within district where 

proceeding is lo"cated), court may at 

any time during proceeding (sua 

sponte or on motion), for good cause, 

require association of local courael. 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) represent U.S. or any agency thereof 

with authority to appear as counsel; 

mi 

2) government or agency thereof must 

be a party in the case. 

Eligibility Requirements: 

1) represent U.S. or any agency thereof 

with authority to appear as counsel; 

mi 

2) government or agency thereof must 

be a party in the case. 

Eligibility Requirements: 

Represent U.S. or any agency thereof 

in an official capacity. 

Restrictions on practice: 

1) If attorney representing U.S. or any 

agency thereof is not a resident of the 

D. Alaska, the U.S. Attorney in the 

District will be associated initially, but 

the court may dispense with the 

association upon application 

demonstrating good cause. 

2) If nonlocal attorney is representing 

the U.S. or agency thereof (from 

outside D. Alaska or outside location 

within D. Alaska where proceeding is 

located), court may at any time during 

proceeding, sua sponte or on motion, 

for good cause, require association 

with the U.S. Attorney in the D. 

Alaska. 

O.t,her Special Appearances 

(nofrequiring membership of the 

· district court's bar) "C 

i 

.w -

°' 
Circuit District Local Rule 1 Requirements and Restrictions for 

Bar Membership in the District Court 

09 D.Ariz. Rule 1.5 Eligibility Requirements: 

1) admitted to practice and in good 

Adopted standing as an active practitioner in 

Effective Ariz.(if residing in or having principal 

Jan.13, office or practice in Ariz.); 

1994 QI 

2) admitted to practice and in good 

standing as an active practitioner in 

any federal court (if neither residing 

nor maintaining an office for practice 

of law in the D. Ariz.). 

Restrictions on practice: 

Court may order association with local 

counsel in anv case. 

08 E.&W. Rule B~l Eligibility Requirements: 

D. Ark. 1) licensed to practice in state of 

Amended residence; 

Effective llllJi 

Jan. 2, 1990 2) if nonresident of Ark., previously 

authorized to practice in any U.S. 

District Court. 

. 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(pennission to appear and participate 

in a oarticular case) 

No provision for pro hac vice 

appearances. 

Eligfbility Requirements: 

1) member in good standing of Bar of 

any U.S. District Court;. 

QI 

2) member in good standing of highest 

court of any state, territory or insular 

possession of U.S.; 

llllJi 

3) not admitted to practice in either 

the E. or W.D. Ark. 

Restrictions on practice: 

Must designate member of the Bar of 

D. Ark. who maintains an office in 

Ark. for the practice of law with 

whom the court and opposing counsel 

may readily communicate about 

conduct of case. Court may waive or 

modify requirements of this 

designation on written motion and for 

unod cause shown. 

3 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) currently represent U.S. in a full 

time official capacity; 

QI 

2) currently employed by the office of 

the Federal Public Defender m.d 

admitted to practice in another U.S. 

District Court. 

Restrictions on practice: 

Court may order association with local 

counsel in any case. 

Elig,.-bility Requirements: 

Attorney for the U.S. appearing in an 

official capacity. 

~ 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

Titis rule does not apply to an 

attorney in the W.D. Ark. who 

resides in Texarkana, Texas. 

November 1995 

i 

..... 

\;.l 

-.J 

~ 
Circuit District Local Rule! Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a particular case) 

09 C.D.Cal. Rule2 Eligibility Requirements: Eligibility Requirements: 

Active member, of good moral 1) member, of good moral character 

Amended character, and in good standing of, the and in good standing of, and eligible 

Effective state bar of Cat to practice before, the bar of any U.S. 

March 27, court; 

1992 .QI 

2) member, of good moral character 

and in good standing of, and eligible 

to practice before, the highest court Of 

any state, territory or Insular 

possession of the U.S.; 

m<i 

3) applicant must mu. reside in Cal.; be 

regularly employed in Cat; or 

regularly engaged in business, 

professional, or other similar activitie:s 

in Cal. 

' Restrictions on practice: 

1) Unless court orders otherwise, mU;St 

designate as local counsel an attorney 

who is a member of Bar of C.D. Cal. 

with whom Court and opposing 

counsel may readily communicate ri;: 

case and upon whom papers may be 

served. 

2) Judge assigned a case may require 

designatloJ:'.I: of co-counsel (who must 

be a member of Bar of and maintain an 

office within the C.D. Cal.) with 

authority to act as attorney_ of record: 

for all nu"'oses. 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) not be eligible for admission to the 

Bar of C.D. Cal or for permission to 

appear pro hac vice; 

m<i 

2) employed within _the state of Cal; 

m<i 

3) member, of good moral character 

and in good standing of, and eligible 

to practicibefore, the bar of any U.S. 

Court, .Q.C of the highest court of any 

state, territory or insular possession of 

U.S.; 

m<i 

4) employed or retained by the U.S. or 

its agencies; 

m<i 

5) provide certification showing 

applicant has applied to take next 

succeeding Bar Exam for admission to 

the state Bar of Cal for which 

applicant Is eligible. 

N.B. An attorney must apply for leave 

of court to practice in any matter for 

which employed 9r retained by U.S. or 

its agencies 

Oth~t,Spedal Appearances 

(not re9,~iring membership of the 

d~trict court's bar) "C 

~ 

w 

-

00 
Circuit District Local Rutel Requirements and Restrictions for 

Bar Membership in the District Court 

09 E.D.Cal. Rule 180 Eligibility Requirements: 

Active member in good standing of 

Adopted the state bar of Cal. 

Effective 

Dec.12, 

1994 

09 N.D.Cal. Rulell0 Eligibility Requirements: 

1) active member, of good moral 

Adopted character and in good standing, of the 

Effective bar of and eligible to practice before, 

Nov.1, any U.S. Court; 

1988 .QI 

2) active member, of good moral 

character and in good standing, of the 

bar of and eligible to practice before, 

the highest court of any state, territory 

or insular possession of U.S. 

Restrictions on practice: 

If attorney does not maintain an office 

within state of Cal., must designate in 

pleadings an active member in good 

standing of State Bar of Cal. who 

. maintains an office within Cal. and is a 

member of bar of N.D. Cal., upon 

whom copies of pleadings may be 

served and with whom judge and 

opposing counsel may communicate 

concemincr conduct of the action. 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(permission to appear and participate 

in a narticular case' 

Eligibility Requirements: 

1) member in good standing of, and 

eligible to practice before, bar of any 

U.S. court QI:of highest court of any 

state, territory or insular possession of 

U.S.; 

llllil 

2) retained to appear in E.D. Cal.; 

llllil 

3) must not. reside in Cal., be regularly 

employed in Cal., or regularly engage 

in professional activities in Cal. 

Restrictions on practice: 

Must designate member of Bar of E.D. 

Cal. with whom Court and opposing 

counsel may readily communicate re: 

attorney's conduct of the action and 

uoon whom oaoers will be served . 

Eligibility Requirements: 

1) active member in good standing of 

bar of, and eligible to practice before, 

any U.S. Court; 

.QI 

2) active member in good standing of 

bar of, and eligible to practice before, 

highest court of any state, territory or 

insular possession of U.S. 

Restrictions on practice: 

Must designate in pleadings an active 

member in good standing of State Bar 

of Cal. who maintains an office within 

Cal. and is a member of bar of N.D. 

Cal., upon whom copies of pleadings 

may be served and with whom judge 

and opposing counsel may 

communicate concerning conduct of 

the action. 

5 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) not eligible for admission to the Bar 

ofE.D.Cal.; 

llllil 

2) member in good standing of and 

eligible to practice before, bar of any 

U.S. court aof highest court of any 

state, territory or insular possession of 

U.S.; 

llllil 

3) matter must be one for which 

attorney is employed or retained by 

U.S. or its agencies. 

Eligibility Requirements: 

1) employed or retained by U.S. or any 

of its agencies; 

llllil 

2) must represent the U.S. or any of its 

agencies in the action or proceeding 

Restrictions on practice: 

Must designate in pleadings an active 

member in good standing of State Bar 

of Cal. who maintains an office within 

Cal. and is a member of bar of N.D. 

Cal., upon whom copies of pleadings 

may be served and with whom judge 

and opposing counsel may 

communicate concerning conduct of 

the action. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

r 

November 1995 

1 

.... 

l.;.) 

\0 
Circuit District Local Rule.L Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Oth.e.i:. Special Appearances 

Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not re<J.μiring membership of the 

(permission to appear and participate 

in a particular case) 

States or its Agencies dis'trict court's bar) i 

.i,. 

- 09 S.D.Cal. Rule 83.5 Eligibility Requirements: Eligibility Requirements: Ellgibility Requirements: 0 

Active member, of good moral 1) member of good moral character 1) not eligible for admission to the Bar 

character and in good standing, of and in good standing of, and eligible ofS.D.Cal.; 

state bar of Cal. to practice before, bar of any U.S. lUld 

Court m: of highest court of any state, 2) member, of good moral character 

Restrictions on practice: territory or insular possession of U.S. ; and in good standing of, and eligible 

If attorney maintains office outside lUld to practice before, bar of any U.S. 

S.D. Cal., judge may require 2) retained to appear in S.D. Cal.; court m:of highest court of any state, 

designation of a member of bar of S.D. lUld territory or insular possession of U.S.,; 

Cal. who maintains an office within 3) attorney must llQl reside in Cal., be lUld . . 

S.D. Cal. as co-counsel with authority regularly employed in Cal., or 3)matter one in which attorney is 

to act as attorney of record for all regularly engage in bUSiness, employed or retained by US. or its 

purposes. professional, or other activities in Cal. agencies; 

lUld 

Restrictions on practice: 4) representing u:s. or any of its 

1) Must designate member of bar of officers or agencies; 

S.D. Cal. with whom court and lUld 

opposing counsel may readily 5) Except for attorneys whose practice 

communicate re: conduct of case and before S.D. Cal. is restricted to 

upon whom papers will be served. prosecution of misdemeanors and 

2) If attorney maintains office outside petty offenses before U.S. magistrate 

S.D. Cal., judge may require judges, must apply for and pass next 

designation of a member of bar of S.D. succeeding Cal. bar exam for which 

Cal. who maintains an office within attorney is eligible after receiving 

S.D. Cal. as co-counsel with authority permission to practice before S.D. Cal.; 

to act as attorney of record for all thereafter must obtain admission to 

purposes. state bar of Cal. 

Restrictions on practice: 

If attorney maintains office outside 

S.D. Cal., judge may require 

designation of a member of bar of S.D. 

Cal. who maintains an office within 

the district as ccxounsel with 

authority to act as attorney of record 

for all .,.,.....,oses. 
Circuit District Local Rulel Requirements and Restrictions for 

Bar Membership in the District Court 

10 D. Colo. Rule 83.5 Eligibility Requirements: 

1) person of good moral character 

Adopted licensed by Colo. Supreme Court to 

Effective practice law; 

Apr. 15, fillli 

1994 2) member of bar in good standing in 

all courts and jurisdictions where 

admitted. 

02 D. Conn. Rule2 Eligibility Requirements: 

1) member of bar of state of Conn, 

Amended whose professional character is good; 

Effective <>I: 

Mar. 1, 1991 2) member of bar of any U.S. District 

Court whose professional character is 

good. 

Restrictions on practice: 

If attorney does not have an office for 

transaction of business in person 

within D. Conn., can't appear as 

attorney of record unless attorney 

specifies on the record a member of 

bar ofD. Conn. having an office 

within the District, upon whom 

service of all papers is made. 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(permission to appear and participate 

in a narticular case) 

Eligibility Requirements: 

1) member in good standing of bar of 

another state(not Colo.) QI federal 

court; 

fillli 

2) member in good standing in all bars 

wherever admitted(no disciplinary or 

grievance proceedings filed or 

pending); 

fillli 

3) must .DQi reside in D .. Colo. 

Restrictions on practice: 

All pleadings, motions and other 

papers signed by visiting attorney 

must also be signed by a member of 

Bar of D. Colo., who must also 

participate meaningfully, 

substantially, and continuously in 

preparation of case, and attend and 

: participate in all court hearings 

(unless judge waives requirement on 

findin er vood cause'-

Eligibility Requirements: 

1) member in good standing of bar of , 

another court of record; 

fillli 

2) written motion by a member of Bar 

of D. Conn. must state that visiting 

attorney (and any member of a firm to 

which he or she belongs) had not been 

denied admission or disciplined by 

any court 

Restrictions on practice: 

If visiting attorney does not have an 

office for transaction of business in 

person within.District of Conn,, can't 

appear as attorney of record unless 

attorney specifies on the record 

member of bar of D. Conn. having an 

office within the District, upon whom 

service of all oaoers is made. 

7 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

No provision for appearances on 

behalf of U.S. 

No provision for appearances on 

behalf o!U.S. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

) 

November 1995 

"d 

~ .... 

.I>, 

.... 

,-_·-:--=---"· 
Circuit District Local RuJeJ Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Oth~l';Special Appearances 

Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United {not reqUiring membership of the 

{permission to appear and participate States or its Agencies district court's bar) 

in a narticular case, 1 

(\) 

-t 

03 D.Del. Rule83.5 Eligibility Requirements: Eligibility Requirements: No provision for appearances on 

Admitted to practice by Supreme 1) admitted, practicing, and in good behalf ofU.S. 

Adopted Court of Del. standing in another jurisdiction; 

Effective mi 

Jan. I, 1995 2) must llQt be admitted to practice by 

the Supreme Court of Del.; reside in 

Del.; be regularly employed in Del.; or 

regularly engage in business, 

professiona!, or other similar activities 

lnDel. 

Restrictions on practice: 

1) Must associate with member of Bar 

of 0. Del. who maintains an offlce in 

D. Del. for regular transaction of 

business, upon whom allnotices, 

orders, pleadings and other papers 

filed In the case will be served and 

who is required to sign all papers filed 

wi~ the 0. Del., where signature of an 

attorney is required, and attend 

proceedings before _all officers of the 

Court. · 

2) Any judge of D. Del may revoke 

upon hearing after notice and for go6d 

cause a· 11ro hac vict admission. 

OODC D.D.C. Rule701 & Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Attorneys Employed by the State: 

Rule 104 Active member in good standing of 1) member in good standing of bar of 1) employed or retained by U.S. or one A State Attorney General or that 

the D. C. Bar. any U.S. Court m of highest court of of its agencies; official's designee, who is a 

Amended any state; mi member in good standing of bar of 

Effective mi 2) case must be one in which U.S. or highest court in any state or of any 

Mar.22, 2) not member of D.C. Bar. one of its agencies is a party. U.S. Court, may appear and 

1991 represent the State or. any agency 

Restrictions on practice: thereof. 

& 1) Can only file papers if non-member 

Amended attorney joins of record in signing Attorneys Representing 

Effective with a ~ember in good standing of Indigents: Attorney who is 

Oct. 30, the D.C. Bar. member in good standing of D.C. 

1989. 2) Non-member can only be heard in Bar or bar of any U.S. Court or of 

open court.by permission of judge to highest court of any state may 

whom case is assigned. appear, file papers and practice 

any case handled without a fee on 

behalf of indigents, upon filing a 

certificate that attorney is 

providing representation without 

comnensation. 
Circuit District Local Rule1 Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a narticular case) 

11 M.D.Fla. Rule2.01 &: Eligibility Requirements: Eligibility Requirements: 

Rule2,02 Member in good standing of the Fla. 1) member in good standing of bar of 

Bar. any U.S. District Court (outside state 

Adopted of Fla.); 

Effective fill<! 

July!, 1984 2) IlQ.t a resident of Fla. 

Restrictions on practice: 

1) Privilege to appear specially and be 

heard in any case in which nonmember is counsel of record may not 

be abused by frequent Or regular 

appearances in separate cases to such 

a degree as to constitute the 

maintenance of a regular practice of 

law in state of Fla. 

2) Non-resident attorney must 

designate member of ba,r of M.D, Fla., 

upon whom all notices and papers 

may be served and who is responsible 

for progress of case, including trial in 

default of non-resident attorney. Court 

may waive such designation for good 

cause. 

11 N.D.Fla. Rule 11.1 Eligibility Requirements: Eligibil,ity Requirements: 

1) currently in good standing as an 1) nonresident of and not practicing 

Adopted attorney admitted to the Fla. Bar; within the N.D. Fla.; 

Effective llllli llllli 

Apr.!, 1995 2) received a satisfactory score as 2) member in good standing in the bar 

determined by the District (or trial bar where existing) of another 

Examination Committee on an U.S. District Court. 

examination approved by the 

committee. 

r -

Federal Judicial Center 

9 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) represent U.S. or any agency thereof 

with authority of Government to 

appear as its counsel; 

fill<! 

2) case must be one in which 

Government or any agency thereof is a 

party. 

Eligibility Requirements: 

1) represent U.S, or any officer or 

agency thereof; 

.QI 

2) represent the State of Fla., or any 

officer or agency thereof and not yet a 

member of Bar of N.D. Fla. (note: 

permission to appear is granted 

temporarily upon motion until the 

next scheduled admission 

examination, if the attorney 

immediately applies for admission 

and takes that examination); 

fill<! 

3) case must be one in which U.S. or 

attomev's ae'en'"" is involved. 

Other Special Appearances 

{not requiring membership of the 

district court's bar) 

November 1995 

>-c 

~ .... 

.i,. 

w 
Circuit District Local Rule" Requirements and Restrictions for Requireinents and Restrictions for Requirements and Restrictions for Oth~i" ~pecial Appearances 

Bar Membership in the District Court Pro Hae Vke Appearances , Appearances on Behalf of the United (not retj\lir_ing membership of the 

(permission to appear and participate States or its Agencies dis~ct court's bar) 

in a particular easel ? 

-.i:,. 

11 5.0.Fla. Attorney Eligibility Requirements(admlssion Eligibility Requirements: Eligibility Requirements: Appearance on Behalf of State: 

.i:,. 

Rule1&4 to bar): 1) member in good standing of bar of 1) full•time U.S. Attorney, Assistant Attorney General and Assistant 

1) attorney in good standing admitted any U.S. Court, m of highest Court of U.S. Attorney, Federal Public Attorney General of state of Fla. 

Adopted to practice in state courts of Fla.; any state, territory, or insular Defender, Assistant Federal Public may appear and participate in 

Effective llllli possession of U.S.; Defender; particular actions or proceedings 

Jan.l,1982 2) received a passing score on an llllli m: on behalf of attorney's employer 

examination, approved and adopted 2) not admitted to practice in S.O. Fla. 2) attorney employed full•time by and in the attorney's official capacity. 

by District Examination Committee representing U.S. Government or any 

Amended and by 5.0. Fla. Restrictions on practice: agency thereof; 

Effective 1) Must designate a member of trial llllli 

Dec.!, 1994 Eligibility Requirements(admlssion bar of S.D. Fla. who maintains an 3) must appear and participate in 

to trial bar): office in the District for 'practice of law action or proceeding on behalf of 

1) attorney in good standing as a with whom Court and opposing attorney's employer in the attorney's 

member of bar of S.D. Fla.; counsel may readily communicate. official capacity. 

llllli regarding conduct of case and upon 

2) satisfied experience requirement of whom papers are served., 

4 trial experiences in accordance with 2)Upon written application and for 

local rules. good cause shown, Cou,t may waive 

or modify requirements of this 

Restrictions on practice(member of designation. 

bar but not trial bar): 

l)During testimonial proceedings(not 

including depositions), may appear as 

lead COW\Sel only if accompanied by a 

member of the trial bar who is serving 

as an advisor. 

2)In a criminal proceeding before a 

judge or magistrate judge, may only 

appear as lead counsel for a defendant 

if accompanied by member of trial bar 

serving as an advisor and can only 

sign pleadings, motions or other 

documents filed on defendant's behalf 

if cosigned by a member of trial bar. 

3)In an exceptional case, judge may 

permit member of bar (not member of 

trial bar) to appear alone in any aspect 

of the ~ matter, civil or 

criminal. 
Circuit District Local RuJe.l Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a particular case, 

11 M.D.Ga. Rule2 Eligibility Requirements: Eligibility Requirements: 

1) admitted to practice in trial courts 1) member in good standing of bar of 

Adopted of state of Ga.; any other district court of U.S.; 

Effective JUlll. JUlll. 

June 2, 1993 2) member of State Bar of Ga. 2) not member of state Bar of Ga.; 

JUlll. 

3) does not reside in or maintain an 

office in Ga. for practice of law. 

Restrictions on practice: 

If non-member is lead counsel in a 

civil case, must designate local counsel 

who is a member of local bar of M.D. 

Ga. upon whom motions and papers 

are served. 

11 N.D.Ga. Rule 110-1 Eligibility Requirements: Eligibility Requirements: 

Active member in good standing of 1) member in good standing of bar of 

Amended state Bar of Ga. any U.S. Court .Q..tof highest court of 

Effective any state; 

Sept. 30, JUlll. 

1985 2) IlQt. a resident of Ga.; 

JUlll. 

Rule 110-2 3) ruit an active member in good 

standing of State Bar of Ga. 

Amended 

Effective Restrictions on practice: 

Sept. 30, Must designate member of bar of N.D. 

1987 Ga. with whom opposing counsel and 

Court may readily communicate 

regarding conduct of case and upon 

whom papers are served; local 

attorney is responsible and has full 

authority to act for and on behalf of 

client in all proceedings in connection 

with the case(hearings, preti"ial 

conferences, and trial), if out--of-tovm 

attorne.y fails to respond to any Court 

order. 

Federal Judicial Center 

11 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) member of bar of a U.S. district 

court.; 

JUlll. 

2) appear and participate in official 

capacity; 

JUlll. 

3) represent U.S. government or any 

agency thereof. 

1) Government attorney expressly 

exempted by statute from a local bar 

membership requirement; 

.QI 

2) judge advocates of the Army, Navy, 

Marines, or Air Force representing 

U.S. in Magistrate Court; 

.QI 

3) If the attorney is a member of bar of 

some U.S. District Court and. either an 

Assistant U.S. Attorney or attorney 

representing a government agency, 

then the attorney is provisionally 

admitted to Bar of N.D. Ga. for 12 

months from date of commission 

during which time the attorney must 

take and pass Ga. Bar Exam; 

JUlll. 

4) llQ1 representing U.S. or agency 

thereof and residing within N.D. Ga. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

November 1995 

"Cl 

~ ..... 

~ 

VI 
Circuit District Local Rutel Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a oarticular cas;\ 

11 S.D.Ga. Rule502& Eligibility Requirements: Eligibility Requirements: 

504 Member in good standing of state Bar 1) member in good standing of bar of 

of Ga. any U.S. District Court (except S.D. 

Adopted Ga.); 

Effective illli 

Sept. 1, 2) must D.Q1 reside in nor maintain an 

1994 office in S.D. Ga. for practice of law. 

Restrictions on practice: 

If non-member is lead counsel, must 

designate, member of lqcal bar Of S.D. 

Ga. upon whom motions and papers 

mav be served. 

09 D.Guam Rule 110 Eligibility Requirements: Eligibility Requirements: 

Attorney of good moral character and l)not eligible for admission to Bar of 

Adopted active member in good standing of D.Guam; 

Effective Territorial Bar of Guam. illli 

Sept.12, 2) member of good moral character 

1994 Restrictions on practice: and in good standing of, and eligible 

If not residing nor having an office to practice before, bar of any U.S. 

within D. Guam, must designate an Court m of highest court of any state, 

active member in good standing of Bar territory or insular possession of U.S.; 

of D. Guam, who resides in and has an illli 

office in D. Guam, as co-counsel. 3) retained to appear before D. Guam; 

illli 

4) must not reside in Guam, be 

regularly employed in Guam, or 

regularly engage in business, 

professional or other activities in 

Guam. 

Restrictions on practice: 

Must designate an active member in 

good standing of Bar of D. Guam, who 

resides in and has an office in D. 

Guam, as co-counsel; associated local 

attorney must meaningfully 

participate in preparation and trial of 

the case with autho~ty and 

responsibility to _3.ct as attorney of 

record for. all purposes(accept service 

and attend all proceedings related to 

case). 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) member of bar of a U.S. District 

Court; 

illli 

2) represent U.S. Government of any 

agency thereof; 

illli 

3) appear and participate in particular 

actions or proceedings in official 

capacity. 

Eligibility Requirements: 

1) not eligible for admission to Bar of 

D.Guam; 

illli 

2) member with good moral character 

and in good standing of, and eligible 

to practice before, bar of any U.S. 

Courtmhighest court of any state, 

territory or insular possession of U.S.; 

illli 

3) must be employed or retained by 

and representing U.S. or its officers or 

agencies. 

OthefSpedal Appearances 

(not requ,iring membership of the 

dis.trict court's bar) 

Government of Guam Attorneys: 

Attorney employed by Office of 

Attorney General, Public Defender 

Service Corporation of Guam, or 

Guam Legal Services Corporation, 

who is not eligible for admission 

to Bar of D. Guam, may be 

temporarily admitted to prictice 

inD.Guam. 

l 

(1) 

.... 

.I>, 

O'I 
Circuit District Local Rute1 Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other Special Appearances 

Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(pennission to appear and participate States or its Agencies district court's bar) 

in a narticular case) 

09 D.Haw. Rule 110-1 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

1) member, of good moral character 1) member of good moral character 1) member in good standing of bar of 

Adopted and in good standing of the bar of, and in good standing of, and eligible highest court of any state; 

Effective and eligible to practice before, any to practice before, bar of any U.S. m:l 

Feb. 15, U.S. court; Court .QI. of highest court of any state, 2) employed by U.S. or one of its 

1995 llI territory, or insular possession of U.S.; agencies in a professional capacity; 

2)mem.ber of good moral character m:l m:l 

and in good standing of the bar of, 2) retained to appear in D. Haw.; 3) appearing on behalf of U.S. 

and eligible to practice before, the m:l 

highest court of any state, territory or 3) attorney must llQi reside in Haw.; 

insular possession of U.S1 be regularly employed in Haw.; or N.B. An attorney must apply to D. 

regularly engage in busllless, Haw. for leave to practice before the 

professional, or law~related activities Court during period of such 

in Haw. employment. 

Restrictions on practice:, 

Must designate member in good 

standing of bar of D. Haw. who 

maintains an office within the district 

to serve as associate counsel who must 

meaningfully participate in 

preparation and trial of.case with 

authority and responsibility to act as 

attomev of record for all oumoses. '~ 

09 D.Idaho Rule 83.5 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

Active member of good moral 1) not eligible for admission to Bar of 1) not eligible for admission to bar of 

Adopted character and in good standing of the D.Idaho; D.Idaho; 

Amended Idaho State Bar. m:l m:l 

July 1, 1994 2) member of good moral character 2) member of good moral character 

and in good standing of, and eligible and in good standing of, and eligible 

to practice before, bar of any U.S. to practice before, bar of any U.S. 

court QI of highest court of any state, court, QI of highest court of any state, 

territory, or insular possession of U.S.; territory or insular possession of U.S.; 

m:l m:l 

3) retained to appear in D. Idaho. 3) employed or retained by U.S. or its 

agencies and is representing U.S. or 

Restrictions on practice: any of its officers or agencies in the 

Must d"esignate a member of bar of D. matter. 

Idaho who maintains office within the 

district as co-counsel with authority to 

act as attorney of record for all 

purposes; designee must personally "t:I 

appear with attorney on all matter 

heard and tried before D. Idaho unless t 

excused bv the Court. -.i:,. 

-..:, 

Federal Judicial Center November 1995 

13 
arcuit District Local Rute1 Requirements and Restrictions for 

Bar Membership in the District Court 

07 C.D.Ill. Rule 1.2 Eligibility Requirements: 

Licensed to practice law in any state or 

Adopted D.C. 

Effective 

Jan.31, 

1995 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(permission to appear and participate 

in a narticular case) 

Eligibility Requirements: 

Licensed to practice in any state or 

D.C. 

Restrictions on practice: 

Permission to appear of record and 

participate in a case pro hacvict is 

limited to one occasioni thereafter, 

attorney must secure admission to the 

Bar of C.D. Ill. 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

No provision for appearances on 

behalf of U.S. 

Olh~f,Special Appearances 

(notrequ~g membership of the 

d~trict court's bar) 

"''--·--'--- , ... ,.,:: 

"C 

i 

..... 

.i:,. 

00 
--,·-.:h~: ",.-,~1~11;<f&,Xlt*i~i.-.i•f1 

• '••~f•l('-::-_·_---· ~- -1;~~.-:Ja, __ ·: ~....,it~:-~•~i;:;,.,\;'~fi_t~,1~~0:.~.+1;;.w,;~,Ar;-',,,,;,·,1;:~W,JMJ1L~.,1: ,~ -1:,.-,k"'-~':-v,_i. .. " 

Circuit District LocaJ Rule.I Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other Special Appearances Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a oarticular case) 

07 N.D.lli. Rule3.00& Eligibility Requirements(admission Eligibility Requirements: Eligibility Requirements(for special State and Local Attorneys: An 

Rule 3.10 to bar}: 1) member in good standing of bar of admission to trial bar): attorney not eligible for admission 

Member in good standing of bar of highest court of any state; 1) must not qualify for admission to to the Bar of N.D. ill., representing Adopted highest court of any state of U.S. or m: bar of N.D. Ill.; a state or local government or any Effective D.C. 2) of any U.S. District Court. fillli agency thereof, a member in good Sept. 1, 2) represent U.S., or any agency standing of bar of highest court in 

1992 Eligibility Requirements(admission Restrictions on practice(for nona thereof in official capacity; any state, and has required trial 

to trial bar): resident attorney}: fillli experience, may be admitted to 

1) member in good standing of bar of If attorney does not have an office 3) must be member in good standing trial bar to represent such 

N.D. Ill.; within N.D. Ill., must designate of bar of highest court in any state; government or agency in 

fillli member of bar of N.D. Ill. having an fillli attorney's official capacity. 2) provide evidence of required trial office within the Distrid upon whom 4) must provide evidence to the court 

experience(as defined by Rule). service of papers may be made; of having required trial experience as 

designated attorney not required to defined by the Rule. 

Restrictions on practice(for attorneys handle any substantive aspects of the 

admitted to bar, but not trial bar): litigation or sign any pleading, motion Restrictions on practice(for nona 

or other paper. resident attorney}: 

Note: Following officers appearing in If attorney does not have an office 

their official capacity can appear in all within N.D. Ill., must designate 

matters before the N.D. Ill. without member of bar of N.D. Ill. having an admission to the trial bar: Attorney office within the District upon whom 

General of U.S., U.S. Attorney for N.D. service of papers may be made; (, 

Ill., attorney general or other highest designated attorney not required td 

legal officer of any state, and state's handle any substantive aspects of the 

attorney of any county in state of Ill. litigation or sign any pleading, motion 

1) May appear during testimonial or other paper. 

proceedings only if accompanied by 

member of trial bar who is serving as 

an advisor. 

. 2) May appear as lead counsel for a 

defendant in a criminal proceeding 

only if accompanied by member of 

trial bar serving as advisor, and may 

sign pleadings, motions or other 

documents filed on defendant's behalf 

only if co-signed by member of trial 

bar. 

3) Upon written request by client and 

showing that interests of justice are 

served, judge may permit in a pending 

civil or criminal proceeding a nonatrial 

bar attorney to appear alone in any 

aspect of the matter. 

Restricti'tms on practice(for nonresident ~t.tomey): 

If attomey:~.oes not have an office 

within N.O: ID., must designate 

Federal .1dicialCen 

member of bar of N.D. Ill. having an 

November 19c P ,r office within the District upon whom 

service of papers may be made; 15 

designated attorney not required to 

..,, 

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~ District Local Ruie 1 Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for OthE!f$pecial Appearances 

Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requir.ing membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a particular case) ? 

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0 

07 S.D. Ill. Rule 1 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Appearances on Behalf of State 

Licensed to practice law in any state of Licensed to practice law in any state of 1) represent federal governmental or Municipal Governmental 

Adopted U.5.orD.C. U.S. or D.C. (may chose option of pro entity Entity: D. ill. permits any attorney 

Effective hac vice admission even U eligible for filll1 representing any governmental Mar.24, Restrictions on practice: admission to bar of S.D. IlL). 2) appear and participate in official entity (state or municipal) to 

1994 At any time for good cause, upon its capacity. appear and participate in their own motion, Court may require non- Restrictions on practice: official capacity without making a resident attorney to obtain local At ally time for good cause, upon its Restrictions on practice: motion for admission. 

counsel to assist in conduct of case. own motion, Court may require non- At any time for good cause, upon its 

resident attorney to obtain local own motion, Court may require noncounsel to assist in con4uct of case. resident attorney to obtain local 

counsel to assist in conduct of case. 

07 N.D.Ind. Rule83.5 Eligibility Requirements: Eligibility Requirements: Ellgibility Requirements: 

1) admitted to practice by Supreme 1) admitted to practice in any U.S. Appear as attorney for U.S. 

Adopted Court of U.S.; Court; 

Effective .Q[ .Q[ Restrictions on practice: 

Jan. I, 1994 2) admitted to practice by highest 2) admitted to practice in highest court Court may require non~resident of 

court of any state. of any state. N.D. Ind. to retain as local counsel a 

member of bar of N.D. Ind. who 

Restrictions on practice: Restrictions on practice: resides in·the district 

Court may require non-resident of Court may require non-resident of 

N.O. Ind. to retain as local counsel a N.D. Ind. to retain as local counsel a member of bar of N.D. ind. who member of bar of N.D. Ind. who 

resides in the district. resides in the district. 

09 S.D.Ind. Rule83.5 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

1) admitted to practice by Supreme !) admitted to pracHce In any U.S .. Appear as attorney for U.S. 

Adopted Court olU.5.; Court; 

Effective .Q[ .Q[ Restrictions on practice: 

Feb. I, 1992 2) admitted to practice by highest 2) admitted to practice in highest court Court may require; non-resident of 

court of any state. of any state. S.D. Ind. to retain as local counsel a 

member of bar of S.D. Ind. who 

Restrictions on practice: Restrictions on practice: resides in the district. 

Court may require non-resident of Court may require non-resident of 

S.D. Ind. to retain as local counsel a S.D. Ind. to retain as local counsel a 

member of bar of S.D. Ind. who member of bar of S.D. Ind. who 

resides in the district. resides in the district. 

Federal Judicial Center Novi:,mhPr 1QQ.ti 
Circuit District Local Rule.1 Requirements and Restrictions for 

Bar Membership in the District Court 

08 N.&S.D RuleS Eligibility Requirements: 

Iowa 1) currently in good standing as 

Adopted attorney admittE!d to practice in state 

Effective courts of Iowa; 

July 1, 1994 mi 

2) completed minimum of 6 hours of 

legal education in federal practice are 

within preceding 2 years. 

10 D.Kan. Rule402 Eligibility Requirements: 

1) admitted to practice in courts of 

Adopted state of Kansas; 

Effective mi 

Mar.1, 1991 2) in good standing in any and all bars 

to which ever admitted. 

Rule 404 

Amended 

Effective 

June 1, 1993 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(pennission to appear and participate 

in a narticular case: 

Eligibility Requirements: 

1) not member of bar of either N. or 

S.D.Iowa; 

mi 

2) member in good standing of any 

U.S. district court, m: highest court of 

any state, territory or insular 

possession of U.S. 

Restrictions on practice: 

Must designate associate counsel in 

each proceeding in which nonmember counsel appears, including 

filini? of anv oaoers or oleadino-c::. 

Eligibility Requirements: 

1) member in good standing of bar of 

a state other than Kan.; 

.Q.[ 

2) member in good standing of bar of 

another federal court. 

Restrictions on practice: 

All pleadings or other papers must 

also be signed by member of bar of D. 

Kan. in. good standing who 

participates meaningfully in 

preparation and trial of case or 

proceedings to extent required by 

court. 

<'c 

17 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

Only applies to Deparhnent of Justice 

attorney appearing for the U.S. 

Restrictions on practice: 

Must designate associate counsel in 

each proceeding in which nonmember counsel appears, including 

filing of any papers or pleadings. 

No provision for appearances on 

behalf of U.S. 

Other Special Appearances 

(not requiring membership of the 

district court's bar} 

· November 1995 

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Bar Membership in the District Court 

06 E.&W.D. Rule3 Eligibility Requirements: 

Ky. Of good moral and professional 

Amended character and in good standing with 

Effective and admitted to practice before 

Oct. 31, Supreme Court of Ky. 

1992 

Restrictions on practice: 

1) If attorney does not reside in or 

have an office in Ky., must designate a 

member of Bar who resides in or has 

an office in I<y. to be local counsel; 

local counsel must be sufficiently 

informed to answer status queries of 

Court and appear and adequately 

represent client at any hearings. 

2) In cases involving governmental 

agencies, local counsel is not needed 

to represent the agency. 

3) No partner or associate of a part· 

time U.S. Magistrate may appear as 

counsel in any criminal case; no 

attorney holding state, county, or 

municipal office(which require sitting 

in judgment upon or prosecuting 

aiminal offenders), can represent any 

defendant in a criminal case. 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(permission to appear and participate 

in a -narticular case) 

Eligibility Requirements: 

1) not admitted to practice as a 

member of Bar of E. or W.D. Ky.; 

.aDJ:I. 

2) in good standing in bar Of any state, 

territory, or D.C.; 

.aDJ:I. 

3) must be counsel of record in case 

for which pro hac vice application is 

made. 

Restrictions on practice: 

1) If attorney does not reside in or 

have an office in Ky., must designate a 

member of Bar who resides in or has 

an office in Ky. to be local counsel; 

local counsel must be sufficiently 

Informed to answer status queries of 

Court and appear and adequately 

represent client at any hearings. 

2) In cases involving governmental 

agencies, local counsel is not needed 

to represent the agency. 

3) No partner or associate of a part· , 

time U.S. Magistrate may appear as 

counsel in any aiminal case; no 

attorney holding state, county, or 

municipal office(which ~equire sitting 

in judgment upon or prosecuting 

criminal offenders), can represent any 

defendant in a criminal case. 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

No provision for appearances on 

behalf of U.S. 

Othet _Special Appearances 

(not reqU~ring membership of the 

district court's bar) 

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Circuit District Local RuJe.L Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other Special Appeara~ces 

Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a oarticular case) 

05 E.,M.& Rule 20 Eligibility Requirements: Eligibility Requirements: No provision for appearances on W.D.La. 1) member in good standing of bar of 1) must be ineligible to become behalf of U.S. 

Amended Supreme Court of La. member of bars of either E.,M. orW. 

Effective D.La.; 

Nov.30, .and 

1993 2) member in good standing of bar of 

any court of U.S . .QI of highest court of 

any state. 

Restrictions on practice: 

1) Note that if attorney meets the 

eligibility requirements'listed above, 

upon written motion of counsel of 

record who is member of bar of either 

E., M. or W.D. La., by ex parte order, 

attorney may be permitted to appear 

and participate as co~counsel in a 

particular case. 

2) All documents requiring signahtre 

of counsel for a party must also be 

signed by local counsel with whom 

Visiting attorney is associated. 

01 D.Me. RuleS Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Appearance on Behalf of State of 

1) active member, of good personal 1) not a member of bar of D. Me.; 1) member in good standing of bar of Maine: Any member in good 

Adopted and professional character, in good .and any court of U.S . .QI of highest court of standing of bar of any U.S. Court 

Effective standing of bar of state of Maine; .and. 2) certify admittance to practice in any any state; or highest court of any state, who 

Aug. I, 2) not disbarred from or under period U.S. federal court m: highest court of .and is employed by state of Me. or 1993 of suspension in any court of record in any state; 2) employed by U.S., or any department or agency thereof, 

U.S.; .and department or agency thereof; whose duties involve 

.and 3)not currently under any order of .and representation of state of Me. or 3) domiciled or maintains a bona fide disbarment, suspension or any other 3) duties involve representation of department or agency thereof, in 

law office within 125 miles of either discipline. U.S. or state of Maine, or any actions in the U.S. courts, is 

Bangor or Portland. department or agency thereof; permitted to practice in D. Me. 

Restrictions on practice: .and 

Restrictions on practice: 1) Must associate at all times with 4) action must be brought in courts of 

Attorneys who are not domiciled and memb~r of bar of D. Me., upon "'\horn U.S. 

don't maintain a bona fide law office all process, notices and other papers 

within 125 miles of either Bangor or may be se1Ved and who signs all Restrictions on practice: 

Portland, must associate themselves in papers filed with Court and whose Court may at any time for good cause 

every case with a local member of bar attendance at any proceeding may be revoke such permission without 

of D. Me. who shall be available for required by Court. hearing. 

unscheduled meetings and hearings. 2) Court may at any time for good 

cause and without hearing revoke i 

ri2:ht of visitin2: la=er to nractice. -V\ 

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Federal Judicial Center ·. November 1995 

19 
Circuit District Local Rutel Requirements and Restrictions for 

Bar Membership in the District Court 

04 D.Md. Rules 101, Eligibility Requirements: 

701 & 112 1) member of good private and 

professional character and in good 

Adopted standing of highest court of any state 

Effective . (or D.C.) in which attorney maintains 

July 1, 1992 principal law office; 

l!I: 

2) member of good private and 

professional character and in good 

standing of the Court of Appeals of 

Md.; 

llru! 

3) must be willing and available to 

accept appointments by Court to 

represent indigent parties in criminal 

or civil cases in D. Md. unless 

inconsistent with attorney's 

professional employment 

Restrictions on practice: 

No attorney, other than member of 

Md. bar, may be member of bar of D. 

Md. if U.S. District Court for district in 

which attorney maintains principal 

law office has a local rule that denies 

membership in its bar to any attorney 

who 1) is a member of Md. bar 

maintaining principal law office in 

Md., and 2) meets other nonp 

discriminatory qualifications set by 

that district. 

01 D.Mass. Rules 83.5.1 Eligibility Requirements: 

& 83.5.3 1) attorney in good standing and 

admitted to practice before Supreme 

Adopted Judldal Court of Mass.; 

Effective llru! 

Sept. 1, 2) satisfied examination requirements 

1990 as defined by District Committee on 

Admissions. 

Federal Judicial Center 

Requirements and Restrictions for Requirements and Restrictions for 

Pro Hae Vice Appearances Appearances on Behalf of the United 

(permission to appear and participate States or its Agencies 

in a oartkular case) 

Eligibility Requirements: No provision for appearances on 

1) not a member of Md. bar; behalf of U.S. 

llru! 

2) member in good standing of bar of 

any U.S. court or of highest court of 

any state. 

Restrictions on practice: 

Any party represented by attorney 

admitted pro hac vice must also be 

represented by an attorney formally 

admitted to Bar of D. Ma. 

Eligibility Requirements: Ellglbllity Requirements: 

1) member of bar of any U.S. District 1) appear and practice as attorney for 

Court; U.S. or any agency of U.S. or an officer 

l!I: ofU.S. in his official capacity; 

2) member of bar of highest court of .anJi 

anysta~e. 2) attorney in good standing as 

member of bar in every jurisdiction 

where admitted and not subject to 

pending disciplinary proceedings as 

member of bar of any U.S. District 

Court. 

Othet _Special Appearances 

(not req·1.i~ring membership of the 

dis~rict court's bar) 

Counsel representing a party in an 

action transferred to D. Md. under 

28 USC § 1407 need not be a 

member of bar of D. Md., and 

need not have resident counsel. 

An attorney need not be admitted 

to bar of D. Md. to obtain a 

subpoena for depositions to be 

taken in D. Md. for cases pending 

in other districts. 

: November 1995 

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Circuit District Local RuJeJ. Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other Special Appearances Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) in a nartkular cas;, 

06 E.D. Rule 110.1 Eligibility Requirements: No provision for pro hac vice Eligibility Requirements: Mich. Admitted to practice and remaining in appearances. 1) represent U.S. or any agency 

Adopted good standing in a court of record: thereof; 

Effective 1) in any state or D.C.; IDlli 

Jan. I, 1992 l!I 2) appear and participate in particular 

2) any U.S. District Court. cases in official capacity. 

Restrictions on practice: Restrictions on practice: If not an active member of state bar of If government representative does not Mich., can't appear as attorney of have an office in E.D. Mich., must record without specifying on record, designate the U.S. Attorney for E.D. as local counsel, a member of Bar of Mich., or one of his assistants, to E.D. Mich, having office within the receive service of all notices or papers, 

District upon whom service of all 

papers is to be made. 

06 W.D. Rule 16 & Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

Mich. Rule 19 1) admitted to practice before, and in Any licensed attorney. 1) represent U.S. or any agency 

good standing and active status in, a thereof; 

Adopted court of record in any state, D.C.,; Restrictions on practice: IDlli 

Effective l!I Court may require attorney with an 2) appear in official capacity. 

Aug. I, 2) any U.S. District Court. office a great distance from a W.D. 

1991 Mich. courthouse to retain local Restrictions on practice: 

Restrictions on practice: counsel with authority and If government. attorney doesn't have 

Court may require attorney with an responsibility for conduct of the case an office in W.D. Mich., must office a great distance from a W.D. (should lead counsel be unavailable designate U.S. Attorney for W.D. 

Mich. courthouse to retain local for any appearance, hearing or trial.) Mich., or an assistant, for service. 

counsel with authority and 

responsibility for conduct of the case 

(should lead counsel be unavailable 

for anv a--earance hearinc,, or trial-' 

08 D.Minn. Rule 83.5 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

Admitted to practice before Supreme I) residing outside of Minn.; I) not qualified to practice in D. Minn.; 

Adopted Court of Minn. IDlli mi 

Effective 2) not admitted to practice in Supreme 2) admitted to practice in a U.S. 

Feb. !, 1991. Court of Minn.; District Court; 

IDlli mi 

3) admitted to practice before and in 3) representing U.S. or any officer or 

good standing in any U.S. District agency thereof; .arui 

Court (except D. Minn.). 4) practicing in any action or 

proceeding in which U.S. or any 

Restrictions on practice: officer or agency thereof is a party. 

Must associate with an active Minn. 

resident member in good standing of 

bar of D. Minn., who must participate 

in preparation and trial of the case or 

"C 

~ presentation of matter involved and - on whom service of all papers may be , ..'"-· made. 

V, 

V, 

Federal Judicial Center November 1995 

21 
Circuit District Local Rule.I Requirements and Restrictions for Requiremenls and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a tiarticular case, 

OS N.&S.D. Rule! Eligibility Requirements: Eligibility Requirements: 

M;ss, 1) member of Miss. State Bar., and 1) in good standing as member of bar 

Amended authorized to practice before Supreme of another state(not Miss.); 

Effective Court of Miss.; 

Apr.14, .QI 

1993 2) If attorney does not reside in Miss. Restrictions on practice: 

and is not a member of Miss. State Bar, 1) Must associate with an attorney 

authorized to practice before and in who is admitted to practice before D. 

good standing of U.S. District Court of Miss. 

the jurisdiction of attorney's residence. 2) Court may require non-resident 

attorney to associate local counsel 

residing within Miss. Who will be 

authorized to sign and accept service 

on behalf of non-resident attorney and 

appear at emergency hearings at 

Court's direction. 

08 E.D.Mo. Rule2 Eligibility Requirements: Eligibility Requirements: 

Admitted to practice in the Supreme Member in good standing of bar of 

Adopted Court of Mo. highest court of any state or D.C. 

Effective 

MarchL Restrictions on practice: Restrictions on practice: 

1990 U attorney does not reside or have an U attorney does not reside or have an office within E.D. Mo., Court may office within E.D. Mo., Court may 

require attorney to retain local counsel require attorney to retain local counsel 

admitted to practice before E.D. Mo. admitted to practice before E.D. Mo,. 

and residing or having an office and residing or having an office 

within E.D. MO. when necessary for within E.D. MO. when necessary for 

just and timely determination of any just and timely determination of any 

matter. matter. 

Federal Judicial Center 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) represent U.S. or any of its 

departments, agencies or employees. 

N.B. Permission to handle cases must 

be sought by proper. introduction to 

the Court by U.S. Attorney of the 

District of one of his assistants. 

Restrictions on practice: 

Court may require non-resident 

attorney to associate local counsel 

residing within Miss. who will be 

authorized to sign and accept service 

on behalf of non-resident attorney and 

appear at emergency hearings at 

Court's direction. 

Eligibility Requirements: 

Authorized by federal law, or by 

employment, to represent U.S. or any 

of its departments or agencies. 

Restrictions on practice: 

U attorney does not reside or have an 

office within E.D. Mo., Court may 

require attorney to retain local counsel 

admitted to practice before E.D. Mo. 

and residing or having an office 

within E.D. MO. when necessary for 

just and timely determination of any 

matter. 

Other:Spedal Appearances 

(not req\liring membership of the 

district court's bar) 

Attorneys for State of Mo.! Any 

attorney authorized by Mo. state 

law, or by employment, to 

represent State of Mo. or any of its 

departments or agencies, may 

appear and represent said 

governmental entity or 

department or agency in any 

action in E.D. Mo. 

. 

November 1995 

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Circuit District Local Rutel Requirements and Restrictions for 

Bar Membership in the District Court 

08 W.D.Mo. Rule 1 Eligibility _Requirements: 

1) member in good standing of Mo. 

Adopted Bar; 

Effective llllSi 

Jan. 1, 1983 2) regularly engaged in the practice of 

law; 

ll! 

3) passed Mo. Bar Exam and admitted 

to practice by Supreme Court of Mo. 

in current calendar year and who 

intends to engage regularly in practice 

of law or serve as a law clerk to a 

federal judge or a judge of a state 

court of record. 

Restrictions on practice: 

1) An attorney who qualifies for 

admission under (3) above can not, 

without special leave, appear as 

counsel in W.D. Mo. unless said 

attorney maintains a law office and is 

regularly engaged in practice of law m: 

is associated with or employed by an 

attomey(s) admitted to Bar ofW.D. 

Mo. 

2) If member of bar ofW.D. Mo.'s 

office is located a great distance from 

place of holding court in division in 

which action is pending, and attorney 

represents one or more of the parties, 

judge may require retention of local 

attorney who is member of Bar of 

W.D. Mo. and who can be available 

for unscheduled meeting and 

hearin1ra. 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vke Appearances 

(pennission to appear and participate 

in a oarticular case) 

Eligibility Requirements: 

1) not member of bar of W.D. Mo.; 

llllSi 

2) member in good standing of bar of 

any court of record. 

Restrictions on practice: 

If attorney resides outside W.D. Mo. 

and is admitted to practice before and 

in good standing in the U.S. District 

Court in the district of attorney's 

residence or the courts of the state of 

attorney's residence, then attorney 

must associate with an active Mo. 

resident member in good standing of 

bar of W.D. Mo., who must participate 

in preparation and trial of the case or 

presentation of matter and on whom 

service of all papers may be made. 

23 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) represent U.S. Government or 

agency thereof, or employed by office 

of Federal Public Defender; 

llllSi 

2) appear and participate in attorney's 

official capacity. 

Restrictions on practice: 

If non·resident of W.D. Mo., must 

designate U.S. Attorney or Assistant 

U.S. Attorney for W.D. Mo. to receive 

service of all notices in said action. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

'. November 1995 

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Circuit District Local Rulel Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

In a narticular cast?) 

09 D.Mont. Rule 110-1 Eligibility Requirements: Eligibility Requirements: 

Member of good moral character and 1) not eligible for admission to bar of 

Amended in good standing of the State Bar of D.Mont.; 

Effective Mont. ll!ld 

Sept 1, 2) member of good moral character 

19995 Restrictions on practice: and in good·standing of, and eligible 

If attorney maintains an office outside to practice before, bar of any U.S. 

of D. Mont., judge to whom case is court m: of highest court of any state, 

assigned may require attorney to territory or insular possession of U.S.; 

designate member of Bar ofD. Mont. ll!ld 

who maintains an office within the 3) retained to appear in D. Mont.; 

District as co-counsel with authority to ll!ld . 

act as attorney of record for all 4) attorney must IW1 reside in Mont., 

purposes. be regularly employed in Mont., or 

regularly engage in business, 

professional, or other activities in 

Mont. 

Restrictions on practice: 

1) Must designate a member of bar of 

D. Mont. with whom Court and 

opposing counsel may readily 

communicate re: conduct of case and 

upon whom papers can be served. 

2) If attorney maintains an office 

outside of D. Mont., judge to whom 

case is assigned may require attom:ey 

to designate member of Bar of D_. 

Mont., who maintains an office within 

the District, as co--counsel with 

authority to act as attomey_of record. 

for all ounioses. 

OB D.Neb. Rule83.4 Eligibility Requirements: Eligibility Requirements: 

1) attorney of good moral character 1) attorney of good moral character 

Adopted admitted and licensed to practice admitted and licensed to practice 

Effective before highest court of any state.; .and before highest court of any state. 

Jan. 4, 1993 2) available for appointment to 

ronresent indhrent lith:rants. 

Federal Judicial Center 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) not eligible for admission to Bar of 

D.Mont.; 

ll!ld 

2) member of good moral character 

and in good standing of, and eligible 

to practice before, Bar of any U.S. 

Court m: of highest court of any state, 

territory, or insular possession of U.S.; 

ll!ld 

3) employed or retained by U.S. or its 

agencies and representing U.S. or any 

of its officers in the matter before the 

D.Mont. 

Restrictions on practice: 

If attorney maintains an office outside 

of D. Mont., judge to whom case is 

assigned may require attorney to 

designate member of Bar of D. Mont., 

who maintains an office within the 

District, as co-counsel with authority 

to act as attorney of record for all 

purposes. 

No provision for appearances on 

behalf of U.S. 

Ot1'~r;Special Appearances 

(not retjuiring membership of the 

dis.trict court's bar) 

Special Assistant U.S. Attorneys 

(practice before D. Mont. 

restricted to prosecution of 

misdemeanors and petty offenses 

before U.S. Magistrates) are 

exempt from having to meet 

eligibility requirements for bar 

membership in D. Mont. as well as 

the eligibility requirements 

needed for practice on behalf of 

the U.S. 

1 November 1995 

___ .--,_~ ·-, 

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i 

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V, 

00 
Circuit District Local Rulel Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a narticular easel 

09 D.Nev. Rule lA 10- Eligibility Requirements: Eligibility Requirements: 

1 to 10-4 Attorney of good moral and 1) not admitted to bar of D. Nev.; 

professional character admitted to .mi 

Adopted practice before Supreme Court of Nev. 2) member in good standing and in 

Effective active status of highest court of a state, 

June 1, 1995 Restrictions on practice: commonwealth, territory, or D.C. 

If attorney lives outside Nev., court 

may, in particular case at any time, Restrictions on practice: 

order association with a resident Nev. Must associate a resident member of 

attorney as co-counsel and specify Bar of D. Nev. as co-counsel, who 

responsibilities of each attorney to the mu.st have authority to ~ign binding 

case. stipulations, but need not personally 

attend all proceedings. 

01 D.N.H. Rule4 Eligibility Requirements: Eligibility Requirements: 

Member in good standing of bar of Member in good standing of bar of 

Amended Supreme Court of N.H. any U.S. court m: of highest court of 

Effective any state. 

Jan. 23, 

1995 Restrictions on practice: 

Mu.st actively associate with member 

of ijar of D. N.H. upon whom all 

process, notices and other papers may 

be served and who mu.st sign all 

papers filed and attend all 

proceedings unless excused by Court. 

2) Court may at any time and for good 

cause revoke permission to appear pro 

ha.c vice without a hearinv. 

Federal Judicial Center 

25 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) nonresident attorney; 

.mi 

2) member in good standing of highest 

court of any state, commonwealth, 

territory or D.C; 

.mi 

3) employed by U.S. as an attorney; 

.mi 

4)appearing on behalf of U.S. while so 

employed. 

N.B. Pennission to appear mu.st be 

sought upon motion of U.S. Attorney 

or Federal Public Defender for D. Nev. 

or one of the assistants. 

Eligibility Requirements: 

1) member of bar of any U.S. District 

Court; 

.mi 

2) appear and practice in official 

capacity as attorney for U.S., an 

agency or officer thereof. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

Legal Senrices Attorneys: An 

attorney in good standing with 

highest court of any state, 

commonwealth, territory, or D.C., 

who becomes employed by or 

associated with an organized legal 

services program funded from 

state, federal or recognized 

charitable sources and providing 

legal assistance to indigent in civil , 

matters, may be admitted to 

practice before D. Nev. during 

period of such employment or 

association(admission to Bar of D. 

Nev. and admission fee not 

fPnUired). 

November 1995 

"ti 

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Circuit District Local RuieJ Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Othe~ $pedal Appearances Bar Member&hip in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a oarticular case, 1 

(1) 

-

0\ 

0 

03 D.N.J, Rule4 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Patent Attorneys: any member in 

Llcensed to practice by Supreme Court 1) member in good standing of bar of 1) admitted to practice in any U.S. good standing of bar of any U.S. 

Amended ofN.J. any court of U.S . .o.r. of highest court of District Court; court or highest court of any state 

Effective any state; mi for at least 5 years, who is not 

July 1990 llllli 2) representing U.S. or any of its eligible for admission to bar of D. 

2) not licensed to practice by Supreme officers or agencies. N.J., has been admitted to practice Court of N.J.; before U.S. Patent Office and is 

mi Restrictions on practice: listed on its Register of attorneys, 3) not under suspension or disbarment If no office in D. N.J., must designate continuously engaged in practice by any court. U.S. Attorney to receive service of all of patent law as principal 

notices or papers in that action. occupation in established place of 

Restrictions on practice! business and office located in N.J. 

1) Must file an appearance as counsel for at least 2 years prior, maybe of record by a member of bar of D. N.J. admitted to practice before D. N.J. 

upon whom all notices, orders and limited to cases arising under 

pleadings may be served,,and who patent laws of U.S or elsewhere. 

must file papers, enter appearances for 

parties, sign stipulations, or sign and Note: An attorney admitteed 

receive payments on judgments, under this provision must 

decrees or order. associate of record with a member 

2) Attorney admitted pro hac vice can't 

receive a fee in any tort case in excess of bar ofD. N.J. 

of the N.J. State Court Contingency 

Fee Rule. 

10 D.N.M. Rule 83 Eligibility Requirements: Eligibility Requirements: No provision for appearances on Member in good standing of Supreme 1) reside outside D. N.M.; behalf ofU.S. 

Adopted CourtofN.M. mi 

Effective 2) member in good standing of bar of 

Oct. 26, Restrictions on practice: any state (other than N.M.). 

1993 If attorney resides outside D. N.M., 

Court may deem it necessary for Restrictions on practice: 

appearance, ready availability or Must associate with resident member 

otherwise in interest of expediting of bar of D. N.M on whom notice may 

disposition of case, to require be served and who must sign first 

association with resident member of motion or pleading and continue in 

bar of D. N.M. the case unless other resident counsel 

is substituted. 

Note: A non~resident attorney, 

associated with a resident member of 

bar of D. N.M, need not file a motion 

to be admitted pro hac vice. 

Federal Judicial Center · November 1995 

"' 
Circuit District Local Rulel Requirements and Restrictions for 

Bar Membership in the District Court 

02 E. &S.D. Rule2 Eligibility Requirements: 

N.Y. Adopted 1) member in good standing of bar of 

Effective stateofN.Y.; 

Oct.26, lllC 

1983 2) member in good standing of bar of 

U.S. District Court in N.J., Conn., or 

Vt. and of bar of state in which such 

district court is located, provided such 

district court by its rule extends a 

corresponding privilege to members 

of bars ofE. &. S.D. N.Y. 

Restrictions on practice(S.D. N.Y. 

only): 

If a judge so requires, an attorney not 

having an office within S. or E.D. N.Y. 

can't appear as attorney of record 

without designating member of bar of 

either district with an.office within 

either district upon whom service of 

oaoers mav be made. 

02 N.D.N.Y. Rule 83.1 Eligibility Requirements: 

Member whose professional character 

Adopted is good and in good standing of: 

Effective 1) bar of state of N.Y.; 

July 1, 1994 lllC 

2) bar of any U.S. District Court (if 

District Court is located outside state 

of N.Y., attorney must be currently 

admitted to practice in highest court of 

state in which applicant maintains an 

office for regular practice of law ). 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(permission to appear and participate 

in a narticular case) 

Eligibility Requirements: 

Member in good standing of bar of 

any state m:anyUS. District Court. 

Restrictions on practice: 

May not enter appearances for parties, 

sign stipulations or receive payments 

upon judgments, decrees or orders 

unless associated with an attorney 

who is a member of bar of the district 

for which admission is ~ought. 

Eligibility Requirements:Member in 

good standing of bar of 

1) any state; 

lllC 

2) any U.S. District Court. 

Restrictions on practice: 

Must associate with an attorney who 

.is member of bar of N.D. N.Y. to enter 

appearances for parties, sign 

stipulations or receive payments on 

judgments, decrees or orders. 

27 

Requirements and Restrictions for 

Appearances on Behal£ of the United 

States or its Agencies 

No provision for appearances on 

behalf of U.S. 

Eligibility Requirements: 

1) appointed by U.S. Attorney General 

as a U.S. Attorney, an assistant U.S. 

Attorney, or as a special attorney 

under 28 U.S. C. §§ 541-543; 

and 

2) admitted to practice before any U.S. 

District Court; 

and 

3) appear on any matter on behalf of 

U.S. 

N.B.Anattorneymustbe admitted to 

practice on motion of member of bar 

ofN.D.N.Y. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

In S.D. N.Y. only: A member in 

good standing of bar of either S. or 

E.D. N .Y. may be admitted to bar 

of other district without formal 

application. 

In E.D. N.Y. only: A member in 

good standing of bar of any 

district court in Second Circuit 

may be admitted to bar of E.D. 

N.Y. without formal application. 

Member in good standing of bar 

of U.S. District Court for S., E. or 

W.D. N.Y. shall be admitted to 

practice in N.D. N.Y. without 

formal application. 

November 1995 

"" 

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Circuit District Local RuJeJ Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Othe;r.Special Appearances 

Bar Membership Jn the Dbtrlct Court Pro Hae Vice Appearances Appearances on Behalf of the United (not reCJ.tiiring membership of the 

(pennission to appear and participate States or its Agencies district court's bar) 

in a '"'articular casE:) ? 

- 02 W.D.N.Y. Rule83.1 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Member in good standing of bar 

1) admitted to practice before courts of Admitted to practice in any state, 1) appointed by U.S. Attorney General of U.S. District Court for S., E. or 

Adopted N.Y. State; territory, district or foreign country. as a U.S. Attorney, an Assistant U.S. N.D. N.Y. shall be admitted to 

Effective ll[ Atto~ey, a special attorney under 28 practice in W.D. N.Y. without 

Dec, 1, 1994 2} member in good standing of any Restrictions on practice: U.S.C. §§541,543, an attorney of DO) formal application. 

U.S. District Court and of bar of state Except for bankruptcy matters, must under 28 U.S.C. § 51?, or an attorney 

~ 

in which such District Court is located have as associate counsel of record a employed by a federal agency; 

iill1 in which applicant maintains member of bar ofW.D. N.Y. who mi!! 

office for practice of law (provided maintains an office within W.D. N.Y. 2) matter must be within scope of 

such District Court by rule extends a with whom· court and opposing employment. 

corresponding privilege to members counsel may communicate regarding 

of bar ofW.D. N.Y.). conduct of case and up0n whom 

papers may be served. 

Restriction on practice: 

If an attorney does not maintain an 

office in W.D. N.Y., must apply for 

permission to proceed with local 

counsel (unless court grants 

permission to dispense with 

reauirement). 

04 E.D.N.C. Rule2.00 Eligibility Requirements: Eligibility R~quirements: No provision for appearances on 

Member in good standing of bar of Member in good standing of bar of behal! of the U.S. 

Adopted Supreme Court of N.C. 1) any U.S. District Court; 

Effective mi!! 

Feb. 22, 2) highest court of any state or D.C. ' 

1994 

Restrictions on practice: 

Except for an attorney representing a 

governmental agency, must associate 

with a member of bar of E.D. N.C. 

who is an authorized representative . 

for communication with court about 

the litigation; pleadings and other 

documents filed in case must contain 

name and address of both attorney 

and local counsel; service is sufficient 

if only served upon associated loc.i.l 

counsel. 

Federal Judicial Center November 1995 
Circuit District Local Rule 1 Requirements and Restrictions for 

Bar Membership in the District Court 

04 M.D.N.C. Rule 103 Eligibility Requirements: 

Admitted to practice and in good 

Adopted standing with Supreme Court of N.C. 

Effective 

July 1, 1995 

04 W.D.N.C. Rulel Eligibility Requirements: 

Member in good standing of N.C. 

Amended State Bar. 

Effective 

March 20, 

1991 

I 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(pennission to appear and participate 

in a oarticular case) 

Eligibility Requirements: 

Member in good standing of bar of 

highest court of any state or D.C. 

Restrictions on practice: 

Except for attorneys representing 

governmental agencies, must associate 

with a member of bar of M.D. N.C. 

who is familiar with case and has 

authority to control litigation and 

must be present at all conferences, 

hearings, trials, and pr6ceedings; and 

must sign all pleadings and papers, 

excent certificates of service. 

Eligibility Requirements: 

1) member in good standing of Bar of 

U.S. Supreme Court; 

l2I: 

2) bar of Supreme Court of any state in 

U.S. 

Restrictions on practice: 

1) If out-of-state attorney does not 

associate with a member of bar of 

W.D. N.C. (not required in cases 

where amount in controversy or 

importance of case doesn't appear to 

justify double employment), attorney 

admitted pro hac vice consents that 

service of all pleadings and notices 

may be made on deputy clerk in 

appropriate division of W.D. N.C. as 

process agent. 

2) Special admissions is the exception 

not the rule, and no out-of-state 

lawyer will be permitted to practice 

frequently or regularly in W.D. N.C. 

withoUt association of local counsel. 

29 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

No provision for appearances on 

behalf of U.S. 

No provision for appearances on 

behalf ofU.S. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

Upon appearance in W.D. N.C., 

any lawyer a member in good 

standing in U.S. District Courts for 

M. & E.D.N.C. may practice in 

W.D.N.C. 

November 1995 

i 

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Circuit District Local Rule• Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for 0th~~ Special Appearances Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not reciuiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a oarticular ease) ? 

-0\ 

08 D.N.D. Rule79.1 Eligibillty Requirements: Eligibility Requirements: Eligibility Requirements: 

Any member in good standing of the 

Any attorney not admitted to practice 

1) representing U.S. government, or Adopted bar of: any agency thereof; 

Effective 1) Suprer;i.e Court of U.S., any U.S. before D. N.D. ,mi 

.i:,. 

Jan. 23, Circuit Court of Appeals, or any U.S. 2) admitted to practice in any court of 

1995 District Court; U.S. or highest court of any state; 

ll.t ,mi 

2) highest court of any state of U.S. 3) not qualified to practice in D. N.D.; 

,mi 

4) appearing and participating in an 

oflidal capacity. 

Restrictions on practice: 

If not a resident ofD. N.D., 

government representative must 

designate U.S. Attorney for D. N.D. to 

receive service of notices. 

Federal Judicial Center 

30 

November 1995 
Circuit District Local RuieJ Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other Special Appearances Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a narticular case) 

09 D.N. Rulell0 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Attorney for the Commonwealth: 

Mar.I. Attorneys of good moral character Attorneys of good moral character 1) member in good standing of bar of any attorney a member in good Adopted who are active members in good reta~ed to appear in D.N. Mar.I. who highest court of any state; standing of bar of highest court of 

Effective standing of Commonwealth Supreme are active members in good standing llru:I any state and who is employed by July I, 1993 Court bar. of 2)currently employed by U.S. the Commonwealth government, 1) any U.S. Court; the Public Defender, or Restrictions on practice: Qt N.B. An attorney must petition for Micronesian Legal Services 

If attorney does not reside in and have 2) highest court of any state, territory, temporary permission to Corporation, is eligible to petition an office in N. Mar.L must associate as or commonwealth of U.S; practice(during term of employment), for temporary admission while so co-counsel an attorney who is an llru:I but fee is waived. employed. active member in good standing of bar 3) must not reside in N .. Mar.I.; not 

of D.N. Mar.I who must meaningfully regularly employed in N.Mar.1. 

participate in preparation and trial of (except by CNMI government); or not 

case with full authority and regularly engage in business, 

responsibility to act as attorney of profE!ssional, or other activities in the 

record for all purposes; local counsel N.Mar.I. 

must attend all proceedings related to 

case and accept service of all Restrictions on practice: 

documents required to be served on 1) Must designate member of bar of 

counsel. D.N. Mar.I. with whom Court and 

opposing counsel may readily 

communicate regarding conduct of 

case and upon whom papers may be 

served. 

2) Must also associate as co-counsel an 

attorney who is an active member in 

good standing of bar of D.N. Mar.I 

who must meaningfully participate in 

preparation and trial of case with full 

authority and responsibility to act as 

attorney of record for all purposes; 

local counsel must attend all 

proceedings related to case and accept 

service of all documents required to be 

served on counsel. 

06 N.D.Ohio Rule 1:5.1 Eligibility Requirements: Eligibility Requirements: No provision for appearances on Attorney of good private and Membe_r in good standing of bar of behalf of U.S. 

Adopted professional character admitted to 1) any court of U.S.; 

Effective practice Qt 

Jan.!, 1992 1) in highest court of any state, 

territory, D.C, or insular possession; 

2) highest court of any state. 

Qt 

2) in anv district court of the U.S. "C 

i 

-0\ 

u, 

Federal Judicial Center : November 1995 

31 
Circuit District Local Rule! Requirements and Restrictions for 

Bar Membership in the District Court 

06 S.D.Ohio Rule83.4 Eligibility Requirements(for bar 

membership): 

Adopted Member in good standing of Bar of 

Effective Supreme Court of Ohio. 

Feb.199S 

Restrictions on practice: 

In all actions filed in, transferred to, or 

removed from S.D. Ohio, all parties 

not appearing prose must be 

represented of record by a trial 

attorney who is: (1) member in good 

standing of bar of Supreme Court of 

Ohio; and (2) admitted to practice 

before a U.S. District Court; md (3) 

maintains an office for practice of law 

either within Ohio or within 100 miles 

of location of D. Ohio court at 

Cincinnati, Columbus, or Dayton. All 

notices and communications from S.D. 

Ohio and all documents to be served 

on parties are served on trial attorney 

who must notify co-counsel or 

associate counsel. 

10 E.D. Okla. Rule4 Eligibility Requirements: 

1) member of Bar of Supreme Court of 

Adopted U.S., any U.S. Court of Appeals, or 

Effective any U.S. District Court; 

March 12, l1I 

1984 2) member in good standing of bar of 

highest court of any state of U.S. 

Restrictions on practice: 

U not a resident of, or does not 

maintain an office in Okla., must 

designate an attorney who resides in 

and maintains a law office within 

Okla. and who is admitted to practice 

in B.D. Okla.; resident attorney will 

sign first pleading filed and continue 

in case, accepting service. 

. 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(pennission to appear and participate 

in a narticular case!) 

Eligibility Requirements: 

l)member in good standing of highest 

court of any state; 

iUlli 

2) not eligible to be member of bar of 

S.D.Ohio. 

Restrictions on practice: 

Meeting above requirements allows 

attorney to appear and participate as 

counsel or co-counsel upon motion of 

a trial attorney. 

;Eligibility Requirements: 

1) member of Bar of Supreme Court of 

U.S., any U.S. Court of Appeals or . 

District Court; 

iUlli 

2) nonresident of Okla.; 

iUlli 

3) appearing and practicing in a case 

or proceeding then on file in E.D. 

Okla. 

Restrictions on practice: 

U not a. resident' of, or does not 

m.iintain an office in Okla., must 

designate an attorney who resides in 

and maintains a law office within 

Okla. and who· is admitted to practice 

in E.D. Okla.; resident attorney will . 

sign first pleading filed and continue 

in case accentinc,, service . 

00 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

No provision for appearances on 

behalf ofU.S. 

Eligibility Requirements: 

1) employed or retained by U.S. or its 

agencies; 

iUlli 

2)represent U.S. or such agencies. 

Restrictions on practice: 

U not a· resident of, or does not 

maintain an office in Okla., must 

designate an attorney who resides in 

and maintains a law office within 

Okla. and who is admitted to practice 

in E.D. Okla.; resident attorney will 

sign first pleading filed and continue 

in case, accepting service. 

Otht;·r,Speclal Appearances 

(not requiring membership of the 

district court's bar) 

Reciprocity: Any attorney 

admitted to practice in N.D. or 

W.D. Okla. is admitted to practice 

in E.D. Okla. upon motion in open 

court by member of bar of E.D. 

Okla. (without filing of formal 

application). 

i November 1995 

? 

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°' °' 
Circuit District Local Rule 1 Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a particular case, 

10 N.D. Rule 83.3 Eligibility Requirements: Eligibility Requirements: 

Okla. 1) member of Bar of Supreme Court of 1) member of Bar of Supreme Court of 

Adopted U.S., any U.S. Court of Appeals or U.S., af\y U.S. Court of Appeals or Effective District Court; District Court; 

Jan. 1, 1995 llI llll<! 

2) member in good standing of bar of 2) nonresident of Okla.; 

highest court of any state of U.S. llll<! 

3) appearing and practicing in a case 

Restrictions on practice: or proceeding then on file in N.O. 

If attorney is not a resident of Okla., Okla. 

must designate attorney who is 

resident of Okla. and admitted to Restrictions on practice: 

practice in N.D. Okla., to enter an If attorney is not a resident of Okla., 

appearance and continue in the case must designate attorney who is 

unless other resident counsel is resident of Okla. and admitted to 

substituted; must also accept service. practice in N.D. Okla. to enter an 

appearance and continue in the case 

unless other resident counsel is 

substituted; must also accept service. 

Federal Judicial Center 

33 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) employed or retained by U.S. or its 

agencies; 

llll<! 

2)represent U.S. or such agencies. 

Restrictions on practice: 

If attorney is not a resident of Okla., 

must designate attorney who is 

resident of Okla. and admitted to 

practice in N.D. Okla. to enter an 

appearance and continue in the case 

unless other resident counsel is 

substituted; must also accept service. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

Reciprocity: Any attorney 

admitted to practice in E.D. or 

W.D. Okla. is admitted to practice 

in N.D. Okla. upon motion in 

open court by member of bar of 

N.D. Okla. (without filing of 

formal application). 

November 1995 

i 

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Circuit District Local Rulel Requ,iremenls and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Oth.8'f,Special Appearances Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behal£ of the United (not requiring membership of the 

(permission to appear and par~dpate States or its Agencies district court's bar) 

in a particular easel l 

(1) 

-0\ 

00 

10 W.D. Rule4 Eligibility Requirements: Eligibility Requirements: Eligibility Requiremellts: Reciprocity: Any attorney Okla. 1) member of Bar of Supreme Court of 1) member of Bar of Supreme Court of 1) employed or retained by U.S. or its admitted in E.D. Okla. or N.D. 

Amended U.S., or any U.S. Court of Appeals or U.S., any U.S. Court of Appeals or agencies; Okla. may be admitted to practice Effective District Court; District Court; ill1li in W.D. Okla. upon motion in 

Nov. 23, l2I: ill1li 2) representirig U.S. or its agencies in open Court of member of bar of 

1992 2) member in good standing of bar of 2) nonresident of Okla.; case or proceeding .. W.D. Okla.(wlthout lilhlg of 

highest court of any state of U.S. ill1li formal application). 

3) appearing and practicing in a case Restrictions on practice: 

Restrictions on practice: or proceeding then on file in E.D. Unless out--of~state attorney ls from a Unless out--of•state attorney ls from a Okla.; jurisdiction that does not require 

jurisdiction that does not require l2I: association of local counsel in its 

association of local counsel in its 4) attorney resides in Okla. and is courts, if an attorney is not a resident 

courts, if an attorney is not a resident eligible for admission to Bar of W.D. of, or does not maintain an office in 

of1 or does not maintain an office in Okla. (may be granted temporary Okla.1 must associate with an attorney 

Okla., must associate with an attorney admission to practice in a pending who resides in and maintains a law 

who resides in and maintains a law case). office within Okla. and who is 

office within Okla. and who is admitted to practice in W.D. Okla.; 

admitted to practice in W.D. Okla.; Restrictions on practice: resident attorney will sign first 

resident attorney will sign first Unless out--of·state attorney ls from a . pleading filed and continue in case, 

pleading filed and continue in case, jurisdiction that does not require accepting service. 

accepting service. association of local counsel in its 

courts, if an attorney ls not a resident 

' of, or does not maintain an office in 

Okla., must associate with an attorney 

who resides in and maintains a law 

office within Okla. and who is 

admitted to practice in W.D. Okla.; 

resident attorney will sign first 

pleading filed and continue in case, 

accepting service. 

09 D.Or. Rulell0 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

Attorney of good moral character and 1) active member in good standing of 1) employed or retained by U.S. 

Amended an active member in good standing of bar of any U.S. court; government or any of its agencies; Effective Oregon State Bar. l2I: ill1li Jan.!, 1995 2) highest court of any state, territory 2) represent U.S. government of any of 

or insular possession of U.S. its agencies in all actions or 

RestriCtions on practice: 

proceedings. 

Must associate with an active member N.B. It is within judge's discretion 

in good standing of bar of D. Or. who whether to pennit.govemment 

maintains a practice in D. Or.; local attorney to practice before D. Or. 

counsel will meaningfully participate 

in preparation and trial of the 

particular action or proceeding. 

Federal Judicial Center November 1995 
Circuit District Local Rulel Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a particular case) 

03 E.D.Pa. Rules 11 & Eligibility Requirements: Although no specific eligibility 

13 Member in good standing of bar of requirements for pro hnc vice 

Supreme Court of Pa. appearances are listed, rules do state 

Amended that an attorney who is not a member 

Effective of bar of E.D. Pa. can't actively 

Jan. I, 1995 participate in conduct of any trial or 

any pretrial or posHrial proceeding, 

unless, upon application, leave to do 

so is granted. 

Restrictions on practic~: 

If not member of bar of E.D. Pa., 

attorney must have, as associate 

counsel of record, a member of bar of 

E.D. Pa. in each proceeding in which 

he desires to appear, upon whom all 

pleadings, motions, notices and other 

papers can be served. 

Federal Judicial Center 

35 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

Eligibility Requirements: 

1) member in good standing of bar of 

Supreme Court of U.S . .QI bar of U.S. 

Court of Appeals for Third Circuit; 

mll! 

2) act on behalf of U.S. Government or 

any of its departments or agencies. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

Attorneys currently employed by 

or associated with an organized 

legal services program: An 

attorney may motion to be 

admitted to a limited practice for 

all causes in which attorney acts as 

counsel for the defender 

association or legal services 

program with which affiliated. 

: November 1995 

I 

.... 

'Ci °' 
-~-=~-,-- 0 - -

_____ "" .... ----.--·---- , __ '_." . .,'..''..··-;-=cc 

Circuit District Local RuleJ Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Othei Special Appearances Bar Membership in the District Courl: Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a narticular cas;\ 

"C 

i 

-..i -

0 

03 M.D.Pa. Rules201, Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Attorneys currenU}' employed by 202 & 205 l)member of good moral and 1) admitted to practice in any U.S. 1) member of bar of any U.S. District or associated with an organized professional character of bar of District Court or highest court of any Court; legal services program: and 

Adopted Supreme Court of Pa.; state; mlli member of bar of highest court in 

Effective mlli mlli 2) member of bar in good standing in another state, territories, or D.C., Jan. l, 1994 2) member in good standing in evecy 2)member of bar in good standing in every jurisdiction admitted to practice can practice before M.D. Pa. in all 

jurisdiction where admitted to every jurisdiction where admitted to in; causes in which attorney is 

practice(not disbarred or subject to practice; mlli associated with the organized disciplinary proceeding). mlli 3)not subject to pending disciplinary legal services program. 

3) not subject to pending disciplinacy proceedings in any jurisdiction; 

proceedings in any juris?-iction. mlli 

4). representing U.S. or an agency 

Restrictions on practice: thereof, or an officer of U.S. in his/her 

1) If attorney is eligible to be admitted official capacity. 

to M.D. Pa.(but chose not to be), that 

attorney mwt retain an associate 

counsel. 

2) If attorney is not eligiDle to be 

admitted to Bar of M.D. Pa. and not 

eligible to be admitted as an attorney 

for the U.S., then, in each proceeding 

in which the attorney appears, must 

have associate counsel admitted to 

practice in MD. Pa., whose 

appearance must also be entered of 

record and upon whom all papers , 

may be served; ass0date counsel must 

be fully prepared to proceed if ,non• 

resident attorney is unavailable for 

any court appearances; attendance of 

associate counsel upon hearing of any 

m_otion or taking of any testimony is 

sufficient appearance for the party(ies) 

represented. 

Federal Judicial Center 

O< : November 1995 
Circuit District Local Rule 1 Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other Special Appearances Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a particular casE!) 

03 W.D.Pa. Rule83.5.1 Eligibility Requirements: No provision for pro hac vice No provision for appearances on l} eligible to be admitted to practice appearances. behalf of U.S. 

Adopted before Supreme Court of Pa.; 

Effective l2t 

Jan. I, 1994 2) member in good standing of bar of 

Supreme Court of Pa.; 

l2t 

3)_member in good standing of 

Supreme Court of U.S., or any U.S. 

District Court. 

Restrictions on practice: 

Any member of bar of W .D. Pa., or 

any attorney qualified for 

adm.ission(either admitted generally 

or specially), or any attorney not 

admitted to bar of W.D. Pa., serving 

by appointment or election in either 

state of Pa. or for U.S. as district 

attorney of any county in Pa., 

assistant, deputy or special advisor of 

any district attorney, attorney general 

of Pa., assistant, deputy or special 

advisor of attorney general of Pa., 

legal counsel for and any assistant or - deputy of any agency of U.S. 

Government, or a magistrate or j1:15tice 

of the peace of any city, county or 

state, is not permitted. to practice in 

federal criminal law as counsel for any 

person accused of crime in. W.D. Pa. 

l 

.... 

--i 

.... 

Federal Judicial Center 

37 1 November 1995 
Circuit District Local RuieJ Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Othe~ $pedal Appearances Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requitjng membership of the 

(permission to appear and participate States or its Agencies di.strict court's bar) 

in a particular case, ? 

- 01 D.P.R Rules201~ Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

204 1) currently in good standing as 1) authorized to practice law before 1) attorney employed by U.S., its 

attorney admitted to practice before Bar of any U.S. court; agencies and dependencies; 

Amended courts of P.R.; ll.l: iln<1 

;::l 

Effective ll.l: 2) highest court of any state, territory 2) authorized by statute; 

June 16, 2) highest court of any state or D.C.; or possession of U.S. iln<1 

1994 iln<1 3) appearing as attorneys of record for 

3) received satisfactory score on an Restrictions on practice: U.S., its agencies, dependencies and 

exam approved by District Must designate member of Bar of D. officers. 

Examination Committee; P.R. as local counsel. 

iln<1 

4) served in District Court of P.R. as a 

judge, magistrate judge, clerk, chief 

deputy clerk or law clerk. for one year 

or more; 

ll.l: 

5) served in P.R. General Court of 

Justice as a Supreme Court Justice for 

1 year or as a Superior.or District 

Court Tudge for 5 years. 

01 D.RI. Rule4&5 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

1) attorney actively engaged in 1) member in good standing of bar of 1) attorney in good standing as Amended practice ~flaw within R.I.; U.S. Supreme Court, any other U.S. member of bar in every jurisdiction 

Effective iln<1 District Court; admitted to practice; 

Jan.!, 1994 2) maintains an office within R.I. for ll.l: iln<1 

practice of law; 2) member in good standing of bar 9f 2) not subject to pending disciplinary 

iln<1 highest court of any state. proceedings as member of bar in any 

3) member in good standing of bar of jurisdiction; 

Supreme Court of R.I.; Restrictions on practice: iln<1 

iln<1 1) Must associate a member of bar of 3) member of bar of any U.S. District 

4) passed an examination on federal D. R.I. w}:lo actively engages in Court; 

practice and procedure given by practice of law and maintains an office iln<1 

Board of Federal Examiners for D. within R.I.; must sign all pleadings 4) appearing and practicing as R.I.(except for applicant who is and court papers presented to clerk for attorney for U.S. or any agency thereof 

member in good standing of bar of filing. or for an officer of US. in his official 

any other U.S. District Court who can 2) U attorney who appears pro hac vice capacity. 

establish requisite experience in is an as!_lodate or member of a firm, no 

practice before federal courts and has other attorney of that firm may appear 

read and has knowledge of local rules pro hac vice within same year. of D. R.I.). 

Federal Judicial Center i November 1995 

38 
Circuit District Local Rulel Requirements and Restrictions for Requirements and Restrictions for 

Bar Membership in the District Court Pro Hae Vice Appearances 

(permission to appear and participate 

in a oarticular case, 

04 D.S.C. Rule2.02 to Eligibility Requirements: Eligibility Requirements: 

2.06 Member in good standing of Bar of 1) member in good standing of Bar of 

Supreme Court of S.C. a U.S. District Court; 

Amended .ruJ<! 

Effective 2) Bar of highest court of any state or 

July 12, D.C. 

1995 

Restrictions on practice: 

Must associate with a ·member of Bar 

of D. S.C. and both must sign each 

document served or filed in D. S.C.; 

service only on associated local 

counsel is sufficient; associated local 

counsel must be present at all pretrial 

conferences, hearings and trials and be 

prepared to actively participate if 

necessary. 

08 D.5.D Rule 83.2 Eligibility Requirements: Eligibility Requirements: 

Active member of good moral Not a member of bar of D. S.D. 

Adopted character of S.D. State Bar. 

Effective Restrictions on practice: 

July 1, 1992 Must associate with member in good 

standing of bar of D. S.D. who must 

sign all pleadings filed and continue in 

case unless substituted; associated 

local counsel must be present during 

all proceedings in connection with\... 

case; service of any paper upon local 

counsel is sufficient. 

06 E.D. Rule 83.5 Eligibility Requirements: Eligibility Requirements: 

Tenn. Attorney of good moral and An attorney whose application for 

Adopted professional character and currently admission to bar of E.D. Tenn. is 

Effective admitted to practice in highest court of pending. 

March 1, a state, territory, or D.C. 

1994 

Federal Judicial Center 

39 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

No provisit;>n for appearances on 

behalf ofU.S. 

Eligibility Requirements: 

1) admitted to practice in a U.S. 

District Court; 

.ruJ<! 

2) not qualiiied for admission to Bar of 

D.S.D.; 

.ruJ<! 

3} representing U.S., or any officer or 

agency thereof; 

.ruJ<! 

4) U.S. or any officer or agency thereof 

is a party in any action or proceeding. 

Eligibility Requirements: 

1) member in good standing of bar of 

highest court.of a state; 

.QI 

2) any other U.S. district court; 

.ruJ<! 

3) employed by U.S. Government in a 

1 nrofessional cauacinr. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

Reciprocity: Attorneys admitted 

to and entitled to practice in o~er 

U.S. district courts are permitted 

to practice in E.D. Tenn. provided 

they are members in good 

standing of bar of the U.S. District 

Court of their residence. 

: November 1995 

"'Cl 

i 

..... 

-.:i 

w 
Circuit District Local RuleJ. Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Oth~r Special Appearances Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not re"q~~g membership of the 

(pennission to appear and participate States or its Agencies district court's bar) in a narticular easel 

"C 

'* ....i 

- 06 M.D. Rulel Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Tenn. 1) member in good standing of bar of 1) member in good standing of bar of l)Any attorney representing the U.S. 

Amended state of Tenn.; any other U.S. District Court; government or any agency thereof, Effective m: and. ~ for the U.S. Attorney and 

June 1, 2) member of bar of a U.S. District 2) not a resident of and does not Assistant U.S. Attorneys for M.D. 

19994 Court who has made application for maintain an office for practice of law Tenn.; 

admission to bar of State of Tenn., and in M.D. Tenn. and. 

,I>-

has been employed less than 12 2)appear and participate in particular 

months in Office of U.S. Attorney or Restrictions on practice: actions or proceedings in official 

Office of Federal Public Defender. U attorney is not a resident of or does capacity; 

not have principal law office in state of and. 

Restrictions on practice: Tenn., must join of rec0rd when 3) member of bar of a U.S. District 

U attorney is not a resident of or does appearing on behalf of any party in Court. 

not have principal law office in state of any civil cause, associate counsel 

Tenn., must join of record when qualified to practice in M.D. ~enn. Restrictions. on practice: 

appearing on behalf of any party in who is resident of Tenn. or ha.5 U attorney is not a resident of or does 

any civil cause, associate counsel principal law office therein; providing not have principal law office In state of 

qualified to practice In M.D. Tenn. associated local counsel with notice is Tenn.., must join of record when 

who is resident of Tenn. or has suffideIJ.t; appearing on behalf of any party In 

principal law office therein; providing any civil cause, associate counsel 

associated local counsel with notice i., qualUied to practice in M.D. Tenn. 

su!fldent; who is resident of Tenn. or has 

principal law office therein; providing 

associated local counsel with notice is 

sufficient. 

06 .W.D. Rulel Eligibility Requirements: Ellglbllity Requirements: No provisions for appearances on Tenn. Llcensed to practice law in state of 1) not licensed to practice law in behalf of U.S. 

Amended Tenn. and member In good standing Tenn.; 

Effective of bar of Supreme Court of Tenn. and. 

Jan, 1, 1994 2) licensed to practice and in good 

standing of bar of highest court of any 

other state .QI any U.S. District Court, 

05 E.D. Tex. Rule2 Eligibility Requirements: Eligibility Requirements: No provisions for appearances on 1) admitted to practice before An att9rney not admitted to practice behalfofU.S. 

Amended Supreme Court of U.S., or any U.S. In E.D. Tex. (no other eligibility 

Effective Court of Appeals District Court; requirements listed). 

Sept. 2, m: 

1993 2) highest court of a state; 

and. 

3) of good moral and professional. 

character and a member in good 

standing of state and federal bars in 

which licensed. 

Federal Judicial Center November 1995 

40 
,,,.,-•Jh ,,,.,.,, •v>\h, .. - ,·<,;,,,c,r, >' 

Circuit District Local RuleJ Requirements and Restrictions for 

Bar Membership in the District Court 

05 N.D. Tex. Rule 13.1, Eligibility Requirements: 

13.3 & 13.4 1) licensed to practice law by Supreme 

Court of Tex.; 

Amended llI 

Effective 2) highest court of any state or D.C.; 

March 1, J!llil. 

1995 3) of good personal and professional 

character and member in good 

standing of state bar of jurisdiction in 

which licensed. 

Restrictions on practice: 

If attorney does not reside or maintain 

an office in N.D. Tex., attorney must 

designate as local counsel member of 

bar of N.D. Tex. who resides or 

maintains an office in Division in 

which suit is pending, or within 50 

miles thereof; or obtain leave from 

presiding judge to appear without 

designating local counsel or to 

designate a local counsel outside 

scope of Rule. Local counsel must be 

authorized to present and argue 

client's position at any hearing, and 

Merform anu du""· r-uired. 

05 S.D. Tex. Rulel Eligibility Requirements: 

1) member of good professional 

Adopted character and competence of state bar 

Effective of Tex.; 

Feb. 22, llI 

1994 2) member of any U.S. District Court. 

Restrictions on practice: 

If la""Yer resides in S.D. Tex., must 

apply in division where residing; 

applicants who do not reside in S.D. 

Tex. may apply for admission in any 

division. 

Federal Judicial Center 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(pennission to appear and participate 

in a narticular case) 

Eligibility Requirements: 

1) licensed to practice law by highest 

court of any state or D.C.; 

J!llil. 

2) not admitted to practice in N.D. 

Tex. 

Restrictions on practice: 

If attorney does not reside or maintain 

an office in N.D. Tex., attorney must 

designate as local counsel member of 

b~r of N.D. Tex. who reiides or 

maintains an office in Division in 

which suit is pending, or within 50 

miles thereof; or obtain leave from 

presiding judge to appeat without 

designating local counsel or to 

designate a local counsel outside 

scope of Rule. Local counsel must be 

authorized to present and argue 

client's position at any hearing, and 

perform any duty required. 

Eligibility Requirements: 

Lawyer not admitted to practice 

before S.D. Tex.(no other eligibility 

requirements listed) may appear as 

attorney-in-charge for a party in a case 

in S.D. Tex. 'With permission of judge 

before whom case is pending. 

41 

Requirements and Restrictions for 

Appearances_ on Behalf of the United 

States or its Agencies 

No provision for appearances on 

behalf ofU.S. 

No provision for appearances on 

behalf of U.S. 

. ...... 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

: November 1995 

? 

.... 

-.,l 

VI 
Circuit District Local Rulel Requirements and Restrictions for Requirements and Restrictions for Requirements.and Restrictions for Othe~,~~peciaJ Appearances 

Bar Membership In the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not reqUi~g membership of the 

(permission to appear and participate States or its Agencies dist.rict court's bar) 

in a nartlcular case, i 

--.I 

05 W.D. Tex. RuleAT-1 Eligibility Requirements: Eligibility Requirements: No provision for appearances on °' 

&At-3 1) member in good standing of bar of Rule lists no eligibility requirements behalf of U.S. 

any District Court, Circuit Court, or for an attorney appearing pro liac vice; 

Amended Supreme Court of U.S.; only states that U.S. Magistrate Judges 

Effective l2t and Bankruptcy Judges have 

Feb.17, 2) member in good standing of State discretion to admit attorneys pro hac 

1995 Bar of Tex.; vice upon motion; admission is limited 

l2t to case proceeding at hand and ls not 

3) active in practice in bar of any other general admission to practice. 

state arui has 5 years experience in 

practice of law. Restrictions on practice,: 

If an attorney maintains an office 

Restrictions on practice: outside W.D. Tex., judge to whom a 

If an attorney maintairu; an office case ls assigned has discretion to 

outside W.D. Tex., judge to whom a require the attorney to designate 

case is assigned has discretion to member of Bar of W.D. Tex., who 

require the attorney to designate maintains an office within the district, 

member of Bar of W.D. Tex., who as co-counsel with authority to act as 

maintains an office within the district, attorney of record for all purposes. 

as co-counsel with authority to act as 

attom""' of record for all ourooses. 

10 D.Utah Rulel03-l Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

Active member in good standing of 1) not active member of Utah State 1) represent U.S. government or any 

Adopted Utah State Bar. Bar; agency thereof; 

Effective ll1ld. ll1ld. 

March 1, Restrictions on Practice: 2) member in good standing of bar (!f 2) member of bar of any other U.S. 

1993 l)Attorney admitted to BarofD. Utah another state; district court; 

must agree, as a condition of l2t ll1ld. 

admission, to engage in a reasonable 3) member in good standing of bar of 3) provided the attorney resides 

level of pro bone work when any federal court. within D. Utah, assistant U.S. 

requested by the court. attorneys and attorneys representing 

2) If attorney is a nonresident, must agencies of government have 12 

associate a local member of Bar of D. Restrictions on practice: months from date of commission to 

Utah who must sign first pleading If attorney ls a nonresident, must take and pass the Utah State Bar exam, 

filed and continue unless another associate a local member of Bar of D. during which time these attorneys 

active local member is substituted; Utah who must sign first pleading may be provisionally admitted to Bar 

associated local attorney has filed and continue unless another ofD. Utah. 

responsibility and full authority to act active !0cal member ls substituted; 

for and on behalf of client in all associated local attorney has Note:Judge advocates of armed forces 

proceedings in connection with case, if responsibility and full authority to act of U.S. representing government in 

nonresident attorney fails to respond for and on behalf of client in all proceeding supervised by judges of D. 

to any court order. proceedings in connection with case, if Utah are not subject to requirements 

nonresident attorney fails to respond of this Rule. 

to any court order. 

Federal Judicial Center : November 1995 

42 
Circuit District Local Rule! Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other Special Appearances 

Bar Membership In the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a particular case\ 

01 D.Vt. Rulel Eligibility Requirements: Although there is no specific provision Eligibility Requirements: 

1) member whose professional addressing ellgibillty requirements for I) Any Assistant U.S. Attorney for D. 

Adopted character is good of Bar of State of Vt.; pro hllc vice appearances, rules do state Vt. who does not qualify for 

Effective l2l: that such appearances are permitted: admission to Bar of D. Vt.; 

June 1, 1994 2) member whose professional "whenever an attorney applies to be llllli 

character is good of Bar of any U.S. admitted or is admitted, for purposes 2) attorney whose professional 

District Court within the First and of a particular proceeding (pro hnc character is good of Bar of any U.S. 

Second Circuits. vice)" then the attorney has conferred District Court. · · 

disciplinary authority upon D. Vt. for 

Restrictions on practice: any alleged misconduct arising ln N.B, U.S. Attorney for D. Vt. must 

If attorney does not have a resident course Of or in preparation of such motion for admission and attorney office within D. Vt., can not file a proceeding. · must pay application fee.and take oath cause of action or make answer to and enter name in court records before 

complaints or file any motions in the Restrictions on practice: being allowed to practice. D. Vt. unless associated with a If attorney does not have a resident 

member in good standing of Bar of D. office within D. Vt., can not file a Vt. with a resident office within D. Vt. cause of action or make answer to 

complaints or file any motions in the 

0. Vt. unless associated with a 

memb~r in good stand in~ of Bar of D. 

Vt. with a resident office within D. Vt. 

03 D. V.I. Rule83 Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: Appearance by patent attorneys: 1) licensed to practice by Territorial l} member in good standing of bar of 1) admitted to practice in any U.S. Any member in good standing of 

Adopted CourtofV.I; any U._S. court; District Court; bar of any U.S. court or highest Effective llllli l2l: llllli court of any state for at least 5 

July 21, 2) not been suspended; disbarred, 2) member in good standing of bar of 2) representing U.S. or any of its . years, and not eligible for 

1992 resigned or withdrawn from practice highest court of any state; officers or agencies in any admittance to Bar of D. V.l., and 

of law and not reinstated as member llllli proceedings. admitted to practice as an attorney of bar ofD. V.I. 3) not under suspension or disbarment _ before U.S. Patent Office, and has 

by any court and thus ineligible to Bar Restrictions on practice: been continuously engaged in 

ofD. V.I. U attorney does not have an office in practice of patent law as principal 

D. V.J., must designate U.S. Attorney occupation in an established place 

to receive service of all notices or of business and office located 

Restrictions on practice: papers in that action. within D. V.J. for at least 2 years 

1) Attorney must file an appearance as prior to application; and has 

counsel of record by a member of bar sufficient pre-legal and legal of D, V.I. upon whom all doci.unents training, may be admitted to 

may bl? served; member attorney must practice before D. V.I. limited to 

file papers, enter appearances, sign cases solely arising under patent 

stipulations, or sign and receive laws of U.S. or elsewhere. 

payments. 

2) Attorney can be admitted pro hac Any patent attorney admitted this 

vice no more than a total of 3 cases in a provision must associate of record 

calendar year. with member of bar of D. VI. ? 

-....l 

-....l 

Federal Judicial Center '. November 1995 

43 
.-._,- ... --· . ,--a-::;_ - _._ 

Circuit District Local RuJel Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Oth~r~Special Appearances 

Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not req'u~ing membership of the 

(permission to appear and participate States or Its Agencies district court's bar) 

in a narticular easel 

>-c 

~ 

--..J 

04 E.D.Va. Rule7 Ellglbillty Requirements: Ellglblllty Requirements: No provision for appearances on Any attorney admitted to practice 

Member Of Bar of Supreme Court of 1) attorney from another state or D.C.; behalfofU.S. in W.D. Va. can practice in E.D. 

Amended Va. llll<i Va. upon filing of certificate 

Effective 2) rules of the feaeral courts of district showing admission to practice in 

July 1, 1994 Restrictions on practice: in which attorney maintains an office W.D.Va. 

00 

U maintaining a law office outside Va., extends similar pt'o hac via privileges 

mwt set forth Va. State Bar I.D. · to attorneys of E.D. Va, 

Number on any initial pleading filed. 

Restrictions on practice: 

Mwt associate with a resident 

member of bar of E.D. Va. who mwt 

accompany foreign atto'mey in all 

appearances, sign all pleadings or 

notices, accept service, and have 

authority so that court can deal with 

the resident associate alone in all 

matters coMected with the case, 

04 W.D.Va. Rule2 Eligibility Requirements: Eligibllity Requirements: No provision for appearances on Any attorney admitted to practice 

Attorney of good character licensed to 1) not qualified an licensed to practice behall ol U.S. in B.D. Va. is permitted to practice 

Adopted practice by state of Va. and admitted under laws of Va.; In W.D. Va. upon lillng of a Effective to practice 1n the state courts. llll<i certificate of good standing from 

Jan.1, 1988 2) lkensed and qualified to practice E.D. Va. showing admittance to 

before Supreme Court of U.S. or practice 1n that district. 

highest court of any state or D.C. 

R.estrlctions on practice: 

Must associate with a member of bar 

ofW.D. Va •. who mwt accompany· 

foreign attorney 1n all appearances, 

sign all pleadings or notices, accept 

service, and have authority so that 

court can deal'wlth the associate alone 

1n all matters coMected with the case. 

Federal Judicial Center November 1995 .. 
Circuit District Local Rule1 Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other Special Appearances 

Bar Membership in the District Court Pro Hae: Vice Appearanc:es Appearanc:es on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a particular case) 

09 E.D. Rule 1.2 Eligibility Requirements: Eligibility Requirements: No provision for appearances on 

Wash. 1) member in good standing of Wash. 1) member in good standing of bar of behalf of U.S. 

Adopted State Bar Association; any U. S. court; 

Effective <>I <>I See eligibility requirements for 

Dec. 1, 1992 2) member in good standing of bar of 2) highest court of any state or admission to bar of E.D. Wash. 

any state who is employed by U.S. or organized territory of U.S.; 

one of its agencies in a professional mo. 

capacity and, while being so 3) does not reside in nor maintain an 

employed, may have occasion to office for practice of law in state of 

appear on behalf of U.S. in E.D. Wash. Wash. 

Restrictions on practice: 

Must join of record an associate 

attorney having an office in state of 

Wash. and admitted to practice in E.D. 

Wash. who must sign all papers prior 

to filing and meaningfully participate 

in the case. 

09 W.D. General Eligibility Requirements: Eligibility Requirements: No provision for appearances on 

Wash. Rule2 1) member in good standing of Wash. 1) member in good standing of bar of behalf o!U.S. 

' 

State Bar; any U.S court, or of highest court of 

Amended <>I any other state, or organized territory See eligibility requirements for 

Effective 2) member in good standing of .bar of ofU.S.; admission to Bar ofW.D. Wash. 

Sept.3, any .state who is employed by U.S. or mo. 

1994 one of its agencies in a professional 2) does not reside nor maintain an 

capacity and, while being so office for practice of law in W.D. C 

employed, may have occasion to Wash. 

appear on behalf of U.S or one of its 

agencies in W.D. Wash. Restrictions on practic:e: 

Must join of record an associate 

attorney with an office in W.D. Wash. 

and admitted to practice in W.D. 

Wash. who must sign all pleadings 

prior to filing. 

i 

---l 

'O 

Federal Judicial Center · November 1995 

45 
_-c::_-_ · ... :.~'::.--.::----~ 

Circuit District Local Rule 1 Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Othet $pedal Appearances Bar Membership in the District Court Pro },Jae Vice Appearances Appearances on Behalf of the United (not requiring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a oarticular case) i 

-

00 

0 

04 N.D. Rule 1.04 Eligibility Requirements: Eligibility Requirements: No provision for appearances on W.Va. 1) resident of state of W.Va.; 1) nonresident or visiting attorney not behall ofU.S. 

(no .illl<i a memberofbarofN.D. W.Va.; 

adoption 2) member in good standing of bar of .illl<i 

date W.Va. and admitted to practice before 2) member in good standing of bar of 

provided) Supreme Court of Appeals of W.Va. U.S. Supreme Court, or highest court 

of any state, or D.C 

Restrictions on practice: 

1) Must associate with a member(s) of 

Bar of, and having an office for 

transaction of business in, N.D. W.Va. 

who must accept service of all 

documents; with court's consent 

associate member may be excused 

from further attendance during 

proceedings, and visiting attorney 

pennitted to continue alone. 

' 2) Visiting government attorneys in 

litigation involving federal 

government agency matters must 

associate with the U.S. Attorney in 

N.D. W. Va. who must sign all 

pleadings, notices and other papers , 

that may be served by U.S. and accept 

service of such documents , 

Federal Judicial Center ·. November 1995 

46 
Circuit District Local Rule 

04 S.D.W. RuleGenP 

Va. 2.01 

Adopted 

Effective 

Sept.1, 

1994 

. 

Federal Judicial Center 

Requirements and Restrictions for 

Bar Membership in the District Court 

Eligibility Requirements: 

Admitted to practice before Supreme 

Court of Appeals of W. Va. and in 

good standing as member of its bar. 

Requirements and Restrictions for 

Pro Hae Vice Appearances 

(pennission to appear and participate 

Jn a partiClJ.Jar case· 

Eligibility Requirements: 

1) not admitted to practice before 

Supreme Court of Appeals of W.Va.; 

.aru:I 

2) member in good standing of bar of 

U.S. Supreme Court, highest court of 

any other state, or D.C.; 

Qt 

3) employed for less than 1 year by 

U.S. Attorney or Federal Public 

Defender for S.D. W.Va.(must qualify 

as permanent member o'f bar of S.D. 

W. Va. within one year of 

employment). 

Restrictions on practice: , 

1) Must associate with a permanent 

member of bar of and who has an 

office for practice of law in S.D. W.Va,, 

upon whom all documents may be 

served, and who must sign all 

documents that require signature of an 

attorney; with consent of court, 

permanent member may be excused 

from further attendance during 

proceedings and visiting attorney may 

continue alone in particular case. 

2) If employed by U.S Attorney or 

Federal Public Defender for S.D. 

W.Va. for less than 1 year, must 

appear and practice under 

sponsorship of appointing officer. 

3) Visiting government attorneys in 

proceedings involving the 

government, must associate with_the 

U.S. Attorney in S.D. W. Va. who 'must 

sign all pleadings, notices and other 

papers that may be served by US. and 

accent service of such documents 

47 

,:,::;,;-;,,: cc:;;c, - - '",-c', 

Requirements and Restrictions for 

Appearances on Behalf of the United 

States or its Agencies 

No provision for appearances on 

behalf ofU.S. 

Other Special Appearances 

(not requiring membership of the 

district court's bar) 

: November 1995 

"C 

C§ 

-00 

.... 
~-"-C;_ ... ,.cc=·~ 

Circuit District Local Rutel Requirements and Restrictions for Requirements and Restrictions for Requirements and Restrictions for Other-Special Appearances 

Bar Membership in the District Court Pro Hae Vice Appearances Appearances on Behalf of the United (not req\liring membership of the 

(permission to appear and participate States or its Agencies district court's bar) 

in a oarticular case) -0 

~ 

00 - 07 E.D. Wis. Rule2 Eligibility Requirements: No provision for appearances pro hac No provision for appearances on N 

1) licensed attorney in good standing vice. behalf of U.S. 

Amended before any U.S. court; 

Effective llI 

Jan.15, 2) licensed attorney in good standing 

1993 before highest court of any state, or 

D.C 

Restrictions on practice: 

At any time, upon its own motion, 

E.D. Wis. may require a nonresident 

attorney to obtain local counsel to 

assist in conduct of the case. 

07 W.D.Wls. Rulel Eligibility Requirements: Eligibility Requirements: No provision for appearances on 

1) licensed attorney in good standing Any lawyer eligible for membership in behalf ofU.S. 

Amended before any U.S. court; barofW.D. Wis. 

Effective llI 

March 5, 2) licensed attorney in good standing 

1993 before highest court of any state, or 

D.C 

10 D.Wyo. Rule200 & Eligibility Requirements: Eligibility Requirements: Eligibility Requirements: 

201 Regularly admitted and licensed to 1) not admitted to practice before in 1) representing U.S. Government, or 

practice before Supreme Court of courts of Wyo.; any agency thereof; 

Adopted Wyo. JIIlli ,ru! 

Effective 2) member in good standing of bar of 2) admitted to practice in highest court 

Nov.15, another state; of any state; 

1992 JIIlli 

3) not qualified to practice in D. Wyo.; 

Restrictions on practice: ,ru! 

Must associate with a currently 4) appearing and participating in his 

licensed member of ~ar of State of 

Wyo. who must sign first pleading 

official capa~ity. 

filed and continue in case unless other N.B. U.S. Attorney for D. Wyo. must 

resident counsel is substiluted, be move for admission of non-resident 

present in Court during all Government representative. 

proceedings in corinection with case, 

and hav.e full authority to act for client Restrictions on practice: 

in all matters; service only on Wyo, U.S. Attorney for D. Wyo. must sign 

counsel is sufficient. all pleadings before filing and be 

present during all proceedings in 

connection with the case, unless 

excused by Court; U.S. Attorney must 

be designated for receiving service of 

notices. 

Federal Judicial Center , November 1995 AQ 
Attendees List for the 

Special Study Conference 

January, 1996 

Page 183 

L. RALPH MECHAM 

DIRECTOR 

CLARENCE /\. LEE. JR. 

ASSOCL~TE DIRECTOR 

~.1,,,. . .,.,_ :----..-, -.~ 

. . . . . 

AD~~~;~~~~~J~~~ THE 

WASHINGlON, D.C. 20544 

Page 185 

JOHN K. RABIEJ 

CHIEF. RULES COMMITTEE 

SUPPORT OFFICE .. 

December 29, 1995 

MEMORANDUM TO JOHN K. RABIEJ 

SUBJECT: Attendees at January 9-10, 1996 Special Study Conference 

Please note that Melanie Sloan, House Judiciary Committee, has been added to 

the list of attendees. The updated list is, as follows: 

WILL ATTEND 

Prof. Stephen B. Burbank, U. of Penn. Law Sch. 

Lawrence J. Fox, Esq., ABA Litigation Sec. 

Prof. Linda S. Mullenix, U. of Texas Sch. of Law 

.. 

Gerald K. Smith, Esq., Lewis & Roca 

Prof. Geoffrey C. Hazard, Jr., American Law Institute 

Margaret C. Love, Esq., ABA Stand. Cmte. on Ethics & Prof. Respons. 

David W. Ogden, Associate Dep. Attorney General, representing 

Hon. Jamie S. Gorelick., Dep. Attorney General 

Hon. Marvin H. Morse, Federal Bar Association 

Hon. E. Norman Veasey, Chief Justice, Supreme Ct. of Delaware 

Robert S. Peck, ATLA, or representative. 

Prof. Roger C. Cramton, (Cornell Law Sch.), Assn. Am. Law Sch. 

Jeanne P. Gray, ABA Committee on Lawyer Discipline 
Pl(lge 186 

Attendees at January 9-10, 1996 

Special Study Conference 

Page 2 

WILL ATTEND (continued) 

William J. Genego, Nat. Assn. of Criminal Defense Lawyers 

Jerome Larkin, Nat. Org. of Bar Counsel/ Attorney Registration · 

and Disciplinary Commission 

Hon. Michael D. Zimmerman, Ch. Justice, Utah Supreme Court, 

Conference of Chief Justices 

Hon. Mary M. Lisi, U.S. Dist. Judge, Providence, RI, ABA 

Committee on Lawyer Discipline, (replacing Mary M. Devlin) 

Hon. Ann C. Williams, U.S. Dist. Judge, Chicago, IL, Chair, Committee 

on Court Administration and Case Management 

Michael Lenett, Senate Judiciary Committee 

Rory K. Little, Asst. Prof., Hastings College of the Law 

Hon. Stephen H: Anderson, Chair, Committee on Federal-State 

Jurisdiction 

Hon. Richard J. Arcara, Committee on Criminal Law 

Hon. Jerome B. Simandle, U.S. Dist. Judge, Camden, NJ, Committee 

on Court Administration and Case Management 

Melanie Sloan, House Judiciary Committee 

WILL NOT ATTEND 

Newman Flanagan, Nat. Dist. Attys. Assn. 

Prof. Charles Alan Wright, American Law Institute 

Elizabeth Kessler, Senate Judiciary Committee 

cc: Honorable Alicemarie H. Stotler 

Professor Daniel R. Coquillette 

Judy ~ Krivit 

Administrative Specialist 
Page 187 

Supplement to Study of 

Federal Rules Governing Attorney Conduct 

Washington, D.C. 

June 18 -19, 1996 

I 

!f 

Page 189 

I. INTRODUCTION 

This is simply a continuation of the Study of Recent Federal Cases (1990-1995) 

Involving: Rules of Attorney Conduct, December 1, 1995, originally prepared for the 

Study Session on Federal Rules Governing Attorney Conduct (the "Study Session") 

sponsored by the Committee on Rules of Practice of the Judicial Conference of the 

United States (the "Committee") in Los Angeles on January 9-10, 1996. The purpose 

is to update the survey of federal cases in the Study to include cases reported 

between July 1, 1995 to March 23, 1996. I am once again most grateful to my 

outstanding research assistant James J.G. Dimas and Thomas J. Murphy of Boston 

College Law School, Class of 1997. Their hard work and intelligence made these 

exhaustive - and exhausting - surveys possible. 

II. METI-IODOLOGY 

This supplement of the Study of December 1, 1995 exactly follows the 

purposes and-methodology set out in the Study at pages 2-3. See also my Report on 

Local Rules Regulating: Attorney Conduct in the Federal Courts presented to the 

Committee on July 5, 1995 (hereafter "The Report"). A major computer search was 

designed using the Descriptive-Word Index of the Federal Practice Digest and the 

Westlaw data base. Thirty five key numbers were identified that closely tracked 

attorney conduct rules, and key words, phrases, and numbers were also employed. 

Initially, a restriction date of 1985 was used, but this produced arid unmanageably 

large number of cases. Even the selected restriction date of January 1, 1990 produced 

a very large number of cases, 851. /" · 

My two devoted research assistants, James J.G. Dimas and Thomas J. Murphy, 

working with the assistance of the prior work of Thomas Burton and Rebecca 

Lampert, began to read every case. It soon became clear that our research method 

was very accurate - and in the end 443 of the 851 cases located proved to involve 

rules governing attorney of the kind discussed in the July 5, 1996 Report. (The otl1er 

408 involved issues of attorney conduct in federal courts governed by Rule 11 and 

other standards. See Study Appendix IiI - Break Down of Recent Federal Cases 

(1990-1995) Involving: Rule 11 and Other "Attorney Issues" Not Counted in tl1e 

Survey). In addition, checks were done to see if any relevant cases escaped tl1e net. 

For example, every case cited by Professor Mullinex's article in the Report, Appendix 

IV, was checked, and every case cited in the Report, as well as other surveys. All 

such cases had been picked up by the system. 

Next a painstaking description of each case was prepared, with a summary of 

the facts, the attorney conduct in question, the relevant rules cited, the relevant key 

numbers, the eventual decision, and other data. These 851 standan;lized 

descriptions form the basic data base of the project. See Study, Illustration 1. At this 

point, a decision was made as which "category" of rule was chiefly involved in each 

dispute. Again, 408 were "discarded" into Study, Appendix III, because they did not 

directly involve local rules governing attorney conduct. In addition, where the local 

model was not based on the ABA Model Rules, the rules were "translated" into the 

-2-
i. 

'!.' I\ 

Page 190 

' 

Model Rule categories of Chart I, Appendix I, using a system similar to the 

comparative table on page 128 of West's Selected Statutes, Rules and Standards of 

the Legal Profession (1995 ed.). Of course, this was a "rough" fit, but it permits 

comparing "apples with apples" - and a review of individual cases showed that the 

"rough fit" was more than adequate for the purposes of this study. In addition, a 

separate table was prepared of just those cases involving local rules based on the 

ABA Code of 1969. This is set out as Chart II in Appendix II. In addition, civil and 

criminal cases were broken out on Chart I, Appendix I. 

Extending this study from July 1, 1995 through March 23, 1996 produced an 

additional 77 ABA Model Rule and Code cases, with 20 cases citing to the ABA Code. 

This brings the cumulative number of analyzed cases to 520, between January 1, 1990 

and March 23, 1996. 

III. FINDINGS 

Once again, by far the largest category of rules involved in federal disputes 

about attorney conduct were conflict of interest rules. Rules analogous to ABA 

Model Rules 1.7, 1.8, 1.9, 1.10 and 1.11 accounted for 43% of reported federal disputes, 

or 33 cases of 77. The next largest category, rules involving communication with 

represented parties, (equivalent to Model Rule 4.2) accounted for only 17%, or 13 

cases. The bulk of conflict of interest cases were civil, 28 out of 33 or 85%. See Charts 

I; II, and III in Appendices I, II and III. 

Again, by contrast, important categories within the ABA Model Rules, such as 

"Confidentiality of Information" were practically absent, despite the prominence of 

Model Rule 1.6 in ethical controversies. There was only one civil case involving 

confidentiality issues, and no criminal cases. There were only four cases involving 

the controversial Rule 1.13 (Organization as Client) and co,rporate confidentiality. 

Issues of professional confidence may arise in federal cases, but they are not resolved 

in the federal courtroom.· 

There were no other categories that exceeded 10% of the cases reported. The 

only categories with more than three cases were "Fees" (Rule 1.5), four cases, 

"Candor Toward the Tribunal" (Rule 3.3), four cases, and "Lawyer or Witness" (Rule 

3.7), four cases, all at 5.1 %. "Lawyer or Witness" and "Fees" issues were also 

relatively common in the prior data base, at 10.1 % and 4.8% respectively. "Candor 

Toward the Tribunal" issue also appeared in the prior data base, but in only 2.0% of 

the cases. 

The most important finding of the prior Study was that most Model Local 

Rule categories appear very infrequently in federal cases. This update reinforces that 

fact. Thirty-three Model Local Rule categories never appeared in this nine month 

period. Seven only appeared once. Again, the four most common categories in 

Federal Court (Conflict of Interest, Represented Parties, Lawyer or Witness and Fees) 

accounted for 54 of the 77 cases. The total of all remaining cases was only 23; or 30%, 

which matches closely with the prior Study result of 28%. 

-3-
Page 191 

Again a number of commentators have suggested that certain rule categories 

should have "custom made" federal rules for policy reasons. See, for example, the 

article by Professor Bruce Green "Whose Rules of Professional Conduct Should 

Govern Lawyers in Federal Court and How Should the Rules be Created?" attached 

as Appendix IV to the Study, and that by Professor Linda S. Mullenix "Multiforum 

Federal Practice: Ethics and Erie" attached as Appendix IV to the original Report. 

Among the categories mentioned other than those already discussed are "Choice of 

Law" (Model Rule 8.5 issues), "Confidentiality" (Model Rule 1.6 issues), "Declining 

on Terminating Representation" (Model Rule 1.16 issues), "Meritorious Claims" 

(Model Rule 3.1 issues), "Candor Toward Tribunal and Fairness to Opposing Party" 

(Model Rule 3.3 and 3.4 issues), and "Prosecutorial Responsibility" (Model Rule 3.8 

issues). If these common litigation issues are added to the four predominate issues 

discussed above, the remaining categories would have constituted only 14 cases, or 

18% of the data base. The total was 13.7% under the prior Study, and is 15% if the 

prior Study and this Supplement are combined. See Appendix III, Chart III. 

For convenience, Federal Court cases citing the ABA Code have been broken 

out separately. See Appendix II, Chart II. In addition, two charts ad<;l.ing the original 

results of the Study of December 1, 1995 and the results of this Supplement have 

been prepared. See Appendix ID, Chart ill, and Appendix IV, Chart IV. 

IV. CONCLUSIONS 

The reported federal cases examined in this Supplement, covering July 1, 1995 

to March 23, 1996, track almost exactly the categories of the prior Study of December 

5, 1995, covering cases from January 1, 1990 to June 30, 1995. In short, most reported 

federal cases involving rules governing attorney conduct involve only a very few of 

the categories represented by the ABA Model Rules, with four specific areas 

representing over 70% of all activity. Thirty categories covered by the ABA Model 

Rules never appear, and the rest are very rare. If uniform federal rules or model 

local rules are drafted to cover just the narrow "core" areas of activities directly 

related to common litigation problems in federal courts, only about 15% of reported 

federal problems would remain governed by non-uniform rules, and most of these 

would be in areas traditionally reserved to state regulation. See III, Findings, supra. 

Note: To keep this Study Group and the Committee informed on the latest .· 

literature, two relevant articles, about to be published, are attached with the author's 

permission. They are still in draft form. See Appendix V (Professor Rory Little, 

"Who Should Regulate the Ethics of Federal Prosecutor·s?") and Appendix VI 

(Professor Fred Zacharias, "Who Can Best Regulate the Ethics of Federal 

Prosecutors-(Or, Who Should Regulate the Regulators))?" In addition, with the 

kind assistance of the Administrative Office, an issue of the South Texas Law 

Review (Vol. 36, No. 3, November, 1995) will be distributed. It is entirely devoted to 

articles about ethical problems in multijurisdictional practice. Other relevant 

articles, available in print since the last Study, include: 

-4-
Page 192 

1. 

2. 

3. 

Susanna Felleman, "Ethical Dilemmas and the Multistate Lawyer: A 

Proposed Amendment to the Choice-of-Law Rule in the Model Rules 

of Professional Conduct," 95 Columbia Law Review 1500 (1995); 

Rory K. Little "Myths and Principles of Federalization," 46 Hastings 

Law Journal 1029 (1995); 

Eli J. Richardson, "Demystifying the Federal Law of Attorney Ethics," 29 

Georgia Law Review 137 (1994). 

Copies can be obtained by request to the Reporter. There are also extensive 

collections of relevant articles and treatise set out in the Report of July 5, 1995 and 

the Study of December 1, 1995, cited above, and in their Appendices. 

-5-
APPENDIX I 

Chart I - Break Down of Recent Federal Cases 

(July 1, 1995-March 23, 1996) by ABA MODEL RULE. 

Total Cases: 77 

Page 193 

Page 195 

CASES CLASSIFIED BASED ON MODEL RULES 

Rule Subject matter Civil Criminal Total 

1.1 Competence 0 0 0 

1.2 Scope of Representation 1 2 3 

1.3 Diligence ()', 0 0 

1.4 Communication 0 0 0 

1.5 Fees 4 0 4 

1.6 Confidentiality of Information 1 0 I 

1.7 Conflict of Interest: General 10 I 11 

1.8 Conflict of Int. Prohib. Trans. 2 0 2 ,-

1.9 Conflict of Interest: Fmr. Client IO 0 10 

1.10 Imputed disqualification (Firm) 5 2 7 

1.11 Govt. to private employment 0 2 2 

TOTALS IN ABOVE FIVE CATEGORIES 28 5 33 

(CONFLICT OF INTEREST) 

1.12 Former Judge or Arbitrator 0 0 0 

1.13 Organization as Client 4 0 4 

1.14 Client Under a Disability 0 0 0 

1.15 Safekeeping Property 1 0 1 

1.16 Declining / Terminating Repr. 2 0 2 

1.17 Sale of Law Practice 0 0 0 

2.1 Advisor 0 0 0 

2.2 Intermediary 0 0 0 

2.3 Eval. for use by 3rd Persons 0 0 0 

3.1 Meritorious Claims/Contentions 0 1 1 

3.2 Expediting Litigation 0 0 0 
Page 196 

Model rule Subject Matter Civil Criminal Total 

3.3 Candor Toward the Tribunal 3 1 4 

3.4 Fairness to opposing party 0 0 0 

3.5 Impart. & Decorum of Tribunal 2 0 2 

3.6 Trial Publicity 0 0 0 

3.7 Lawyer as Witness 4 0 4 

3.8 Special respons. of Prosecutor 0 I I 

3.9 Advocate I Non adjudicative 0 0 0 

4.1 Truth in Statements to Others 0 0 0 

4.2 Comm. w. Pers. Rep. Couns. 10 3 13 

4.2 Cases Involving DOJ 0 3 3 

4.3 Dealing w/ Unrep. Person 0 1 1 

4.4 Respect for Rts. of 3rd Persons 1 I 2 

5.1 Resp. of Partner or Supervisor 0 0 0 

5.2 Resp. of Subordinate Lawyer 0 0 0 

5.3 Resp. Nonlawyer Assist. 0 0 0 

5.4 Professional Independence 0 0 0 

5.5 Unauthorized Practice of Law 1 0 1 

5.6 Restr. on Rt. to Practice 0 0 0 

5.7 Resp. Reg. Law Rel. Practice 0 0 0 

6.1 Voluntary Pro Bono Publico 0 0 0 

6.2 Accepting Appointments 0 0 0 

6.3 Member in Legal Svces. Org. 0 0 0 

6.4 Law reform / Client Interests 0 0 0 

7.1 Comm. Cone. Lawyer's Svces. 0 0 0 

7.2 Advertising 0 0 0 
Page 197 

APPENDIX II 

Chart II - Break Down of Recent Federal Cases 

(July 1, 1995-March 23, 1996) by ABA code "DR Number." 

Total Cases: 20 

) 

Page 199 

CASES CITING MODEL CODE 

DR Number Subject Matter Covered by DR Number of Cases 

1-101 Maintaining Integrity & Competence 0 

' 1-102 Misconduct 0 

1-103 Disclosure of Information to Authorities 1 

2-101 Publicity 0 

2-102 Prof Notices, Letterheads & Offices 0 

2-103 -';lecommendation of Prof Employment 0 

2-104 Suggestion of Need of Legal Services 0 

2-105 Limitation of Practice 0 

2-106 Fee for Legal Services 1 

2-107 Division of Fees Among Lawyers 1 

2-108 Agreements Restricting Prac. of Lawyer 0 

2-109 Acceptance of Employment 0 

2-110 Withdrawal from Employment 0 

3-101 Aiding Unauthorized Practice of Law 0 

3-102 Dividing Fees With Non-lawyer 0 

3-103 Forming Partnership with Non-lawyer 0 

4-101 Preserv. of Confidences & Secrets of Client 0 

5-101 Refusing Employment 1 

5-102 Withdrawal: Lawyer as.Witness 5 

5-103 Avoid. Acquisition of Interest in Litigation 1 

5-104 Limiting Bus. Rel. w/ Client 1 

5-105 Refusal of Employment (copflict of interest) 7 

5-106 Settling Similar Claims of Clients 0 

5-107 Avoid. Influences by Others than the Client 0 
1,1 

'li 

ii 

''I I 

•11 ,,I 

,, 

Page200 

DR Number 

6-101 

6-102 

7-101 

7-102 

7-103 

7-104 

7-105 

7-106 

7-107 

7-108 

7-109 

7-llO 

8-101 

8-102 

8-103 

9-101 

9-102 

TOTAL 

Subject Matter Covered by DR Number of Cases 

Failing to Act Competently 0 

Limiting Liability to Client 0 

Representing Client Zealously 0 

Representing Client Within Law 0 

Perf. Duty of Prosecutor or Govt Lawyer 0 

Comm. w/ One of Adv= Interest (including represented party) 1 

. Threatening Criminal Prosecution 0 

Trial Conduct 0 

Trial Publicity 0 

Comm. w/ or Investigation of Jurors 0 

Contact w/ Witnesses 0 

Contact w/ Officials 0 

Action as Public Official 0 

Statements: Judges & Other Adj. Officials 0 

Lawyer Candidate of Judicial Office 0 

Avoiding Even Appearance oflmpropriety 1 

Preserv. Identity & Funds of Client 0 

20 
APPENDIX III 

Chart III - Break Down of Recent Federal Cases 

(1990-1996) Cumulated by ABA Model Rule 

Through March 23, 1996 

Total Cases: 520 

Page 201 

Page203 

Model rule Subject Matter Civil Criminal Total 

3.3 Candor Toward the Tribunal 9 4 13 

3.4 Fairness to opposing party 13 0 13 

3.5 Impart. & Decorum of Tribunal 4 4 8 

3.6 Trial Publicity 0 3 3 

3.7 Lawyer as Witness 40 9 49 

3.8 Special respons. of Prosecutor 1 5 6 

3.9 Advocate I Non adjudicative 0 0 0 

4.1 Truth in Statements to Others 0 2 2 

4.2 Comm. w. Pers. Rep. Couns. 41 19 60 

4.2 Cases Involving DOJ 0 17 17 

4.3 Dealing w/ Umep. Person 4 3 7 

4.4 Respect for Rts. of 3rd Persons 2 1 3 

5.1 Resp. of Partner or Supervisor 0 0 0 

5.2 Resp. of Subordinate Lawyer 0 ; 0 0 

5.3 Resp. Nonlawyer Assist. 0 0 0 

5.4 Professional Independence 4 0 4 

5.5 Unauthorized Practice of Law 6 1 7 

5.6 Restr. on Rt. to Practice 1 0 I 

. 5.7 Resp. Reg. Law Rel. Practice 0 0 0 

6.1 Voluntary Pro Bono Publico 0 0 0 

6.2 Accepting Appointments 0 0 0 

6.3 Member in Legal Svces. Org. 0 ! 0 0 

' 6.4 Law reform / Client Interests 0 I 0 0 

7.1 Comm. Cone. Lawyer's Svces. 1 0 1 

7.2 Advertising 1 I 0 1 
I I ;, 

Ii 

:11 

l ' 

Page204 

TOTAL OF CASES CLASSIFIED BASED ON MODEL RULES 

Rule Sybject matter Civil Criminal 

1.1 Competence 2 0 

1.2 Scope of Representation 4 3 

1.3 Diligence 1 3 

1.4 Communication 1 0 

1.5 Fees 24 l 

1.6 Confidentiality of Information IO 5 

1.7 Conflict of Interest: General 77 26 

1.8 Conflict of Int. Prohib. Trans. 9 I 

1.9 Conflict of Interest: Fmr. Client 81 5 

1.10 Imputed disqualification (Firm) 20 4 

1.11 Govt. to private employment 3 IO 

TOTALS IN ABOVE FIVE CATEGORIES 191 46 

(CONFLICT OF INTEREST) 

1.12 Former Judge or Arbitrator 0 0 

1.13 Organization as Client 6 0 I 

1.14 Client Under a Disability 0 0 

1.15 Safekeeping Property 3 1 

1.16 Declining / Terminating Repr. 7 l 

1.17 Sale of Law Practice 0 0 

2.1 Advisor 0 0 

2.2 Intermediary 0 0 

2.3 Eva!. for use by 3rd Persons 0 0 

3.1 Meritorious Claims/Contentions 9 3 

3.2 Expediting Litigation 0 0 

Total 

2 

7 

4 

1 

25 

15 

103 

10 

86 

24 

13 

237 

0 

6 

0 

4 

8 

0 

0 

0 

0 

12 

0 
Page 205 

Model rule Subject Matter Civil Criminal Total 

7.3 Dir. Contact w/ Prospective Cl. 2 0 2 

7.4 Comm. of Fields of Practice 1 0 1 

7.5 Firm Names & Letterheads 0 0 0 

8.1 Bar Admission & Disc. Matters 0 0 0 

8.2 Judicial & Legal Officials 2 2 4 

8.3 Reporting Prof. Misconduct 1 0 1 

8.4 . Misconduct 4 3 7 

8.5 Disc. Auth.: Choice of Law 6 1 7 

Totals ,!40() 120 520 

APPENDIX IV 

Chart IV - Break Down of Recent Federal Cases 

(1990-1996) Citing ABA Code "DR Number" 

Through March 23, 1996. 

Total Cases: 164 

Page207 

Page209 

CASES CITING MODEL CODE 

DR Number Subject Matter Covered by DR Number of Cases 

1-101 Maintaining Integrity & Competence 0 

1-102 Misconduct 4 

1-103 Disclosure of Information to Authorities 1 

2-101 Publicity 1 

2-102 Prof Notices, Letterheads & Offices 0 

2-103 ~ecommendation of Prof Employment 0 

2-104 Suggestion ofNeed of Legal Services 1 

2-105 Limitation of Practice 0 

2-106 Fee for Legal Services 12 

2-107 Division of Fees Among Lawyers 8 

2-108 Agreements Restricting Prac. of Lawyer i 1 

' ' 

2-109 Acceptance of Employment 0 

2-110 Withdrawal from Employment 3 

3-101 Aiding Unauthorized Practice of Law 0 

3-102 Dividing Fees With Non-lawyer 3 

3-103 Forming Partnership with Non-lawyer 0 

4-101 Preserv. of Confidences & Secrets of Client 7 

5-101 Refusing Employment 12 

5-102 Withdrawal: Lawyer as Witness 30 

5-103 Avoid. Acquisition oflnterest in Litigation 3 

5-104 Limiting Bus. Rel. w/ Client 2 

5-105 Refusal of Employment (conflict of interest) 37 

5-106 Settling Similar Claims of Clients ; 1 

' 5-107 Avoid. Influences by Others than the Client I 0 ' ' 
Page210 

DR Number Subject Matter Covered by DR Number of Cases 

6-101 Failing to Act Competently 0 

6-102 Limiting Liability to Client 0 

7-101 Representing Client Zealously 0 

7-102 Representing Client Within Law 1 

7-103 Perf Duty of Prosecutor or Govt Lawyer 2 

7-104 Comm w/ One of Adverne Interest (including represented party) 26 

7-105 . Threatening Criminal Prosecution 2 

7-106 . Trial Conduct 2 

7-107 Trial Publicity I 0 ! 

7-108 Comm. w/ or Investigation of Jurors 0 

7-109 Contact w/ Witnesses 2 

7-110 Contact w/ Officials 0 

8-101 Action as Public Official 0 

8-102 Statements: Judges & Other Adj. Officials 0 

8-103 Lawyer Candidate of Judicial Office 0 

9-101 Avoiding Even Appearance oflmpropriety 3 

.\l-10~ Preserv. Identity & Funds of Client 1 

TOTAL I 

I l(i4 

. 

I 
APPENDIXV 

65 Fordham L. Rev. 355, Fordham Law Review, 

October, 1996, Who Should Regulate the Ethics of Federal Prosecutors?, 

Rory K. Little [ not reprinted here] 

Page 211 

Page213 

APPENDIX VI 

65 Fordham L. Rev. 429, Fordham Law Review, 

October, 1996, Who Can Best Regulate the Ethics of Federal Prosecutors -

Or Who Should Regulate the Regulators?, Fred C. Zacharias [not reprinted here] 

Attendees List for the 

Special Study Conference 

June, 1996 

Page 215 

SPECIAL STUDY CONFERENCE 

OF FEDERAL RULES GOVERNING ATTORNEY CONDUCT 

Chair: 

Professory Daniel R Coquillette 

Standing Committee 

Participants: 

Honorable Richard J. Arcara 

WASIIlNGTON, D.C. 

JUNE 18-19, 1996 

Judicial Conference Committee _on Criminal Law 

Professor Roger C. Cramton 

Cornell Law School 

William Freivogel, Esquire 

Attorneys' Liability Assurance Society 

Ian H. Gershengom 

Special Assistant to the Deputy Attorney General 

William F. Goodman, Jr., Esquire 

American College ofTrial Lawyers 

Honorable Jamie S. Gorelick 

Deputy Attorney General, Department of Justice 

Jeanne P. Gray 

ABA Center for Professional Responsibility 

Professor Bruce A. Green 

Fordham University School of Law 

Professor Geoffrey C. Hazard, Ji. 

The American Law Institute 

Gregory P. Joseph 

ABA Litigation Section 

Page 217 
f!\ge 218 

Honorable Robert E. Keeton 

U.S. District Judge 

Professor Jerome Larkin 

National Organization of Bar Counsel/ 

Attorney Registration and Disciplinary Commission 

Honorable Mary M. Lisi 

ABA Committee on Lawyer Discipline 

Assistant Professor Rory K. Little 

Hastings College of the Law 

Margaret C. Love 

ABA Committee on Ethics and Professional Responsibility 

Honorable Marvin H. Morse 

Federal Bar Association 

Robert S. Peck 

Association of Trial Lawyers of America 

Professor Gregory C. Sisk , 

Drake University Law School 

Gerald K. Smith 

Lewis and Roca 

Seth P. Waxman 

Associate Deputy Attorney General 

Honorable Ann C. Williams 

Judicial Conference Committee on Court Administration and Case Managment 

Honorable Michael D. Zimmerman 

Conference of Chief Justices 

Page2 
JUDICIAL CONFERENCE COMMITTEE ON RULES 

OF PRACTICE AND PROCEDURE 

Chair: 

Honorable Alicemarie H. Stotler 

United States District Judge 

Members: 

Honorable Frank H. Easterbrook 

United States Circuit Judge 

Honorable Phyllis A. Kravitch 

United States Circuit Judge 

Honorable Thomas S. Ellis, III 

United States District Judge 

Honorable Jamie S. Gorelick 

Deputy Attorney General (ex officio) 

(Standing Committee) 

Professor Geoffrey C. Hazard, Jr. 

Director, The American Law Institute 

Gene W. Lafitte, Esquire 

Liskow & Lewis 

Honorable James A. Parker 

United States District Judge 

Alan W. Perry, Esquire 

Forman, Perry, Watkins & Krutz 

Sol Schreiber, Esquire 

Mi/berg, Weiss, Bershad, et al 

Honorable Alan C. Sundberg 

Carlton, Fields, Ward, et al 

Page 219 

Page3 
Page220 

Honorable E. Norman Veasey 

Chief Justice, Supreme Court of Delaware 

Honorable William R. Wilson, Jr. 

United States District Judge 

Reporter: 

Professor Daniel R. Coquillette 

Boston College Law School 

Consultants: 

Bryan A. Gamer, Esquire 

LawProse, Inc. 

Professor Mary P. Squirers 

Boston College Law School 

Joseph F. Spaniol, Jr., Esquire 

Secretary: 

Peter G. McCabe 

CHAIRS AND REPORTERS 

OF JUDICIAL CONFERENCE ADVISORY RULES COMMITTEES 

APPELLATE RULES COMMITTEE 

Chair: 

Honorable James K. Logan 

United States Circuit Judge 

Reporter: 

Professor Carol Ann Mooney 

University of Notre Dame Law School 

Page4 
BANKRUPTCY RULES COMMITTEE 

Chair: 

Honorable Paul Mannes 

Chief Judge, United States Bankruptcy Court 

Reporter: 

Professor Alan N. Resnick 

Hofstra University School of Law 

CIVIL RULES COMMITTEE 

Chair: 

Honorable Patrick E. Higginbotham 

United States Circuit Judge 

Reporter: 

Professor Edward H. Cooper 

University of Michigan School of Law 

CRIMINAL RULES COMMITTEE 

Chair: 

Honorable, D. Lowell Jensen 

United States District Judge 

Reporter: 

Professor David A. Schlueter 

St. Mary's University of 

San Antonio School of Law 

Page 221 

Page5 
· Page222 

EVIDENCE RULES COMMITTEE 

Chair: 

Honorable Ralph K. Winter, Jr. 

United States Circuit Judge 

Reporter: 

Professor Margaret A. Berger 

Brooklyn Law School 

John K. Rabiej 

OBSERVER FROM THE ADMINISTRATIVE OFFICE 

OF THE UNITED STATES COURTS 

Chief, Rules Committee Support Office 

OBSERVER FROM-THE FEDERAL JUDICIAL CENTER 

William B. Eldridge 

Research Director 

Page6 
Status Report on Study of 

Federal Rules Governing Attorney Conduct 

Professor Daniel R. Coquillette 

December 4, 1996 

Page223 

BOSTON COLLEGE 

LAW SCHOOL 

TO: Committee on Rules of Practice and Procedure 

FROM: Daniel R. Coquillette, Reporter 

DATE: December 4, 1996 

INTERIM REPORT ON STUDY OF RULES 

GOVERNING ATTORNEY CONDUCT 

Introduction 

Page 225 

During the past year, this Committee conducted two special invitational study 

conferences on federal rules governing attorney conduct. The first was on 

January 9-10, 1996 in Los Angeles and the second on June 18-19, 1996 in Washington, 

D.C. Distinguished experts attended these conferences, representing all important 

constituencies of the bench and bar. They were fairly unified in their conclusions, 

which are set out in the Committee Minutes of June 19-20, 1996 at pages 31-33, 

(hereafter, "Minutes"). 

One of these conclusions was that the Committee should seriously consider 

recommending a model local rule similar to that. recommended by the Committee 

on Court Administration and Case Management (hereafter "CACM") in 1978. That 

rule, which was included in the Model Federal Rules of Attorney Disciplinary 

Enforcement (1978) as Model Rule 4, is set out in Appendix A to this Interim Report. 

Before acting on this recommendation, however, this Committee requested 

the Reporter and the Federal Judicial Center to provide four additional studies. See 

Minutes, page 33. The studies are as follows: 1) a report on the actual experience in 

those 23 district courts that have local rules loosely based on the 1978 CACM Model 

Rule 4; 2) a report on the frequency with which federal courts have handled attorney 

discipline matters directly instead of referring them to state disciplinary authorities; 

3) a report on cases on attorney conduct in the bankruptcy court system and on the 

impact on such cases of Section 327 of the Bankruptcy Code; and 4) a report on cases 

on attorney conduct in the courts of appeals, with particular attention to Fed. 

R. App. P. 46. 

The Federal Judicial Center, with the special assistance of Marie Cordisco, has 

kindly undertaken Studies 1 and 2. I have undertaken Studies 3 and 4 as Reporter. 

All four studies should be completed in time to be circulated with the materials for 

the June 19-20, 1997 meeting of this Committee. 

STUART HousE, 885 CENTRE STREET, NEWTON, MAssACHUSETTs 02.159-1163 

617-552-8550 FAX 617-552-2615 
p~lh~~ittee on Rules of Practice and Procedure Memo 

Page 2. 

PURPOSE OF THE REPORTS 

The purpose of these four reports is to complete the Committee's study of 

local rules governing attorney conduct, and to permit action by the Committee at 

the June, 1997 meeting. As indicated in the Minutes, pages 31-33, the options 

recommended by the Special Study Conference experts are either to ask the Judicial 

Conference to promulgate a model local rule similar to the 1978 CACM model 

("Option 4", page 32) or to recommend to the Judicial Conference a few carefully 

focused uniform federal rules that are limited to certain special federal interests, 

leaving the rest of attorney governance to state law ("Option 5", page 32). Success of 

negotiations between the Conference of Chief Justices and the Department of Justice 

on ABA Model Rule 4.2 and other matters could influence this choice. It was also 

left undecided as to whether any recommendations should include bankruptcy 

courts or courts of appeals. 

Study No. 1, undertaken by the Federal Judicial Center, is designed to 

ascertain whether those district courts which have already adopted a version of the 

1978 CACM Model Rule 4 have had a good experience with it in practice. Obviously, 

this report should inform the Committee's decision whether or not to recommend 

to the Judicial Conference promulgation of a model local rule similar to the 1978 

CACM Model, or whether to recommend a different rule. 

The 1978 CACM Model Rule 4 is currently incorporated in the Federal Rules 

of Disciplinary Enforcement. See Appendix "A" to this Interim Report. It 

establishes a "dynamic conformance" to state law, i.e. it incorporates the rules of 

professional conduct of the highest court of the state in which the district court sits, 

"as amended from time to time by the state court," except otherwise provided by 

other specific local rules of the district court. One reason for this "dynamic 

conformance" with state law is the ability it gives to refer problems of attorney 

conduct directly to state disciplinary authorities, rather than having a separate 

federal apparatus for investigation and enforcement. 

Study No. 2 is designed to ascertain whether such referrals to state 

disciplinary authorities have, in general, been successful, or whether federal district 

courts have had to do direct federal investigations and engage in direct bar 

discipline. See, for example, In re Rufus Cook, 49 F.3d 263 (1995) 1995 WL 73098 (7th 

Cir.). This study should be of direct assistance to the Committee on the decision of · 

whether to recommend a model rule that incorporates "dynamic conformity" with 

state law, such as Model Rule 4. 

Study No. 3 addresses the special issues presented by bankruptcy courts and 

the bankruptcy bar. Throughout the two special invitational study sessions, I was 

greatly assisted by Gerald K. Smith, the ethics liaison from the Advisory Committee 

on Bankruptcy Rules, and by Patricia S. Channon, Deputy Assistant Chief, 

Bankruptcy Division. They have made a compelling case that no rules should be 
Committee on Rules of Practice and Procedure Memo 

Page 3. 

Page227 

adopted that include bankruptcy courts without careful study of actual cases in the 

bankruptcy courts and the effect of the Bankruptcy Code, particularly Section 327. 

(11 U.S.C. § 328). See also Edwin Smith et al "Ethical Standards in Bankruptcy 

Contexts: Disinterestedness" PLl Order No. A4-4503 (April 22-23, 1996); Gerald 

Smith, et ill, "Simultaneous Representation - Bankruptcy Representation -

Bankruptcy Code and Applicable Ethical Rules," ABA Spring Meeting Materials for 

Professional Ethics in Bankruptcy Cases Subcommittee (March 29, 1996). Study 

No. 3 should assist the Committee in whether to include bankruptcy courts in any 

recommended new rules, or whether to suggest development of independent 

standards. 

Courts of appeals also present special concerns. To begin, of course, there is 

already a uniform federal rule governing attorney conduct in courts of appeals, 

Fed. R. App. P. 46. Rule 46(b) states that a member of the bar will be subject to 

supervision or disbarment from the court when it is shown: (1) that the attorney 

has been suspended or disbarred from any other court of record or (2) has been guilty 

of "conduct unbecoming a member of the bar." Rule 46(b) also provides an 

opportunity for the attorney to show good cause why suspension or disbarment 

would be unjustified. Rule 46(c) states that a member of the bar practicing before the 

court will be subject to disciplinary action for (1) "conduct unbecoming a member of 

the bar" or (2) "for failure to comply with these rules or any rule of the court." Id. 

Rule 46(c) requires the court to provide "reasonable notice and an opportunity to 

show cause to the contrary" before taking any disciplinary action against the 

attorney. Id. 

The Supreme Court has defined the phrase "conduct unbecoming a member 

of the bar." In In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 2881 (1985), the court 

interpreted this phrase to require "conduct contrary to the professional standards 

that shows an unfitness to discharge the continuing obligations to clients or the 

courts, or conduct inimical to the administration of justice." Id. The Supreme 

Court further stated that case law, applicable court rules and the codes of 

professional conduct provide guidance in determining the scope of these 

affirmative obligations. Id.; see also Matter of Hendrix, 986 F.2d 195, 201 (7th Cir. 

1993) (Rule 11 of the Federal Rules of Civil Procedure and the Rules of Professional 

Conduct provide guidance as to actions sanctionable under Rule 46); In re Bithony, 

486 F.2d 319, 324 (1st Cir. 1973) (complex code of behavior embodied in Code of 

Professional Responsibility helps define "conduct unbecoming a member of the 

bar."). Indeed, the Supreme Court's own rules also contain the "conduct 

unbecoming a member of the bar standard. See S.Ct. R. 8. 

Because the Rule 46 "conduct unbecoming" standard has been read to include 

reference to "professional standards," seven courts of appeals have adopted local 

rules that provide more specific standards. See Report on Local Rules Regulating 

Attorney Conduct (July 5, 1995) page 8 and Chart III ("Rules of Professional Conduct 

in the 12 Circuit Courts"), prepared by me at the request of this Committee. Three 

have adopted local rules with a "dynamic conformity" to the rules adopted by the 
P_age 22& . LTnnm1ttee on Rules of Practice and Procedure Memo 

Page 4. 

highest court of the state in which attorney is admitted to practice. The 11th Circuit 

also has a rule adopting such a standard, but only to the extent that the state rules 

"are not inconsistent with the ABA Model Rules, in which case the model rules 

govern." Both the 11th Circuit and the Court of Appeals of the District of Columbia 

have local rules that show signs of influence from CACM Model Local Rule 4. Five 

courts of appeals have no local rules to supplement Rule 46, but the 4th and 8th 

Circuits have Internal Operating Procedures and the Clerk's Office of the 5th Circuit 

states that "it is longstanding court practice to look to and follow the ethical rules 

adopted by the highest court in the state of the attorney's domicile, while always 

being mindful of the ABA Model Rule." See Chart III, supra, page 2. 

The uniformity of these local appellate rules - or lack thereof - has been 

the subject of a major study by Professor Gregory C. Sisk of Drake University, "The 

Balkanization of Federal Appellate Justice," about to be published in the University 

of Colorado Law Review. Professor Sisk believes that "Ideally, the vague standard 

in Federal Rule of Appellate Procedure 46 should be deleted and replaced by a new 

standard through the Rules Enabling Act. However, although FRAP 46 does 

contain a uniform national ethical standard, a model local rules approach could still 

be applied in this context, in the nature of a clarifying or specifying local rule giving 

meaningful content to the "conduct unbecoming a lawyer" standard." (Letter, 

June 26, 1996) 

Study No. 4 will address this issue by reviewing all reported cases of attorney 

discipline in the courts of appeals and the reported record of all applications of F.R. 

App. P. 46. This study should certainly assist this Committee in deciding whether to 

recommend a model local rule for application in courts of appeals, as well as district 

courts. 

CONCLUSION 

These four studies are all underway. · Four other extensive studies have 

already been completed, and are available from the Rules Committee Support Office 

of the Adminis.trative Office. (Tel. 202-273-1820; Fax. 202-273-1826). These studies 

are: 

1. "Report on Local Rules Regulating Attorney Conduct" (July 5, 1995). (This report 

includes charts of the local rules in effect in all district courts and courts of 

appeal.) 

2. Marie Cordisco, "Eligibility Requirements for, and Restrictions on, Practice before 

the Federal District Courts," Federal Judicial Center, (November 7, 1995). (This 

excellent report describes the rules governing attorney admission in all federal 

district courts.) 
Committee on Rules of Practice and Procedure Memo 

Page 5. 

Page229 

3. "Study of Recent Cases (1990-1995) Involving Rules of Attorney Conduct" 

(December 1, 1995). (This report contains charts breaking down all recent federal 

cases by rule and subject categories,) 

4. "Supplement to Study of Recent Federal Cases (1990-1995) Involving Rules of 

Attorney Conduct" (May 14, 1996). (This study includes all reported federal cases 

between July 1, 1995 and March 23, 1996). 

Together, the eight studies will cover all aspects of rules governing attorney 

conduct in all federal courts. Assistance or suggestions from Committee members is 

always welcome. Please feel free to contact the Federal Judicial Center, Care of Marie 

Cordisco, or myself, at the following addresses: 

Marie Cordisco 

Research Division 

The Federal Judicial Center 

Thurgood Marshall Federal Judiciary Building 

One Columbus Circle, N.E. 

Washington, D.C. 20002-8003 

Tel: 202-273-4070 

Fax: 202-273-4021 

Daniel Coquillette 

Monan University Professor 

Boston College Law School 

885 Centre Street 

Newton Centre, MA 02159 

Tel: 617-552-8650 

Fax: 617-576-1933 
p~~ittee o~ Rules of Practice and Procedure Memo 

Page 6. 

APPENDIX A 

Proposed Model Local Rule, Committee on Court Administration and Case 

Management, Judicial Conference in the United States. From "Rules of Attorney 

Disciplinary Enforcement" (1978). 

MODEL RULE (4) 

Standards for Professional Conduct 

A. For misconduct defined in these Rules, and for good cause shown, and 

after notice and opportunity to be heard, any attorney admitted to practice before this 

Court may be disbarred, suspended from practice before this Court, reprimanded or 

subjected to such other disciplinary action as the circumstances may warrant. 

B. Acts or omissions by an attorney admitted to practice before this Court, 

individually or in concert with any other person or persons, which violate the Code 

of Professional Responsibility [or Rules of Professional Conduct] .. adopted by this 

court shall constitute misconduct and shall be grounds for discipline, whether or 

not the act or omission occurred in the course of an attorney-client relationship. 

The Code of Professional Responsibility [or Rules of Professional Conduct]•• adopted 

by this court is the Code of Professional Responsibility [or Rules of Professional 

Conduct]•• adopted by the highest court of the state in which this Court sits, as 

amended from time to time by that state court, except as otherwise provided by 

specific Rule of this Court after consideration of comments by representatives of bar 

associations within the state. 

MSl 

•• Bracketed language is commonly found in districts using this model rule after the adoption of the 

ABA Model Rules of Professional Conduct in 1983. 
Appendix II 

Draft Minutes 

Standing Committee Report 

June 19-21, 1996 

Page 231 

Page 233 

January 1996 Minutes - DRAFT Page 17 

Mr. Lafitte suggested that the report be "received" by the committee for its own, internal 

consideration. Justice Veasey recommended that the committees "receive" the report rather 

than "accept" it. Professor Hazard accepted this formulation as an amendment to his 

motion. 

Judge Ellis stated that he wanted assurance that the record reflect that the subcommittee 

report had been received for consideration and discussion, but that the committee had not yet 

acted on it. Judge Stotler pointed out that the full committee would look at the document again 

at the June 1996 meeting and that the members should read the latest draft carefully and submit 

to the reporter any comments they may have. 

Judge Stotler called for the vote on Professor Hazard's amended motion to receive 

the report and discharge the committee. The committee approved the motion by a vote of 

7-3. 

SPECIAL STUDY CONFERENCE ON ATTORNEY CONDUCT 

The committee sponsored a special study conference to discuss attorney conduct issues on 

Wednesday, January 11, 1996. Approximately 25 guests were invited to participate, including a 

cross-section of interested and knowledgeable attorneys, professors, representatives of 

professional organizations, and. representatives of other Judicial Conference committees. 

Because of the blizzard in the East and major disruption of air travel, several of the invitees were 

unable to be present. 

Professor Coquillette reported that the special study conference had been very frank and 

useful. He added that he had spoken to the Department of Justice and others about holding 

another special study conference and made it clear that the committee would make no decisions 

on attorney conduct until after the second special study conference. He emphasized the sensitive 

nature of attorney conduct issues and advised that the committee move with caution. 

FUTURE COMMITIEE MEETINGS 

Judge Stotler reported that the next meeting of the committee would be held on 

Wednesday through Friday, June 19-21, 1996, in Washington, D.C. The meeting would be 

preceded on Tuesday, June 18, by another conference on attorney conduct. 
Page234 

January 1996 Minutes - DRAFT Page 18 

The committee fixed January 8-10, 1997 as the date for the following meeting. The 

location for the meeting would be decided in the discretion of the chair. 

Respectfully, submitted, 

Peter G. McCabe, 

Secretary 
Study of Federal Cases (1990-1997) 

Involving Federal Rules of Appellate Procedure 46 

Standing Committee Report 

June 19 - 20, 1997 

Page235 

Page237 

I. INTRODUCTION 

This Committee is currently considering two options for changing local rules 

governing attorney conduct in the federal courts. "Option One" is the adoption of a model 

local rule similar to Model Rule IV of the Federal Rules of Disciplinary Enforcement as 

recommended by the Committee on Court Administration and Case Management 

("CACM") in 1978. "Option Two" is the adoption of uniform rules of attorney conduct 

applying to specific "core" areas of federal concern, with the provision that all other areas 

of attorney conduct are governed by state standards. See Report on Local Rules Regulating 

Attorney Conduct, July 5, 1995; Study of Recent Federal Cases Involving Rules of 

Attorney Conduct, January 9, 1996; and Supplement to Study of Recent Federal Cases 

Involving Rules of Attorney Conduct (1995-1996), May 14, 1996. At the request of the 

Committee, I have researched cases dealing with Federal Rule of Appellate Procedure 46 to 

determine what effect, if any, the proposed changes will have on this rule .and on the 

practice of Courts of Appeals. 

I am again deeply indebted to my two most talented and industrious research 

assistants, James J.G. Dimas and Thomas J. Murphy, whose hard work and intelligence 

are evident on every page of this study. In addition, I have benefited greatly from 

discussion with members of the Advisory Committee on Appellate Rules, including the 

Honorable James K. Logan, Chairman, and the Committee's Reporter, Professor Carol 

Ann Mooney, Vice President and Associate Provost of Notre Dame. Any 

Recommendations are, however, my own. In addition, any revision to Rule 46 itself, or 

any model rules designed for Courts of Appeals, should be considered by the Advisory 

Committee on Appellate Rules before action is taken. 

-1 -
Page238 

II. DISCUSSION 

Rule 46 is the uniform federal rule governing attorney conduct in the courts of 

appeals. Fed. R. App. P. 46.1 It is similar to Rule 8 of the Supreme Courts Rules,2 

1 Federal Rule of Appellate Procedure 46 provides: 

Rule 46. Attorneys 

(a) Admission to the Bar of a Court of Appeals; Eligibility; Procedure for 

Admission. An attorney who has been admitted to practice before the Supreme Court of the United 

States, or the highest court of a state, or another United States court of appeals, or by a United States 

district court (including the district courts for the Canal Zone, Guam, and the Virgin Islands), and who is of 

good moral and professional character, is eligible for admission to the bar of a court of appeals. 

An applicant shall file with the clerk of the court of appeals, on a form approved by the court and 

furnished by the clerk, an application for admission containing the applicant's personal statement showing 

eligibility for membership. At the foot of the application the applicant shall take and subscribe to the 

following oath or affirmation: 

I, _________ ,, do solemnly swear (or affirm) that I will demean myself as an attorney 

and counselor of this court, uprightly and accordingly to law; and that I will support the Constitution of the 

United States. 

Thereafter, upon written or oral motion of a member of the bar of the court, the court will act 

upon the application. An applicant may be admitted by oral motion in open court, but it is not necessary 

that the applicant appear before the court for the purpose of being admitted, unless the court shall otherwise 

order. An applicant shall upon admission pay to the clerk the fee prescribed by rule or order of the court 

(b) Suspension or Disbarment. When it is shown to the court that any member of its bar has 

been suspended or disbarred from practice in any other court of record, or has been guilty of conduct 

unbecoming a member of the bar of the court, the member will be subject to suspension or disbarment by 

the court The member shall be afforded the opportunity to show good cause, within such time as the court 

shall prescribe, why the member should not be suspended or disbarred. Upon the member's response to the 

rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if 

no response is made, the court shall enter an appropriate order. 

(c) Disciplinary Power of the Court Over Attorneys. A court of appeals may, after 

reasonable notice and the opportunity to show cause to the contrary, and after hearing, if requested, take any 

appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a 

member the bar or for failure to comply with these rules or any rule of the court. 

2 Supreme Court Rule 8 provides: 

Rule 8. Disbarment and Disciplinary Action. 

1. Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any 

court of record, or has engaged in conduct unbecoming a member of the Bar of this Court, the 

Court will enter an order suspending that member from practice before this Court and affording the 

member an opportunity to show cause, within 40 days, why a disbarment order should not be 

entered. Upon response, or if no response is timely filed, the Court will enter an appropriate order. 

2. After reasonable notice and an opportunity to show cause why disciplinary action should not be 

taken, and after a hearing if material facts are in dispute, the Court may take any appropriate 

disciplinary action against any attorney who is admitted to practice before it for conduct 

unbecoming a member of the Bar or for failure to comply with these Rules or any Rule or order of 

the Court. 

-2-
Page239 

which governs attorney conduct in the Supreme Court of the United States. Rule 46(b) 

states that a member of the bar will be subject to supervision or disbarment from the court 

when it is shown: (1) that the attorney has been suspended or disbarred from any other 

court of record or (2) has been guilty of "conduct unbecoming a member of the bar." 

Fed. R. App. P. 46(b). Rule 46(b) also provides an opportunity for the attorney to show 

good cause why suspension or disbarment would be unjustified. Rule 46(c) states that a 

member of the bar practicing before the court will be subject to disciplinary action for (1) 

"conduct unbecoming a member of the bar" or (2) "for failure to comply with these rules or 

any rules of the court." Rule 46(c) also requires the court to provide "reasonable notice and 

an opportunity to show good cause to the contrary" before taking any disciplinary action 

against the attorney. 

A. The In re Snyder Standard. See Appendix IV. 

The Supreme Court has defined the phrase "conduct unbecoming a member of the 

bar." See In re Snyder, 472 U.S. 634, 645, 105 S. Ct. 2874 (1985), attached as 

Appendix IV, infra. In the Snyder case, the. Supreme Court interpreted this phrase to 

require "conduct contrary to professional standards that show unfitness to discharge the 

continuing obligations to clients or the courts, or conduct inimical to the administration of 

justice." Id. at 645. The Supreme Court further stated that "case law, applicable court 

rules and 'the lore of the profession', as embodied in codes of professional conduct" 

provide guidance in determining the scope of these affinnative obligations. Id. at 645. See 

also Matter of Hendrix, 986 F.2d 195, 201 (7th Cir. 1993) (Fed. R. Civ. P. 11 and ABA 

Model Rules provide guidance as to conduct sanctionable under Rule 46); In re Bithony, 

486 F.2d 319, 324 (1st Cir. 1973) (complex code of behavior embodied in the ABA Code 

helps define "conduct unbecoming a member of the bar"). 

B. Local Rules Interpreting Rule 46. See Appendices V, VII. 

The Rule 46 "conduct unbecoming" standard has been consistently read to include 

reference to "professional standards" and "codes of professional conduct", including 

-3-
i 

I 

L 

I 

I' 

i' 

I ,:.1 

Page240 

federal local rules governing attorney conduct. Seven courts of appeals have adopted such 

local rules. See Report on Local Rules Regulating Attorney Conduct in the Federal Courts 

(July 5, 1995), 8. Four courts of appeal have adopted local rules that have a "dynamic 

conformity" to the rules of attorney conduct adopted by the highest court of the state in 

which a particular attorney is admitted to practice. See id. Chart ill, set out as 

Appendix VII, infra. The 11th Circuit has also adopted such a standard, but only to the 

extent that the state rules "are not inconsistent with the ABA Model Rules, in which case 

the ABA model rules govern." See Chart ill, Appendix VII. infra. Furthermore, both the 

11th Circuit and the Court of Appeals for the District of Columbia have local rules that 

show signs of influence from CACM Model Local Rule IV. See Report on Local Rules 

Regulating Attorney Conduct in the Federal Courts, Appendix V (July 5, 1995) 

(containing Model Local Rule IV). Two other courts of appeals have local rules that refer 

directly to ABA models. The 2nd Circuit's local rule refers to the ABA Code. which is still 

in effect in the state of New York, and the 6th Circuit's local rule refers to the ABA Model 

Rules and the Canons of Ethics. See Chart ill, Appendix VII, infra. 

Six courts of appeals have no local rules to supplement Rule 46.3 The 8th Circuit 

has an Internal Operating Procedure which refers to the state standard in which the attorney 

is admitted to practice. The Clerk's Office of the 5th Circuit states that "it is long-standing 

practice to look to and follow the ethical rules adopted by the highest court in the state of 

the attorney's domicile, while always being mindful of the ABA Model Rules." See Chart 

ill, Appendix VII. infra. The 7th Circuit has "Standards for Professional Conduct Within 

the Seventh Federal Judicial Circuit" which are neither based on an ABA model nor a state 

standard, but do provide additional guidance. See Jeffrey A. Parness "Enforcing 

Professional Norms for Federal Litigation Conduct: Achieving Reciprocal Cooperation," 

60 Albany Law Review 303 (1996), attached as Appendix V, infra. 

3 The United States Court of Appeals for the Federal Circuit is one of six courts of appeals which do not 

have local rules supplementing Rule 46. 

-4-

,_·:-=--=--·- - -- --
Page241 

C. Court of Appeals Cases on Rule 46. See Appendix I. 

Our research shows that, since 1990, 37 decisions of the federal courts of appeals, 

have cited Rule 46, or a local rule which supplements it.4 See Appendix I, infra, Chart I, 

Breakdown of Recent Federal Appellate Cases Citing Federal Rule of Appellate Procedure 

16 (1990-1997). Most of the decisions involve misrepresentations of law or fact to a 

tribunal, maintaining frivolous appeals, failure to prosecute criminal appeals with due 

diligence, or failure to follow court rules. See Hendrix, supra, 986 F.2d at 200-01 (Court 

sanctioned attorney under Rule 46 for failure to cite contrary authority in appellate brief); 

U.S. v. Williams. 952 F.2d 418,421, cert. denied 506 U.S. 850 (1992) (court publicly 

censured attorney for misstatements of record in appellate brief thus violating ABA Model 

Rule 3.3); U.S. v. Song. 902 F.2d 609, 610 (7th Cir. 1990) (Court sanctioned attorney 

under Rule 46 for lack of due diligence in filing criminal appeal); In re Solerwitz, 848 F.2d 

1573, 1580-81 (Fed. Cir. 1988), cert. denied, 488 U.S. 1004 (1989) (Court sanctioned 

attorney under Rule 46 for filing over 100 frivolous appeals). The rest of the decisions 

involve other types of attorney misconduct, including misappropriation of a client's funds, 

conduct by an attorney intended to disrupt a tribunal, and false accusations concerning a 

judge's qualifications and integrity. See Appendix I, infra Chart I, Breakdown of Recent 

Federal Appellate Cases Citing Federal Rule of Appellate Procedure 46 (1990-1997). See 

also Nordberg, Inc, v. Telsmith, Inc,, 82 F.3d 394, 398-99 (Fed.Cir. 1996) (Court stated 

that lawyer who verbally attacked opposing counsel during oral argument can be sanctioned 

under Rule 46); Tyson v. Jones & Laughlin Steel, 958 F.2d 756, 763 (7th Cir. 1993) 

(Court warned attorney through written opinion that he can be sanctioned for making 

unsupported charges against a judge in his appellate brief). 

4 The exact search in the CT A database was: 

"Federal Rule of Appellate Procedure 46" "FRA.P. 46" "Fed. R App. P. 46" "Fed. R. 

App. P. 46" (Rule /5 46 IP (Suspen! Disbar! Sanct! "Conduct Unbecoming")) & 

DA(AFI' 1/1/1990) 

-5-
; 

:1 

'.l 

)i 

i! 

Page 242 

A typical example is in Matter of Mix, 901 F.2d 1431 (7th Cir. 1990). There the 

7th Circuit sanctioned an attorney for failure to prosecute a criminal appeal with due 

diligence. Id. at 1432. The attorney had let deadlines pass without fifing motions for 

extensions, presented a poor quality brief, and failed to be available for oral argument Id. 

at 1431-1432. The court publicly censured the attorney as a message to other members of 

the 7th Circuit bar that "lackadaisical work is not acceptable." Id. at 1432-33. Another 

good example is in Matter of Hendrix, supra, 986 F.2d 195 (7th Cir. 1993). There the 

court sanctioned counsel for filing an appellate brief without citing contrary authority. Id.at 

200. (The attorney had failed to cite a reported decision within the circuit which the court 

would have had to overrule for the attorney's client to succeed on appeal.) The court 

directed counsel to submit a statement why he should not be sanctioned under Rule 46( c ). 

The charges were 1) violating Fed. R. Civ. P. 11 by failing to make a reasonable inquiry 

as to whether a position is warranted by existing law and, 2) possibly violating ABA 

Model Rule 3.3 for intentionally concealing dispositive authority. Id. at 201. 

In U.S. v. Williams, supra, 952 F.2d 418 the Court of Appeals for the District of 

Columbia publicly censured a government attorney for violating ABA Model Rule 3.3 by 

making material misstatements of the public record in an appellate brief. Id.at 421. The 

court publicly reprimanded the attorney. It also warned that any further similar conduct by 

the government would invoke the full extent of the court's sanctiouing power under 

Rule 46. Id. at 422. In Guentchev v. I.N.S., 77 F.3d 1036, 1039 (7th Cir. 1996), the 

court ordered a show cause hearing why an attorney should not be suspended from practice 

for failure to follow court rules. There, an attorney submitted a brief without attaching the 

immigration judge's opinion as required by Fed. R. App. P. 30. Id. at 1038. The court 

ordered a show cause hearing to have the lawyer account for his failure to competently 

represent his client. Id. at 1039. 

As these examples demonstrate, Rule 46 cases do occur, and they frequently 

require reference to the ABA Model Rules and the ABA Code, or other standards. While 

-6-
Page 243 

such cases are not numerous, there appears to be no intrinsic reason for the great disparity 

between circuit court local rules - or lack therefore - interpreting Rule 46. Professor 

Gregory C. Sisk has recently completed a major study of the proliferation of disparate local 

rules among courts of appeals. See Gregory C. Sisk, "The Balkanization of Appellate 

Justice: The Proliferation of Local Rules in the Federal Circuits," 68 Colorado L. Rev. 1 

(1997). (Copies have already been distributed to members of the Standing Committee). 

Professor Sisk has written to the Committee that: 

"Ideally, the vague standard of Federal Rule of Appellate Procedure 46 

should be deleted and replaced by a new standard through the Rules 

Enabling Act. However, although FRAP 46 does contain a uniform 

national ethical standard, a model local rules approach could still be applied 

in this context, in the nature of a clarifying or specifying local rule giving 

meaningful context to the 'conduct unbecoming a lawyer' standard." 

(Letter, June 26, 1996) 

While local rules governing attorney conduct are not, in Sisk's view, the worst examples of 

appellate rule "balkanization," nothing in the reported cases indicates any reason why a 

simpler, more uniform approach would present difficulties. 

III. CONCLUSION 

This Committee is currently considering two options for changing local rules 

governing attorney conduct in the federal courts. "Option One" would be the adoption of a 

model local rule by the Judicial Conference similar to Rule IV of the Federal Rules of 

Disciplinary Enforcement, first recommended by the Committee on Court Administration 

and Case Management in 1978. "Option Two" would be the adoption of uniform rules of 

attorney conduct, pursuant to the Rules Enabling Act, applying to specific "core" areas of 

federal concern, with the provision that all other areas of attorney conduct are to be 

govern\:(i by state standards. See the reports cited at Section I, supra. The adoption of 

either option in the federal courts of appeals would provide concrete, meaningful standards 

governing attorney conduct, instead of the vague "conduct unbecoming" standard of 

Rule 46. Either option would also follow the trend of the majority of circuit courts, which 

have adopted local rules, internal operating procedures or other standards to clarify 

-7-
Page244 

Rule 46. Finally, either option would be consistent with the Supreme Court's decision in 

Snyder, supr!!, holding that supplemental rules are often necessary in determining the scope 

of the "conduct unbecoming" standard. See In re Synder. supra, 472 U.S. 634, at 645, set 

out at Appendix IV, infra. 

A. "Option One." Model Local Rule. See Appendix 11. 

"Option One" would be a model local rule recommended by the Judicial Conference 

· and adopted by individual courts pursuant to 28 U.S.C. § 2071. Similar local rules are 

already in existence in the five courts of appeals. These look to "dynamic conformity" to 

the rules provided by the highest court in the state in which the attorney is admitted to 

practice. See Rules Governing Attorney Discipline in the U.S. Court of Appeals for the 

Eleventh Circuit, (effective October, 1992, amended January, 1996) and Report on Local 

Rules Regulating Attorney Conduct in the Federal Courts (July 5, 1995) page 8 and Chart 

III, Appendix Vil, infra. But most of these existing rules have no choice of law standard 

for attorneys licensed to practice in more than one state. See Chart III, infra. Furthermore, 

these rules do not give standards of attorney conduct for cases arise in district courts and 

are appealed to the circuit courts. See id. Presumably, the lower court's standards of 

attorney conduct should be applied in these types of cases. See !l.,.g,_ U.S. v. Balter, 91 

F.3d 427, 435 (3rd Cir. 1996) (applying district court's local rules of attorney conduct on 

appeal as to whether U.S. Attorney had violated anti-contact rule). 

Thus, the Standing Committee should consider proposing an improved, new model 

local rule for the courts of appeals. Such a rule should provide a standard of attorney 

conduct for cases appealed from a district court and a choice of law standard for attorneys 

who practice in multiple states. For the benefit of the Committee, I have included an 

example of such a model local rule in Appendix 11, infra. 5 This model local rule closely 

5The Standing Committee requested that I not submit specific proposed rules until this study was 

completed, and further studies done in relation to Bankruptcy Courts and to actual District Court practice 

(now being completed by the Federal Judicial Center). Thus the rules set out here are for example only, and 

have not been reviewed by either the Advisory Committee or Appellate Rules on the Style Subcommittee. 

The Advisory Committee has, however, been advised of the general approaches under consideration, and has 

-8-
I 

Page245 

follows Model Rule N of the Federal Rules of Disciplinazy Enforcement as recommended 

by the Committee on Court Administration and Case Management in 1978.6 In particular, 

part A(2) of the proposed model local rule traces CACM Model Rule N by imposing a 

"dynamic conformity" state standard of attorney discipline for issues of misconduct before 

the courts of appeals. In addition, part A(2) implements a choice of law standard similar to 

ABA Model Rule 8.S(b )(2) for situations where the attorney is admitted to practice in more 

than one state. Such a provision provides that an attorney is governed by the state standard 

of the state in which the attorney principally practices unless the conduct has its 

predominant effect on another state where licensed to practice. In that case, the rules of the 

other state govern. Finally, part B of the model local rule provides clarification regarding 

the range of sanctions a court of appeals may impose on an attorney, while not limiting the -

court's ability to provide alternative sanctions. This section was modeled after similar 

language in the Rules Governing Attorney Discipline in the U.S. Court of Appeals for the 

Eleventh Circuit, supra. 

expressed general concurrence, subject to future review. The two otherrequested studies should be 

completed by the next Committee meeting on June 18-20, 1997. 

6Twenty five federal courts currently have local rules that reflect in some way the wording of Model Rule 

IV, as proposed in 1978. These courts consist of 23 district courts and two courts of appeals, the 11th 

Circuit and the Court of Appeals for the District of Columbia. Twelve of these courts refer to the 

appropriate State Supreme Court's version of the ABA Model Rules of Professional Conduct. Eight refer 

to the appropriate State Supreme Court's version of the ABA Code of Professional Responsibility. Five 

adopt the language, but not the spirit of Rule IV. Of these five, two use very similar language to Rule IV, 

but refer to the ABA Model Rules and not the appropriate State Rules. The other three refer to a 

combination of the Federal Rules of Disciplinary Enforcement, the State Supreme Court's standard and 

either the ABA Model Code or ABA Model Rules as their standard of attorney conduct. The following chart 

lists the 25 courts by their actual standard of attorney conduct: 

State Rules Based on 

ABA Model Rules 

E.D.AR 

W.D.AR 

S.D.IL 

E.D.MI 

D.MN 

D.NH 

D.NJ 

M.D.NC· 

State Rules Based on 

the ABA Codes 

D.C. Appeals 

D.MA 

D.ME 

D.NE 

S.D.OH 

E.D.VA 

W.D.VA 

D.VT 

ABA Model Rules 

Directly 

D.PR 

D.DE 

-9-

Combination of State 

Rules and Other Standards 

11th Cir. 

N.D.W.VA 

S.D.W.VA 
Page246 

B. "Option Two:" Uniform Federal Rules of Attorney Conduct. See 

Appendices ID, VI 

"Option Two" achieves a similar result by a different means - directly amending 

Fed. R. App. 46. Of course, this would require the full process of the Rules Enabling Act, 

28 U.S.C. § 2072-2074. While a model local rule could be directly promulgated by the 

Judicial Conference, a change in Fed. R. App. 46 would require at least two and one half 

years, and must be submitted to Congressional examination pursuant to 28 U.S.C. 

§ 2074. 

Nevertheless, direct amendment to Fed. R. App. 46 may be desirable, particularly 

if it is decided to adopt a uniform Federal Rules of Attorney Conduct for the district courts. 

Such a change would probably be achieved in the district courts by amending Fed. R. Civ. 

P. 83, and adding an A.1;ipendix "A", containing the new Federal Rules of Attorney 

Conduct. (An example of how this could be done, provided for discussion only, is 

provided in Appendix VI, infra.) 

For the benefit of the Standing Committee, an example of such a revised Rule 46 

has been drafted to reflect this option. See Appendix ID, infra. It includes an appropriate 

standard for cases involving attorney conduct adjudicated in the district courts and appealed 

to the circuit courts, and a choice of law standard to determine the relevant state standard 

for attorneys licensed to practice in more than one state. The "revised" example of Rule 46 

is almost identical to the original Rule 46 in sections (a), (b) and (c). But there is one major 

change. The old "conduct unbecoming" standard is removed, and replaced by references to 

"the courts standards for attorney conduct." These "standards" are supplied by a new 

section (d), "Standards for Attorney Conduct." 

The new Rule 46(d)(l) in Appendix III would require a court of appeals to apply 

the district court standards of attorney conduct to any case appealed to the circuit court. 

This section was modeled after ABA Model Rule 8.5(b)(l). The new Rule 46(d)(2) would 

also provide that in all other cases the relevant state standard of attorney conduct applies, 

except as specifically provided in any new Federal Rules of Attorney Conduct. The new 

-10-
Page 247 

Rule 46(d)(2) would also provide a choice of law standard similar to ABA Model Rule 

8.5(b)(2) for those attorneys licensed to practice in more than one state. Thus, an attorney 

would be governed by the state standard where that attorney principally practices unless the 

attorney's conduct has its predominant effect in another state where the attorney is also 

licensed to practice. If so, the rules of the other state govern. 

Attorney conduct is primarily a problem for district courts, where there are many 

more reported cases. There are relatively few cases in the courts of appeals. Given that 

both the model local rule option and the uniform rule option are reasonable solutions for the 

courts of appeals, the circuits should probably follow whatever option is eventually 

adopted for the district courts. Either a new model local rule or a new uniform federal rule 

will provide better guidance for attorneys practicing before the courts of appeals than the 

existing Rule 46 jurisprudence. The first could be done through a model local rule which 

supplements Rule 46, pursuant to In re Snyder, supra, while the second could only be 

done by directly amending Rule 46. Again, the option ultimately recommended for courts 

of appeals should depend primarily on the Committee's judgment about what is best for the 

district courts. 

MS3 

-11-

Page249 

Appendix I, Chart l 

Breakdown of Recent Federal Appellate Cases Citing Federal Rule of 

Appellate Procedure 46 (1990-1997) 

Page 251 

I 

BREAKDOWN OF RECENT FEDERAL APPELLATE CASES 

CITING FEDERAL RULE OF APPELLATE PROCEDURE 46 

(1990-97)1 

Type of Attorney Misconduct I Corresponding 

Model Rule' · 

Misrepresentation of Law or Fact to the Court Rule 3.3 

Failure to Prosecute Criminal Appeals Rule 1.3 

with Due Dilligence 

Misappropriation of Clients' Funds Rule 1. 15 

Failure to Pay Court Fines Rule 3.4 

Failure to Follow Court Rules Fed.R.App.P. 46(c) 

Filing ofFrivolous Appeals Rule 3.1 

Unauthorized Practice of Law Rule 5.5 

False Statements Concerning a Judge Rule 8.2 

Disruptive Conduct in a Courtroom Rule3.5 

Confidentiality Rule 1.6 

TOTAL CASES 

iThe 37 cases cite Federal Rule of Appellate Procedure 46 or a local rule which 

supplements it. 

Number 

of Cases 

8 

5 

3 

3 

7 

7 

1 

1 

1 

1 

37 

2

This category was created to show the comparable Model Rule of Professional Conduct 

for the types of attorney misconduct sanctioned under Rule 46. 

Appendix II 

Proposed Model Local Rule Governing Attorney Conduct 

for Federal Courts of Appeals 

Page 253 

Page 255 

PROPOSED MODEL LOCAL RULE GOVERNING ATTORNEY CONDUCT 

FOR THE FEDERAL COURTS OF APPEALS1 

A. STANDARDS FOR ATTORNEY CONDUCT. The Court's standards for attorney 

conduct are as follows: 

(1) Proceedings Before District Court. For any act or omission by an attorney in a 

proceeding in a district court before which the attorney has been admitted to 

practice, the rules of attorney conduct of that district court must apply unless the 

district court's rules provide otherwise; and 

(2) All Other Acts or Omissions by Attorney. For any other act or omission by an 

attorney admitted to practice before the Court, the standards for attorney conduct 

are: 

(a) if the attorney is licensed to practice only in one state, the rules of that 

state as currently adopted by its highest court, or 

(b) if the attorney is licensed to practice in more than one state, the rules of 

the state in which the attorney principally practices as currently adopted by 

its highest court; provided, however, that if particular conduct clearly has its 

predominant effect in another state in which the attorney is licensed to 

practice, then the rules of that state as currently adopted by its highest court 

B. SANCTIONS. Discipline for acts or omissions by an attorney which violate the 

Court's standards for attorney conduct may consist of disbarment, suspension, reprimand, 

monetary sanctions (including payment of the costs of the disciplinary proceedings), 

disqualification, removal from district court Criminal Justice Act panels, removal from the 

Court's roster of attorneys eligible for practice before the Court and for appointment under 

the Criminal Justice Act, or any other sanctions the Court may deem appropriate. 

'This proposed rule is for example only, and has not been reviewed by the Subcommittee on 

Style. 

II-2-
Page256 

NOTE 

Part A(l) provides that courts of appeals will apply the district courts' standards of 

attorney discipline for any misconduct which occurs in a proceeding before the lower court. 

This section closely follows the language of Model Rule 8.5(b)(l) of the American Bar 

Association's Model Rules of Professional Conduct and Model Rule IV of the Federal 

Rules of Disciplinary Enforcement as recommended by the Committee on Court 

Administration and Case Management Part A(2) traces Model Local Rule IV by imposing 

the state standard of attorney discipline to be applied in the federal courts of appeals for all 

other attorney misconduct The state standard would be ""dynamic," i.e. the rules 

currently adopted by the state's highest court Additionally, Part A(2) also implements a 

choice oflaw standard similar to ABA Model Rule 8.5(b)(2) for situations where the 

attorney is admitted to practice law in more than one state. 

Part B provides clarification regarding the range of sanctions a court may impose on 

an attorney, while not limiting the court's ability to provide alternative sanctions. This 

language closely follows the Standards of Attorney Conduct of the Court of Appeals for the 

Eleventh Circuit 

Some courts of appeals may wish to supplement this model rule by a local rule 

permitting temporary suspension of attorneys. A good example is Interim Local Rule 46.6 

of the First Circuit, which is now being considered for permanent adoption. It reads as 

follows: 

Interim Rule 46.6 - Temporary Suspension of Attorneys. When it is 

shown to the Court of Appeals that any member of its bar has been 

suspended or disbarred from practice by a final decision issued by any other 

court of record, or has been found guilty of conduct unbecoming of a 

member of the bar of the court, the member may be temporarily suspended 

from representing parties before this court pending the completion of 

proceedings initiated under Fed. R. App. P. 46 and the Rules of 

Disciplinary Enforcement of the Court of Appeals for the First Circuit. 

Il-3-
Page257 

Appendix III 

Proposed Federal Rule of Appellate Procedure 46 

Page 259 

PROPOSED AMENDED FEDERAL RULE OF APPELLATE PROCEDURE 461 

(a) ADMISSION TO THE BAR OF COURT OF APPEALS; ELIGIBILITY; 

PROCEDURE FOR ADMISSION. An attorney admitted to practice before the Supreme 

Court of the United States, or the highest court of a state, or another United States court of 

appeals, or a United States district court (including the district court for the Canal Zone, 

Guam and the Virgin Islands), and who is of good moral and professional character, is 

eligible for admission to the bar of a court of appeals. 

An applicant shall file with the clerk of the court of appeals, on a form approved by 

the court and furnished by the clerk, an application for admission containing the applicant's 

personal statement showing eligibility for membership. At the foot of the application the 

applicant shall take and subscribe to the following oath or affirmation: 

I, ............. , do solemnly swear ( or affirm) that I will demean 

myself as an attorney and counselor of this court, uprightly and according to 

the law; and that I will support the Constitution of the United States. 

Thereafter, upon written or oral motion of a member of the bar of the court, the 

court will act upon the application. An applicant may be admitted by oral motion in open 

court, but it.is not necessary that the applicant appear before the court for the purpose of 

being admitted, unless the court shall otherwise order. An applicant shall upon admission 

pay to the clerk the fee prescribed by rule or order of the court. 

(b) SUSPENSION OR DISBARMENT. When it is shown to the court that any 

member of its bar has been suspended or disbarred from practice in any other court of 

record, or has violated the court's standards of attorney conduct, the member will be 

subject to suspension or disbarment by the court. The member shall be afforded an 

opportunity to show good cause, within such time as the court shall prescribe, why the 

member should not be suspended or disbarred. Upon the member's response to the rule to 

show cause, and after hearing, if requested, or upon expiration of the time prescribed for a 

response if no response is made, the court shall enter an appropriate order. 

(c) DISCIPLINARY POWER OF THE COURT OVER ATTORNEYS. A court of 

appeals may, after reasonable notice and an opportunity to show cause to the contrary, and 

after hearing, if requested, take any appropriate disciplinary action against any member of 

the bar who practices before it and violates the court's standards of attorney conduct or 

fails to comply with these rules or any rule of the court. 

(d) STANDARDS FOR ATTORNEY CONDUCT. The court's standards for attorney 

conduct are as follows: 

(I) Proceedings Before District Court. For any act or omission of an attorney 

before a district court of this circuit which the attorney has been admitted to 

practice, the rules of attorney conduct of that district court must apply unless the 

rules of that district court rules otherwise provide; and 

l New language is in italics. This proposed rule is for example only, and has not been reviewed by the 

Advisory Committee on Appellate Rules or the Subcommittee on Style. The reference to the "Federal 

Rules of Attorney Conduct" in Appendix A of Rule 83 of the Federal Rules of Civil Procedure is, of 

course, purely hypothetical, and assumes that the Rules Committees decide to adopt uniform rules of 

attorney conduct for the district courts. See Appendix VI, fil!IID!, for an example "Federal Rules of Attorney 

Conduct" 

ill-2-
'I Page260 

(2) All Other Acts and Omissions by Attorney. For any other act or omission of an 

attorney admitted to practice before the court, except as othe,wise provided by 

specific rule of the Federal Rules of Attorney Conduct located in Rule 83, Appendix 

A, Federal Rules of Civil Procedure, the standards for attorney conduct are: 

(A) if the attorney is licensed to practice only in one state, the rules of that 

state as currently adopted by its highest court, or 

(B) if the attorney is licensed to practice in more than one state, the rules of 

the state in which the attorney principally practices as currently adopted by 

its highest court apply; provided, however, that if particular conduct clearly 

has its predominant effect in another state in which the attorney is licensed 

to practice, then the rules of that state as currently adopted by its highest 

court. 

III-3-
Page261 

NOTES 

All italicized language are proposed amendments to Federal Rule of Appellate 

Procedure 46. 

Rule 46(d)(l) follows closely Section (A)(l) of the Proposed Model Local Rule 

Governing Attorney Conduct in the Federal Courts of Appeals. See Appendix JI, infra. It 

provides that the courts of appeals will apply the district courts' standards of attorney 

discipline for any misconduct which occurs in the lower court. This section is also modeled 

after Rule 8.5(b)(l), American Bar Association Model Rules of Professional Conduct and 

Model Local Rule IV of the Federal Rules of Disciplinary Enforcement, as recommended in 

1978 by the Committee in Court Administration and Case Management 

Rule 46(d)(2) is also similar to Section A(2) of the Proposed Model Local Rule 

Governing Attorney Conduct in the Federal Courts of Appeals. See Appendix JI, infra. It 

does, however, make specific provision for adopting uniform Federal Rules of Attorney 

Conduct. See Appendix VI, supra. The relevant state standard would govern all other 

attorney misconduct. The relevant state standard is determined by a choice of law 

provision similar to American Bar Association Model Rule 8.5(b)(2). 

Ill-4-

Appendix lY 

In re Snyder 

472 U.S. 634 (1985) 

Page263 

634 OCTOBER TERM, 1984 

""O 

d'c1 

Syllabus 472 u. s. 

" N 

°' V, IN RE SNYDER 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

No. 84-310. Argued April 16, 1985-Decided June 24, 1985 

Petitioner, who was appointed by the Federal District Court for the 

District of North Dakota to represent a defendant under the Criminal 

Justice Act (Act), was awarded almost $1,800 by the court for services· 

and expenses in handling the assignment. As required by the Act with 

regard to expenditures for compensation in excess of $1,000, the Chief 

Judge of the Court of Appeals for the Eighth Circuit reviewed the claim, 

found it to be insufficiently documented, and returned it.with a request 

for additional documentation. Because of computer problems, petitioner could not readily provide the information in the requested form, 

but flied a supplemental application. The Chief Judge's secretary again 

returned the application, stating that petitioner's documentation was 

unacceptable; petitioner then discussed the niatter with the District 

Judge's secretary, who suggested that he write .a letter expressing his 

views. In October 1983, petitioner wrote a letter to the District Judge's 

secretary in which (in an admittedly "harsh" tone) he declined to submit 

further documentation, refused to accept further assignments under the 

Act, and criticized the administration of the Act. Viewing the letter 

as seeking changes in the process for providing fees, the District Judge 

discussed those concerns with petitioner and then forwarded the letter 

to the Chief Judge. In subsequent correspondence withithe District 

Judge, the Chief Judge of the Circuit stated, inter alia, that he considered petitioner's October letter to be "totally disrespectful to the federal 

courts and to the judicial system," and that unless petitioner apologized 

an order would be issued directing petitioner to show cause why he 

should not be suspended from practice in the Circuit. After. petitioner 

declined to apologize, an order was issued directing petitioner to show 

cause why he should not be suspended for his "refusal to carry out his 

obligations as a practicing lawyer and officer of [the] court" because of 

his refusal to accept assignments under the Act; however, at the subsequent hearing the Court of Appeals focused on whether petitioner's 

October letter was disrespectful, and petitioner again refused .to. apologize for the letter. Ultimately, the Court of Appeals suspended petitioner from the practice oflaw in the federal courts in the Circuit for six . 

months, indicating that its action was· based on petitioner's "refusal to 

show continuing respect for the court,'' and specifically finding that petitioner's "disrespectful statements" in his October letter as to the court's 

634 

IN RE SNYDER 

Syllabus 

635 

administration of the Act constituted·"contumacious conduct'' rendering 

him "not presently fit to practice law in the federal courts." 

Held: Petitioner's conduct and expressions did not warrant his suspension 

from practice. Pp. 642-647. · · 

(a) .Under Federal Rule of Appellate Procedure 46, which sets forth 

the standard for disciplining attorneys practicing before the courts of appeals, .an attorney may be suspended or disbarred if found guilty of "conduct unbecoming a member of the bar of the court." The quoted phrase 

must be read in light of the complex code of behavior to which attorneys 

are subject, reflecting the burdens inherent in the attorney's dual obligations to clients and to the system of justice. In this light, "conduct 

unbecoming· a member of the bar" is condtict contrary to prOfessional 

standards that shows an unfitness to discharge continuing obligations to 

clients or the courts, or conduct inimical to the administration of justice. 

Pp. 642-645. 

(b) Petitioner's refusal to submit further documentation in support of 

his fee request could afford a basis for declining to award a fee, but the 

record does not support the Court of Appeals' action suspending petitioner from practice; the submission of adequate docum~ntation was only 

a prerequisite to the collection of his fee, not an affirmative obligation 

required by his duties to a client or the court. Nor, as the Court of 

Appeals ultimately concluded, was petitioner legally obligated under the 

terms of the local plan to accept cases under the Act. A lawyer's criticism of the administration of the Act or of inequities in assignments 

under the Act does not constitute cause for suspension; as officers of the 

court, members of the bar may appropriately express criticism on such 

matters.,· Even assuming that petitioner's October letter exhibited an 

unlawyerlike rudeness,· a single incident of rudeness or lack of professional courtesy-in the context here-does not support a finding of contemptuous or contumacious conduct, or a finding that a lawyer is not 

presently fit to practice law in the federal courts; nor does it rise to the 

level of "conduct unbecoming a member· of the bar"· warranting suspension from practice. Pp. 645,-647. 

734 F. 2d 334, reversed. 

BURGER, .c. J., delivered the opinion of the Court, in which all other 

Members joined except BLACKMUN, J., who took no part in the decision of 

the case. 

David L. Peterson argued the cause for petitioner. With 

him on the briefs were Robert P. Bennett, John.C. Kapsner, 

Charles L. Chapman, and IrvinB. Nodland. 
,·~-,c·-,~·" '"=',:-->M~.S<'""_,..-A•0----,-.--• ·/' ,,,., 

636 OCTOBER TERM, 1984 

Opinion of the Court. 472 u. s. 

John J. Greer argued the cause for respondent United 

States Court of Appeals for the Eighth Circuit. With him 

on the brief was Ross H. Sidney.* 

CHIEF JUSTICE BURGER delivered the opinion of the 

Court. · 

We granted certiorari to review the judgment of the Court 

of Appeals suspending petitioner from practice in all courts of 

the Eighth Circuit for six months. · 

I 

In March 1983, petitioner Robert Snyder was appointed by 

the Federal District Court for the District of North Dakota 

to represent a defendant under the Criminal Justice Act. 

After petitioner completed the assignment, he submitted a 

claim for $1,898.65 for services and expenses. The claim 

was reduced by the District Court to $1,796.05. 

Under the Criminal Justice Act, the Chief Judge of the 

Court of Appeals was required to review and approve expenditures for compensation in excess· of $1,000.' 18 U. S. C. 

§ 3006A(d)(3). Chief Judge Lay found the claim insufficiently documented, and he returned it with a request for 

additional information. Because of technical problems with 

his computer software, petitioner could not readily provide 

.the information in the form requested by the Chief Judge. 

He did, however, file a supplemental application. 

The secretary of the Chief Judge. of the Circuit again returned the application, stating that the proffered documentation was unacceptable. Petitioner then discussed the matter 

with Helen Monteith, the District Court Judge's secretary, 

-owho suggested he write a Jetter expressing his. view. Peti-

°" " *Charles S. Sim8 filed a brief for the American Civil Liberties Union as 

~micus curiae urging reversal. 

a- Frank E. Bazler and Albert L. Bell filed it brief for the Ohio State Bar 

Association as a"micus curiae. · 

'The statutory limit has since been raised to $2,000. 18 U.S. C. 

§ 3006A(d)(2) (1982 ed., Supp. Ill). 

~NRE SNYDER 637 

634 Opinion of the Court 

tioner then wrote the letter that led to this case. The letter, 

addressed to Ms. Monteith, read in part: 

"In the . first place, I am appalled by the amount of 

money which the federal court pays for indigent criminal 

defense .work. The · reason that so few attorneys in 

Bismarck accept this work is for that exact reason. We 

have, up to this point; still accepted the indigent appointments, because of a duty to our profession, and the fact 

that nobody els(l will do it. 

"Now, however, not only are we paid an amount of 

money which do.es not even cover our overhead, but we 

have to go through extreme gymnastics even to receive 

the puny amounts which the federal courts authorize for 

this work.. We have sent you everything we have concerning. our representation, and I am not sending you 

anything else. You can take it or leave it. 

"Further, I ani extremely disgusted by the treatment 

of us by the Eighth Circuit in this case, and you are instructed to remove my name from the list of attorneys 

who will accept criminal indigent defense work. I have 

simply had it. · 

"Thank you for your time and attention." App. 

14-16. 

The District Court Judge viewed this Jetter as one seeking 

changes in the process for providing fees, and discussed these 

concerns with petitioner. The District Court Judge then 

forwarded the Jetter to the Chief Judge of the Circuit. The 

Chief Judge in turn .wrote to the District Judge, stating that 

he considered petitioner's letter 

"totally disrespectful to the federal courts and to the judicial system, . • It demonstrates. a total lack of respect 

for the Jegalprocess and the courts." Id., at 16. 

The Chief Judge expressed concern both about petitioner's 

failure· to ltfollow the guidelines and [refusal] to cooperate 

with the court," and questioned whether, "in view of the let-
638 OCTOBER TERM, 1984 

"O Opinion of the Court 472 u. s. ~ 

~ter" petitioner was "worthy of practicing law in the federal 

2):ourts on any matter." He stated his intention to issue an 

order to show cause why petitioner should not be suspended 

from practicing in any federal court in the Circuit for a period 

of one year. Id., at 17-18. · Subsequently, the Chief Judge 

wrote to the District Court again, stating that if petitioner 

apologized the matter would be dropped. At this time, the 

Chief Judge approved a reduced fee for petitioner's work of 

$1,000 plus expenses of $23.25. 

After talking with petitioner, the District Court Judge 

responded to the Chief Judge as follows: 

. "He [petitioner] sees his letter as an expression of an 

honest opinion, and an exercise of his right of freedom of 

speech. I, of course, see it as a youthful and exuberant 

expression of annoyance which has now risen to the level 

of a cause .... 

"He has decided not to apologize, although he assured 

me he did not intend the letter as you interpreted it." 

Id., at 20. 

The Chief Judge then issued an order for petitioner to 

show cause why he should not be suspended for his "refusal 

to carry out his obligations as a practicing lawyer and officer 

of [the] court" because of his r,efusal to accept assignments 

under the Criminal Justice Act. Id., at 22. Nowhere in 

the order was there any reference to any disrespect in petitioner's letter of October 6, 1983. 

Petitioner requested a hearing on the show cause order. 

In his response to the order, petitioner focused exclusively on 

whether he was required to represent indigents under the 

Criminal Justice Act. He contended that the Act did not 

compel lawyers to represent indigents, and he noted that 

many of the lawyers in his District had declined to serve.' 

'A resolution presented by the Burleigh County Bar Association to· the 

Court of Appeals on petitioner's behalf stated that of the 276 practitioners 

eligible to serve on the Criminal Justice Act panel in the Southwestern 

INRE SNYDER 639 

634 Opinion of the Court 

He also informed the court that prior to his withdrawal from 

the Criminal Justice Act panel, he and his two partners had 

taken 15 percent of all the Criminal Justice Act cases in their 

district. 

At the hearing, the Court of Appeals focused on whether 

petitioner's letter of October 6, 1983, was disrespectful, an 

issue not mentioned in the show cause order. At one point, 

Judge Arnold asked: "I am asking you, sir, if you are prepared to apologize to the court for the tone of your letter?" 

Id:, at 40. Petitioner answered: "That is not the basis that 

I am being brought forth before the court today." Ibid. 

When the issue again arose, petitioner protested: "But, it 

seems to me we're getting far afield here. The question is, 

can I be suspended from this court for my request to be 

removed from the panel of attorneys." Id., at 42. 

· Petitioner was again offered an opportunity to apologize 

for his letter, but he declined. At the conclusion of the hearing, the Chief Judge stated: 

"I want to make it clear to Mr. Snyder what it is the 

court is allowing you ten days lapse here, a period for 

you to consider. One is, that, assuming there is a general requirement for all competent lawyers to do pro 

bono work that you stand ·willing and ready to perform 

such work ahd will comply with the guidelines· of the 

statute. And secondly, to reconsider your position as 

Judge Arnold has requested, concerning the tone of your 

letter of October 6." Id., at 50. 

Following the hearing, petitioner wrote a letter to the court, 

agreeing to "enthusiastically obey [the] mandates" of any 

new plan for the implementation of the Criminal Justice Act 

in North Dakota, and to "make every good faith effort possible" to comply with the court's guidelines regarding com~ 

Division of the District of North Dakota, only 87 were on the panel. App. 

85. 
i; II - ·, - · -=m· =c~·-cc-c• -m"-··· •-- "' •--v-·--~- . -----~~-·-·:·•, 

640 OCTOBER TERM, 1984 

Opinion cif the Court 472 u. s. 

pensation under the Act. Petitioner's letter, however, made. 

no mention of the October 6, 11.983, letter. Id., at 51-52. 

The Chief Judge then wrote to Snyder, stating among 

other things: 

"The court expressed its opinion at the time of the oral 

hearing that interrelated with our com:ern and the issuance of the order to show cause was the disrespect that 

you displayed to the court by way of your letter addressed to Helen Montieth [sic], Judge Van Sickle's secretary, of October 6, 1983. The court expressly asked if 

you would be willing to apologize for the torie of the 

letter and the disrespect displayed. You serve as an 

officer of the court and, as such, the Canons of Ethics 

require every lawyer to maintain a respect for the court 

· as an· institution. 

"Before circulating·your letter of February 23, I would 

appreciate your response to Judge Arnold's specific request, and the court's request, for you to apologize for 

the letter that you wrote. · · • 

"Please let me hear from you by return mail. I am . 

confident that if such a letter is forthcoming that · the 

court will dissolve the order." Id., at 52-53. · (Emphasis added.) · 

Petitioner responded to the Chief Judge:· 

"I cannot, and will never, in justice to my conscience, 

apologize for what I consider to be telling the truth,. 

albeit in harsh terms. . . . · · · 

"It is unfortunate that the respective positions in the 

proceeding have so hardened. However, I considerthis 

to be a matter of principle, and if one stands on a princi-

~ pie, one must be willing to accept the consequences." 

°8 Id., at 54. 

~ After receipt ofthis letter, petitioner was suspended from 

the practice of law in the federal courts in the Eighth Circuit· 

for six months. 734 F. 2d 334 (1984). The opinion stated 

UM.¥¥K ii,_,_- .. L ;li I!! 

IN RE SNYDER 641 

634 Opinion of the Court 

that petitioner ''contumaciously refused to retract his previous remarks or apologize to the court." Id., at 336. 1' It 

continued: 

"[Petitioner's] refusal to show continuing respect for the 

court and his refusal to demonstrate a sincere retraction 

of his admittedly 'harsh' statements are sufficient to 

demonstrate to this court that he is not presently fit to 

practice law in the federal courts. All courts depend. on 

the highest level of integrity and respect not only from 

the judiciary .but from the lawyers who serve in the court 

as well. Without public display of respect for the judicial branch of government as an institution by lawyers, 

the·,Iaw cannot survive .... Without hesitation we find 

Snyder's disrespectful statements as to this court's administration of CJA contumacious conduct. We deem 

this unfortunate. 

"We find that Robert Snyder shall be suspended from 

the practice of law in the federal courts of the Eighth 

Circuit for a period of six months; thereafter, Snyder 

should make application to both this court and the federal district court cir North Dakota to be readmitted." 

Id., at 337. (Emphasis added.) 

The opinion specifically stated that petitioner's offer to serve 

in Criminal Justice Act cases in the future if the panel was 

equitably structured had "considerable merit." Id., at 339. 

Petitioner moved for rehearing en bane. In support of his 

motion, he presented an affidavit from the District Judge's 

secretary-the addressee of the October 6 letter-stating 

that she had encouraged him to send the letter. He also 

submitted an affidavit from the District Judge, which read 

in part: 

"I did not view the letter as one of disrespect for the 

Court, but rather one of a somewhat frustrated lawyer 

hoping that his comments might be viewed as a basis for 

some chariges in the process. 

~ 
~--~~~~--"---"=~-"-'---'-=--~=--·=· ~----~~--==~~-····-~-------i 

642 OCTOBER TERM, 1984 

"C 

~ 

~-

Opinion of the Court 472 u. s. 

" ... Mr. Snyder has appeared before me on a number 

of occasions and has always CO!lJpetently represented his 

client, and has shown the highest respect to the court 

system and to me." App. 83-84. (Emphasis added.) 

'-0 

The petition for rehearing en bane was denied.' An opinion for the en bane court stated: 

"The gravamen of the situation is that Snyder in his letter [ofOctober 6, 1988] became harsh and disrespectful 

to the Court. It is one thing for a_ lawyer to complain 

factually to the Court, it is another for counsel to be 

disrespectful in doing so. 

" ... Snyder states that his letter is not disrespectful. 

We disagree. In our view, the letter speaks for itself." 

734 F. 2d, at 343. (Emphasis added.) 

The en bane court opinion stayed the order of suspension 

for 10 days, but provided that the stay would be lifted if 

petitioner failed to apologize.· He did not apologize, and the 

order of suspension took effect. 

We granted certiorari, 469 .U. S. 1156 (1985). We 

reverse. 

II 

A 

Petitioner challenges his suspension from practice on the 

grounds (a) that his October 6, 1983, letter to the District 

Judge's secretary was protected by the First Amendment, 

(b) that he was denied due process with respect to the notice 

of the charge on which he was suspended, and (c) that his 

challenged letter was not disrespectful or contemptuous. 

We avoid constitutional issues when resolution of such issues 

is not necessary for disposition of a case. Accordingly, we 

consider first whether petitioner's conduct and expressions 

'734 F. 2d, at 341. Circuit Judges Bright and McMillian voted to grant 

the petition for rehearing en bane. 

IN RE SNYDER 643 

634 Opinion of the Court 

warranted his suspension from practice; if they did not, there 

is no occasion to reach petitioner's constitutional claims. 11 

Courts have long recognized an inherent authority to suspend or disbar lawyers. Ex parte Garland, 4 Wall. 333, 

378-379 (1867); Ex parte Burr, 9 Wheat. 529, 531 (1824). 

This inherent power derives from the lawyer's role as an officer of the court which granted admission. Theard v. United 

States, 354 U. S. 278, 281 (1957). The standard for disciplining attorneys practicing before the courts of appeals' is set 

forth in Federal Rule of Appellate Procedure 46:' 

"(b) Suspension or Disbarment. When it is shown to 

the court that any member of its bar has been suspended 

or disbarred from practice in any other court of record, 

or has been guilty of conduct unbecoming a member of 

• The panel opinion made explicit that Snyder was suspended from the · 

District Court as well as the Court of Appeals by stating: "[T]hereafter 

Snyder should make application to both this court and the federal district 

court of North Dakota to be readmitted." 734 F. 2d, at 337 .. 

Federal R.ule of Appellate Procedure. 46 does not appear to give author-

. ity to the Court of Appeals to suspend attorneys from practicing in the District Court. .As the panel opinion itself indicates, the admission of attar-

. neys to practice before the District Court is placed, as an initial matter, 

before the District Court itself. The applicable Rule of the District Court 

indicates that a suspension from practice before the Court of Appeals creates only _a rebuttable presumption that suspension from the District Court 

is in order,.:;_ The Rule appears to entitle ihe attorney to a show cause hearing before the District Court. Rule 2(e)(2), United States District Court 

for the District of North Dakota, reprinted in Federal Local Rules for Civil 

and Admiralty Proceedings (1984). A District Court decision would be 

· subject to review by the Court of Appeals. · 

'The Court of Appeals relied on Federal Rule of Appellate Procedure 

46(c) for its action. While the language of Rule 46(c) is not without some 

ambiguity, the accompanying note of the Advisory Committee on Appellate Rules, 28 U. S. C. App., p. 496, states that this provision "is to make 

explicit the power of a court of appeals to impose sanctions less serious 

than suspension or disbarment for the breach of rules," The appropriate 

provision under which to consider the sanction of suspension would have 

been Federal Rule of Appellate Procedure 46(b), which by its terms deals 

with "su·spension or disbarment." 
,,-~---·--:-:=:..::::.::'.: 

~-Y •• ~ • •.•- "C• 

=-- __________ ·-"'"_,,__,~~ c· ,•-· ,-,.~ --,a···~·v··· ~--,"----.·-··'""" '· · · 

644 OCTOBER TERM, 1984 

Opinion of th!! Court 472 u. s. 

· the bar of the court, he will be subject to suspension or 

disbarment by the court. The member shall be afforded 

an opportunity to show good cause, within such time as 

· the court shall prescribe, why he should not be suspended or disbarred. Upon his response to the rule to 

show cause, and after hearing, if requested, or upon 

expiration of the time prescribed for a response if no 

response is made, the court shall enter an appropriate 

order." (Emphasis added.) 

The phrase "conduct unbecoming .a member of the bar" 

must be read in light of the "complex code of behavior" to 

which attorneys are subject. In re Bithoney, 486 F. 2d 319, 

324 (CAl 1973). Essentially, this reflects the burdens inherent in the attorney's dual obligations to clients and to 

the system of justice. Justice Cardozo once observed: 

"'Membership in the bar is a privilege burdened. with 

conditions.' [An attorney is] received into that ancient . 

fellowship for something niore than private gain. He 

[becomes] an officer of the court, and, like the court 

itself, an instrument or agency to advance the ends of 

justice." People ex rel. Karlin v. Culkin, 248 N. Y. 

465, 470-471, 162 N. E. 487, 489 (1928) (citation 

omitted). 

As an officer of the court, .a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted 

· only to lawyers. Admission creates .a license not only to 

advise and counsel clients but also to appear in court and try 

cases; as an officer of the court, a lawyer can cause persons to 

drop their private affairs and be called as witnesses in court, 

· ;,<=lind for depositions and other pretrial processes that, while 

~ subject to the ultimate control of the court, may be conducted 

~utside courtrooms. The license granted by the court re0quires members of the bar to conduct themselves in a manner 

634 

IN RE SNYDER 

Opinion of the Court 

645 

compatible with the role of courts in the administration of 

justice. · · 

Read in light of the traditional duties imposed on an attorney, it is clear that "conduct unbecoming a member of the 

bar" is conduct contrary to professional standards that shows 

an unfitness to discharge continuing obligations to clients 

or the courts, or conduct inimical to the administration of 

justice. More . specific guidance is provided by case law, 

applicable court rules, and "the lore of the profession," as 

embodied in codes of professional conduct.• 

B 

Apparently relying on an attorney's obligation to avoid 

conduct that is "prejudicial to the administration of justice,"' 

the Court of Appeals held that the letter of October 6, 1983, 

'The Court of Appeals stated that the standard of professional conduct 

expected of an attorney is defined by the ethical code adopted by the licensing authority of ari attorney's home state, 734 F. 2d, at 336, n. 4, and cited 

the North Dakota Code of Professional Responsibility as the controlling 

expression of the conduct expected of petitioner. The state code of professional responsibility does not by its own terms apply to sanctions in the . 

federal courts. Federal courts admit and suspend attorneys as an exercise 

of their inherent power; the standards imposed are a inatter offederal law. 

Hertz .v. United States, 18 F. 2d 52, 54-55 (CAB 1927). 

The Court of Appeals was entitled, however, to charge petitioner with 

the knowledge of and the duty to conform to the state code of professional 

responsibility. The uniform first step for admission to any federal court is 

admission. to a state court. The federal court is entitled to rely on .the 

attorney's knowledge of the state code of professional conduct applicable in 

that state court; the provision that suspension in any other couri of record 

creates a basis for a show cause hearing indicates that Rule 46 anticipates 

continued compliance with the state code of conduct. 

'734 F. 2d, at 336-337. This duty is almost universally recognized in 

American jurisdictions. See, e.g., Disciplinary Rule 1-102(A)(5), North 

Dakota Code of Professional Responsibility; Rule 8.4(d), American Bar 

Association; Model Rules of Professional Conduct (1983); Disciplinary Rule 

l-102(A)(5), American Bar Association, Model Code of Professional Responsibility (1980). · 
646 OCTOBER TERM, 1984 

""' Opinion of the Court 472 u. s. 

~ 

lnd an unspecified "refusal to show continuing respect for the 

· ;:rlourt" demonstrated that petitioner was«not presently p.t to 

practice law in the federal courts." 734 F. 2d, at 337. Its 

holding was predicated on a specific finding that petitioner's 

"disrespectful· statements [in his letter of October 6, 1983] 

as to this court's administration of the c.JA [constituted] 

contumacious conduct." Ibid. · 

We must examine the record in light of Rule 46 to determine whether the Court of Appeals' action is supported by 

the evidence. In the letter, petitioner declined to submit 

further documentation in support of his fee request, refused 

to accept further assignments under the Criminal Justice 

Act, and criticized the administration of the Act. Petitioner's refusal to submit further documentation in support of his 

fee request could afford a basis for declining to award. a fee; 

. however, the submission of adequate documentation was only 

a prerequisite to the collection of his fee, not an affirmative 

obligation required by his duties to a client or the court. 

Nor, as the Court of Appeals ultimately concluded, was petitioner legally obligated under the terms of the local plan to 

accept Criminal Justice Act cases. · 

· We do not consider a lawyer's criticism of the administration of the Act or criticism of inequities in assignments under 

the Act as cause for discipline or suspension. The letter was 

· addressed to a court employee charged with administrative 

responsibilities, and concerned a practical matter in the 

administration of the Act. The Court of Appeals acknowledged that petitioner brought to light concerns about the administration of the plan that had "merit," 734 F. 2d, at 339, 

and the court instituted a study of.the administration of the 

Criminal Justice Act as a result of petitioner's complaint. 

Officers of the court may appropriately express criticism on . 

such matters. · · 

The record indicates the Court of Appeals was concerned . 

about the tone of the letter; petitioner concedes that the tone 

of his .Jetter was "harsh," and, indeed it can be read as.ill634 

IN RE SNYDER 

Opinion of the Court 

647 

mannered. Ali" persons involved in the judicial processjudges, litigants, witnesses, and court officers-owe a duty''of 

courtesy to all other participants. The necessity for civility 

in the inherently contentious setting of the adversary process 

suggests that members of the bar cast criticisms of the system in a professional and civil tone. However, even assuming that the letter exhibited an unlawyerlike rudeness, a 

single incident of rudeness or lack of professional courtesyin this context-does not support a finding of contemptuous 

or contumacious conduct, or a finding that a lawyer is "not 

presently.fit to practice law in the federal courts." Nor does 

it rise to the level of. "conduct unbecoming a member of the 

bar" warranting suspension from practice. 

Accordingly, the judgment of the Court of Appeals is 

Reversed. 

JUSTICE BLACKMUN took no part in the decision of this 

case 

AppendixV 

60 Alb. L. Rev. 303, Albany Law Review, 1996, 

Enforcing Professional Norms For Federal Litigation Conduct: 

Achieving Reciprocal Cooperation, Jeffrey A. Parness [ not reprinted here] 

Page 273 

Page275 

Appendix YI 

Examples of Uniform Federal Rules of Attorney Conduct and Possible 

Revisions to Fed. R. Civ. P. 83. 

NOTE 

The attached are for example only, and thus have not been reviewed by either the 

Advisory Committee on Civil Rules or the Style Subcommittee. The "Notes" are for the 

Standing Committee's assistance, and are not intended to be "Committee Notes." 

FEDERAL RULES OF CIVIL PROCEDURE 

(Addition of a new Fed. R. Civ. P. 83(c)) 

RULE 83: RULES BY DISTRICT COURTS 

Page277 

(c) ATTORNEY CONDUCT. In addition to rules adopted under 28 U.S.C. §§ 2072 

and 2075, the rules governing attorney conduct in the federal district courts are the Federal 

Rules of Attorney Conduct. 

NOTE 

The new part (c) of this rule promotes uniformity in the standards of conduct for all 

attorneys admitted to practice before federal district courts. In the past, the federal district 

courts relied upon many different local rules to prescribe standards of attorney conduct. 

See, Report on Local Rules Regulating Attorney Conduct in the Federal Courts, 1-3 (July 

5, 1995) (Appendices I and II charted the many different of attorney conduct rules in the 94 

districts). These local rules took many forms. Some were ambiguously drafted. Others 

adopted conflicting standards of conduct. Still others adopted standards so vague they may 

have violated constitutional due process principles. See Report, supra, at 11-23, Appendix 

IV (Appendix IV contains Professor Linda Mullinex's article entitled, Multiforum Federal 

Practice: Ethics and Erie, in 9 Geo. J. Legal Ethics 89 (1995)); Eli J. Richardson, 

Demystifying the Federal Law of Attorney Ethics, 29 Geo. L. Rev. 137, 151-58 (1994). 

Finally, some districts failed to incorporate any standards of conduct in their local rules, 

leaving attorneys to guess the applicable standards. See Report, supra, at 8-11; 

Richardson, supra, at 152. This rule, applicable in all districts, seeks to eliminate the 

confusion. See Study of Recent Federal Cases ( 1990-1995) Involving Rules of Attorney 

Conduct, Appendix IV (Dec. 1, 1995) (containing: Bruce A. Green, Whose Rules of 

Professional Conduct Should Govern Lawyers in Federal Court and How Should the 

Rules be Created, 64 Geo. Wash. L. Rev. (1996)); Roger C. Cramton, Memorandum to 

Participants of the Special Study Conference, 3 (Jan. 8, 1996). · 

Vl-2-
Page 278 

FEDERAL RULES OF ATTORNEY CONDUCT 

RULE 1. GENERAL RULE 

(a) ST AND ARDS FOR A TIORNEY CONDUCT. Except as provided by specific 

rule adopted pursuant to 28 U.S.C. §§ 2072 and 2075 or by specific rule of the Federal 

Rules of Attorney Conduct, the standards for attorney conduct are as follows: 

(1) Proceedings Before District Court For conduct in connection with a 

proceeding in a district court before which an attorney has been admitted to practice, 

the rules to be applied must be the standards of attorney conduct currently adopted 

by the highest court of the state in which the district court sits, and 

(2) All Other Acts or Omissions by Attorney. For any other act or omission by an 

attorney admitted to practice before a district court, the standards for attorney 

conduct are: 

(i) if the attorney is licensed to practice only in one state, the rules of that 

state as currently adopted by its highest court, or 

(ii) if the attorney is licensed to practice in more than one state, the rules of 

the state in which the attorney principally practices as currently adopted by 

its highest court; provided, however, that if particular conduct has its 

predominant effect in another state in which the attorney is licensed to· 

practice, then the rules of that state as currently adopted by its highest court 

(3) Acts or omissions by an attorney admitted to practice before a district court of 

the United States, individually or in concert with any other person or persons, 

which violate these rules constitute misconduct and are grounds for discipline, 

whether or not the act or omission occurred in the course of an attorney-client 

relationship. 

(b) SANCTIONS. For misconduct defined in the Federal Rules of Attorney Conduct, 

for good cause shown, and after notice and opportunity to be heard, any attorney admitted 

to practice before a district court may be disbarred, suspended, reprimanded or subjected to 

such other disciplinary action as the district court deems appropriate. An attorney may also 

be subject to the disciplinary authority of the state or states where the attorney is admitted to 

practice for the same misconduct 

NOIB 

This rule is based on Model Local Rule IV of the Federal Rules of Disciplinary 

Enforcement as recommended by the Committee on Court Administration and Case 

Management in 1978 and ABA Model Rule of Professional Conduct 8.5 governing choice 

of law for disciplinary authority. See Report on Local Rules Regulating Attorney Conduct 

in the Federal Courts, Appendix V (July 5, 1995) (original version of Rule IV of the 

Federal Rules of Disciplinary Enforcement). 

Vl-3-
Page 279 

RULE 2. CONFIDENTIALITY OF INFORMATION 

(a) A lawyer shall not reveal information relating to representation of a client unless the 

client consents after consultation, except for disclosures that are impliedly authorized in 

order to carry out the representation, and except as stated in paragraph (b ). 

(b) A lawyer may reveal, and to the extent required by Federal Rules of Attorney 

Conduct 7 and 9(b) must reveal, such information to the extent the lawyer reasonably 

believes necessary: 

(1) to prevent the client from committing a criminal or fraudulent act that the lawyer 

believes is likely to result in death or substantial bodily harm, or in substantial 

injury to the financial interests or property of another: or 

(2) to establish a claim or defense on behalf of the lawyer in a controversy between 

the lawyer and the client, to establish a defense to a criminal charge or civil claim 

against the lawyer based upon conduct in which the client was involved, or to 

respond to allegations in any proceeding concerning the lawyer's representation of 

the client 

N01E 

This rule adopts ABA Model Rule Qf Professional Conduct 1.6 in its entirety with 

one significant exception. The rule modifies Rule 1.6 to permit disclosures of confidential 

information in order to prevent a fraudulent act which would result in substantial injury to 

the financial interests or property of another. The rule was modified to reflect prevailing 

state views which permit this type of disclosure. Thirty-six states permit disclosure under 

these circumstances, and five states mandate disclosure in these circumstances. By 

permitting disclosure, the federal rule comports with or avoids conflict with forty-one 

jurisdictions. See Roger C. Cramton, Memorandum to Participants of the, Special Study 

Conference, 2 (Jan. 8, 1996). Finally, the rule provides a reference to Federal Rules of 

Attorney Conduct 7 and 9 which are based on the ABA Model Rules of Professional 

Conduct 3.3 and 4.1 respectively. This reference emphasizes thatFederal Rule of Attorney 

Conduct 2(b) is not the only provision of these rules which deals with disclosure of 

information and that in some circumstances disclosure of such information may be required 

and not merely permitted. 

RULE 3. CONFLICT OF INTEREST: GENERAL RULE 

(a) A lawyer shall not represent a client if the representation of that client will be 

directly adverse to another client, unless: 

(1) the lawyer reasonably believes the representation will not adversely affect the 

relationship with the other client; and 

(2) each client consents after consultation. 

(b) A lawyer shall not represent a client if the representation of that client may be 

materially limited by the lawyer's responsibilities to another client or to a third person, or 

by the lawyer's own interests, unless: 

VI-4-
Page280 

(1) the lawyer reasonably believes the representation will not be adversely affected; 

and 

(2) the client consents after consultation. When representation of multiple clients in 

a single matter is undertaken, the consultation shall include explanation of the 

implications of the common representation and the advantages and risks involved . 

. NOTE 

This rule adopts ABA Model Rule of Professional Conduct 1.7 in its entirety. Over 

the last five years, the largest number of federal disputes involving attorney conduct 

concerned conflict of interest rules. ~ Daniel R. Coquillette, Study of Recent Federal 

Cases ( 1990-95) Involving Rules of Attorney Conduct, 3 (Dec. 1, 1995) (forty-six percent 

of reported federal disputes involved conflict of interest rules). 

RULE 4. CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS 

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire 

an ownership, possessory, security or other pecuniary interest adverse to a client unless: 

(1) the transaction and terms on which the lawyer acquires the interest are fair and 

reasonable to the client and are fully disclosed and transmitted in writing to the 

client in a manner which can be reasonably understood by the client; 

(2) the client is given reasonable opportunity to seek the advice of independent 

counsel in the transaction; and 

(3) the client consents in writing thereto. 

(b) A lawyer shall not use information relating to representation of a client to the 

disadvantage of the client unless the client consents after consultation, except as permitted 

or required by Federal Rules of Attorney Conduct 2 or 7. 

(c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the 

lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a 

testamentary gift, except where the client is related to the donee. 

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or 

negotiate an agreement giving the lawyer literary or media rights to a portrayal or account 

· based in substantial part on information relating to the representation. 

(e) A lawyer shall not provide financial assistance to a client in connection with pending 

or contemplated litigation, except that: 

(1) a lawyer may advance court costs and expenses of litigation, the repayment of 

which may be contingent on the outcome of the matter; and 

(2) a lawyer representing an indigent client may pay court costs and expenses of 

litigation on behalf of the client. 

VI-5-
Page 281 

(f) A lawyer shall not accept compensation for representing a client from one other than 

the client unless: 

(l) the client consents after consultation; 

(2) there is no interference with the lawyer's independence of professional 

judgment or with the client-lawyer relationship; and 

(3) information relating to the representation of a client is protected as required by 

Federal Rule of Attorney Conduct 2. 

(g) A lawyer who represents two or more clients shall not participate in making aggregate 

settlement of claims of or against the clients, or in a criminal case an aggregated agreement 

as to guilty or nolo contendere pleas, unless each client consents after consultation, 

including disclosure of the existence and nature of all the claims or pleas involved and of 

the participation of each person in the settlement. 

(h) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a 

client for malpractice unless permitted by law and the client is independently represented in 

making the agreement, or settle a claim for such liability with an unrepresented client or 

former client without first advising that person in writing that independent representation is 

appropriate in connection therewith. 

(i) A lawyer related to another lawyer as parent, child, sibling or spouse shall not 

represent a client in a representation directly adverse to a person who the lawyer knows is 

represented by the other lawyer except upon the consent by the client after consultation 

regarding the relationship. 

G) A lawyer shall not acquire a proprietary interest in the cause of action or subject 

matter of litigation the lawyer is conducting for client, except that the lawyer may: 

(l) acquire a lien granted by law to secure the lawyer's fee or expenses; and 

(2) contract with a client for a reasonable contingent fee in a civil case. 

NOTE 

This rule adopts ABA Model Rule of Professional Conduct 1.8 in its entirety except 

for the cross references to these rules. Again, over the last five years, the largest category 

of federal disputes involving attorney conduct centered on conflict of interest rules. See 

Daniel R. Coquillette, Study of Recent Federal Cases ( 1990-95) Involving Rules of 

Attorney Conduct, 3 (Dec. 1, 1995) (forty-six percent of reported federal disputes involved 

conflict of interest rules). DR 4-10l(B)(2) and (3), DR 5-103, DR 5-104, DR 5-106, DR 

5-107(A) and (B), DR 5-108 and DR 6-102 are the corresponding provisions of the ABA 

Code of Professional Responsibility. 

RULE 5. CONFLICT OF INTEREST: FORMER CLIENT 

(a) A lawyer who has formerly represented a client in a matter shall not thereafter 

represent another person in the same or a substantially related matter in which that person's 

VI-6-
Page282 

interests are materially adverse to the iriterests of the former client unless the former client 

consents after consnltation. 

(b) A lawyer shall not knowingly represent a person in the same or a substantially related 

matter in which a firm with which the lawyer formerly was associated had previously 

represented a client, 

(l) whose interests are materially adverse to that person; and 

(2) about whom the lawyer had acquired information protected by Federal Rnles of 

Attorney Conduct2 and 5(c) that is material to the matter; 

unless the former client consents after consultation. 

( c) A lawyer who has formerly represented a client in a matter or whose present or former 

firm has formerly represented a client in a matter shall not thereafter: 

(l) use information relating to the representation to the disadvantage of the former 

client except as Federal Rnle of Attorney Conduct 2 and 7 would pennit or require 

with respect to a client, or when the information has become generally known; or 

(2) reveal information relating to the representation except as Federal Rule of 

Attorney Conduct 2 or 7 wonld pennit or require with respect to a client. 

N01E 

Tiris rule adopts ABA Model Rule of Professional Conduct 1.9 in its entirety except 

for the cross references to these rnles. DR 4-lOl(B) and (C) and DR 5-105(C) are the 

corresponding provisions of the ARA Code .Qf Professional Responsibility. 

RULE 6. IMPUTED DISQUALIFICATION: GENERAL RULE 

(a) While lawyers are associated in a firm, none of them shall knowingly represent a 

client when any one of them practicing alone would be prohibited from doing so by Federal 

Rules of Attorney Conduct 4, 5(c) or 6. 

(b) When a lawyer has terminated an association with a firm, the finn is not prohibited 

from thereafter representing a person with interests materially adverse to those of a client 

represented by the formerly associated lawyer, and not currently represented by the firm, 

unless: 

(l) the matter is the same or substantially related to that in which the formerly 

associated lawyer represented the client; and 

(2) any lawyer remaining in the finn has information protected by Federal Rules of 

Attorney Conduct 2 and 5(c) that is material to the matter. 

( c) A disqualification prescribed by this rule may be waived by the affected client under 

the conditions stated in Federal Rnle of Attorney Conduct 3. 

VI-7-
Page 283 

NOTE 

This rule adopts ABA Model Rule of Professional Conduct 1.10 almost in its entirety 

except for cross references to these rules. The rule does not include a federal rule similar to 

ABA Model Rule 2.2, dealing with the lawyer as an intermediary. No recent federal cases 

have involved ABA Model Rule 2.2, and the matter should be left to state rules. See Daniel 

R. Coquillette, Study of Recent Federal Cases ( 1990-95) Involving Rules of Attorney 

Conduct, 3 (Dec. 1, 1995) (no reported federal disputes involve Model Rule 2.2). DR 5-

105(0) is the corresponding provision of the ABA Code of Professional Responsibility. 

RULE 7. CANDOR TOWARD THE TRIBUNAL 

(a) A lawyer shall not knowingly: 

(1) make a false statement of material fact or law to a tribunal; 

(2) fail to disclose a material fact to a tribunal when disclosure is 

necessary to avoid assisting a criminal or fraudulent act by the client; 

(3) fail to disclose to the tribunal legal authority in the controlling 

jurisdiction known to the lawyer to be directly adverse to the position of 

the client and not disclosed by opposing counsel; or 

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered 

material evidence and comes to know of its falsity; the lawyer shall take reasonable 

remedial measures. 

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and 

apply even if compliance requires disclosure of information otherwise protected by Federal 

Rule of Attorney Conduct 2. 

(c) A lawyer may refuse to offer evidence that, the lawyer reasonably believes is false. 

( d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts 

known to the lawyer which will enable the tribunal to make an informed decision, whether 

or not the facts are adverse. 

NOTE 

This rule adopts ABA Model Rule of Professional Conduct 3.3 in its entirety except 

for a cross reference to these rules. To preserve the integrity of the court proceedings, 

candor toward the tribunal is a matter of significant federal interest, and as such, requires a - · 

single uniform standard applicable in all federal courts. See Roger C. Cramton, 

Me,rwrandum to Participants of the Special Study Conference, 2-3 (Jan. 8, 1996). DR 7-

102 and DR 7-106(B) are the corresponding provisions of the ABA Code of Professional 

Responsibility. 

VI-8-
Page 284 

RULE 8. LAWYER AS WITNESS 

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a 

necessary witness except where: 

(1) the testimony relates to an uncontested issne; 

(2) the testimony relates to the nature and value of legal services rendered in the 

case; or 

(3) disqualification of the lawyer would work a substantial hardship on the client. 

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm 

is likely to be called as a witness unless precluded from so doing by Federal Rules of 

Attorney Conduct 3 or 5. 

NOTE 

This rule adopts ABA Model Rule of Professional Conduct 3.7 in its entirety, 

except for a cross reference to these rules. Over the last five years, ten percent of reported 

federal disputes involve lawyer as witness rules. See Daniel R. Coquillette, Study of 

Recent Federal Cases (1990-95)/nvolving Rules of Attorney Conduct, 3 (Dec. 1, 1995). 

Thus, a federal lawyer as witness rule is needed to create uniform standards of conduct for 

attorneys practicing in the federal courts. The corresponding provisions of the ABA Code 

.Qf Professional Responsibility are DR 5-101 (B) and DR 5-102. 

RULE 9. TRUTHFULNESS IN STATEMENTS TO OTHERS 

In the course of representing a client a lawyer shall not knowingly: 

(a) make a false statement of material fact or law to a third person; or 

(b) fail to disclose a material fact to a third person when disclosure is 

necessary to avoid assisting in a criminal or fraudulent act by a client, unless disclosure is 

prohibited by Federal Rule of Attorney Conduct 2. 

NOTE 

This rule adopts ABA Model Rule of Professional Conduct 4.1 in its entirety except 

for a cross reference to these rules. The corresponding provision of the ABA Model Code 

of Professional Responsibility is DR 7-102. 

VI-9-
Page285 

RULE 10. COMMUNICATIONS WITH PERSONS REPRESENTED BY 

COUNSEL 

In representing a client, a lawyer shall not communicate about the subject of the 

representation with a person the lawyer knows to be represented by another lawyer in the 

matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do 

so. 

NOTE 

This rule adopts ABA Model Rule of Professional Conduct 4.2 in its entirety. In 

fact, the final rule is likely to reflect an agreement between the U.S. Department of Justice 

and the Conference of Chief Justices, and be somewhat different from ABA Model Rule 

4.2. Over the last five years, twelve percent of reported federal cases involve rules 

governing communications with represented persons. See Daniel R. Coquillette, Study of 

Recent Federal Cases (1990-95) Involving Rules of Attorney Conduct, 3 (Dec. 1, 1995). 

Thus, a federal rule is needed to create uniform standards of conduct for attorneys 

practicing in the federal courts. The corresponding provision of the ABA Code of 

Professional Responsibility is DR 7-104. 

VI-10-

Appendix .Yil 

"Chart ill" for the 

Report on Local Rules & Regulations Attorney Conduct jn the 

Federal Courts (July 5, 1995) 

Page287 

~"-;. . ..,,,_, 

Cir, REFERS TO STATE RULES 

DC The Code of Prof. Responsibility adopted by 

the District of Columbia Court of Appeals, 

App. V, as amended fom time to time by that Ct., 

Ruic I except as othc~isc provided by specific rule 

of this Cl 

!st Code of Prof. Responsibility; that code 

adopted by the highest ct of the state, or 

Ruic 4(b) commonwealth, as amended from time to 

time by that ct., except as otherwise provided 

by specific Rule of this Ct after 

consideratlon of comments by rep's of bar 

associations within the state or 

commonwealth. 

2nd 

Rule 

46(h)(2) 

3rd 

App. D 

CHART TIIREE 

RULES OF PROFESSIONAL CONDUCT IN TIIE FEDERAL CIRCUIT COURTS 

May 24, 1995 

REFERS TO A MODEL RULE 

ABA Model Rules ABA Modtl Code Other 

The ct may refer to the 

Cominittee any accusation 

or evidence or misconduct 

by way of vlolallon of the 

dlsolplinAry rules under 

the Code of Professional 

Responsibility 

No Local Rule 

1 

Local Rule: Refen Neither to 

State Rules nor an ABA 

Mod,I 

Adopted the Rules of 

Discplinary Enforcement; Ruic 

2 states that the ct must look to 

FRAP, the rules and internal 

operating procedures of the Ct., 

or other instruction of the ct.. 

or any other conduct 

unbecoming a member of the 

court 

'ti 

~ Iv 

00 

'O 
i 

Iv 

REFERS TO A MODEL RULE. .:g 

Local Rule: Rden Ncltbt:r to 

Cir. REFERS TO STATE RULES No Loul Rule State Rultt nor aa ARA 

ASA Modd RulCI ABA Model Code Other Model 

' 

4th Internal Operating 

Procedure Rule 46.6 

(a)(J): Rules of Pro[ 

Conduct or Resp. in cffec 

in the state or other 

jurisdiction in which the 

atty maintains his or her 

principal office, the 

FRAP. the local rules and 

internal operating 

procedures of this Ct, or 

orders or other 

instructions of this Ct 

Sth No Local Ruic: •jt i1 

longstanding court 

practice to look to and 

follow the ethical rules 

I~ 

!!I 

adopled by the highest 

court in the state of the 

atty's domicile, while 

always being mindful of 

the ABA Model Rules" 

{cleric's office) I 

6th The Cl may Impose disclpllne on The ct may Impose 

any member who cnpgcs In discipline on any member 

Ruic conduct violatins lhe Canons of who engages In conduct 

32(b) Ethics or lhe Model Rules of vlolatins lhe Canons of 

Professional Conduct Ethics or lhe Model Rules 

of Professional Conduct 

7th Standards of Prof. Conduct 

within the 7th JudlclaJ Circuit 

App. Ill 
REFERS TO A MODEL RULE 

Cir. REFERS TO STATE RULES 

ADA Modd Rules ADA Model Code 

8th 

9th 

10th Cond':}Cl unbecoming a member of lhe bar 

which violates the federal laws, fedetal 

Add. Ill statutes, FRAP, rulcs of this ct, ordm or 

Sect. 2.3 other instructions of this ct, or the Code of 

Prof. Resp. adopted by the highest ct of any 

state in 'which the atty is admitted to practice 

I Ith FRAP, the ct's local rules, the AJ!A Model FRAP, the ct's local rules, the ABJ 

Rules of Pro£ .. Cond., and the rules of prof. Model Rules of Prof. Cond, 111d 

Add. VIII cond. adopted by the highest ct.of the the rules of prof. cond. adopted by 

Ruic IA statc(s) in which the atty Is admitted to the highest ct of the statc(s) In 

practice to the extent thalJhosc swe roles which the atty Is admitted to 

are 1101 inconsistent with the ABA Model pn,ctlcc to the extent that those 

Rules of Pror. Cond., in which case the state rules are not inconsistent with 

model rules shall govern. the ABA Model Rules of Pro£ 

Cond, in whlcll case the model 

rules shall govern. 

Other 

No Locll Ruic 

Internal Operating 

Procedure Ruic II D: 

aays may be disciplined 

for failure to comply with 

FRAP or 8th Cir. Rules. 

Clerk's office stated that 

issues arc sent to a panel 

of 8th Cir. judges; 

determinations made on 

an case•by--ca.se basis. 

No u,caJ Ruic: Ct cites k 

cases that exist (clerk's 

office) 

3 

Local Rule: Rercn Nehber to 

State Rules nor an ABA 

Model 

"C 

t 

N 

I.O 

-

Study of Recent Bankruptcy Cases (1990-1996) 

Involving Rules of Attorney Conduct 

Standing Committee Report 

June 19 - 20, 1997 

Page293 

Page295 

I. INTRODUCTION 

This Committee is currently considering two options for changing local rules 

governing attorney conduct in the federal district courts. "Option one" would be the 

adoption of a model local rule similar to Model Local Rule N of the Federal Rules of 

Disciplinary Enforcement, first proposed by the Committee on Court Administration and 

Case Management in 1978. (This would be recommended by the Judicial Conference to 

the fe(ieral courts for adoption by each court individually pursuant to 28 U.S.C. § 2071.) 

"Option two" is the adoption of nationwide uniform rules of attorney conduct pursuant to 

the Rules Enabling Act, 28 U.S.C. § 2072-2074. These uniform rules would apply to 

specific "core" areas where problems frequently arise in federal district courts, leaving all 

other areas to be governed by state standards. See Report on Local Rules Regulating 

Attorney Conduct, July 5, 1995; Study of Recent Federal Cases Involving Rules of 

Attorney Conduct. January 9, 1996; and Supplement to Study of Recent Federal Cases 

Involving Rules of Attorney Conduct (1990-1995), May 14, 1996. 

This memorandum examines how such changes in the federal district courts would 

effect the bankruptcy courts and what, if anything, should be done to improve rules of 

attorney conduct in the bankruptcy courts. At the request of the Committee, I have 

conducted three separate bankruptcy studies. The first study determined the number of 

reported bankruptcy cases focusing on local rules of attorney conduct and categorized each 

case by the specific rule involved. The second study traced the sources of local rules 

currently governing attorney conduct in each district of the bankruptcy court system. The 

final study researched reported cases and law reviews discussing the application of these 

rules in conjunction with applicable provisions of the Bankruptcy Code, especially § 327.1 

1 Some districts have already made efforts to improve the administration of attorney discipline in 

bankruptcy court For example, the Central District of California, by a general order, has established 

procedures by which bankruptcy judges can refer disciplinary problems to the Clerk of Court See General 

Order 96-05, U.S. Bankruptcy Court C.D. Ca. 

2 
Page296 

I am, once again, most deeply indebted to my talented and industrious research 

assistants, James J.G. Dimas and Thomas J. Murphy. Their hard work and intelligence 

has been vital to this entire series of reports, and they can take great pride in them on the 

eve of their graduation and entry to the "real world." In addition, I have benefited greatly 

from conversations with members of the Advisory Committee on Bankruptcy Rules. Of 

particular help has been the Chairman, the Honorable Adrian G. Duplantier, and Gerald K. 

Smith. Gerald Smith has attended every one of our task force meetings, and is a leading 

expert on attorney conduct rules in bankruptcy proceedings. The Committee's Reporter, 

Professor Alan N. Resnick, and Patricia S. Channon, Senior Attorney, Bankruptcy Judges 

Division, Administrative Office of the U.S. Courts, have also been of invaluable 

assistance. Particularly important was Patricia Channon's prior study of local rules in the 

bankruptcy courts, on which I have relied heavily. Any recommendations are, however, 

my own. In addition, any revisions to the Bankruptcy Rules, or any model local rules 

designed for bankruptcy proceedings, should be considered by the Bankruptcy Advisory 

Committee before action is taken. 

II. METHODOLOGY AND FINDINGS: 

A. "Study I": Reported Bankruptcy Cases Involving Rules of 

Attorney Conduct 0990-1996). See Appendices I, .!.I. 

The first study ("Bankruptcy Case Study") researched reported cases concerning 

. local rules of attorney conduct, and categorized each case by the specific rule involved. The 

purpose of this study was to determine which kinds of attorney conduct are most important. 

to the bankruptcy courts. This study was modeled after previous studies done for this 

Committee on local rules of attorney conduct in the federal district courts and federal courts 

of appeals. See Study of Recent Federal Cases (1990-1995) Involving Rules of Attorney 

Conduct, December 1, 1995; Supplement to Study of Recent Federal Cases (1990-1995) 

3 
Page297 

Involving Rules of Attorney Conduct. May 14, 1996. (Collectively, the "Federal Case 

Studies") 

As in the prior studies, an extensive computer search was designed, using the 

Descriptive Word Index of the Federal Practice Digest and the Westlaw data base. The 

search employed thirty five West Digest key numbers that closely tracked attorney conduct 

rules, as well as key words, phrases and numbers relating to these rules. A date restriction 

of January 1, 1990 to March 23, 1996 was used to allow for adequate comparison with the 

previous Federal Case Studies. The resulting search produced ninety-three reported 

bankruptcy cases involving local rules of attorney conduct 

Devoted research assistants then read each of the ninety-three cases. They prepared 

a painstaking written analysis of each case, including a summary of the underlying facts, 

the attorney conduct in question, the relevant standards of attorney conduct cited, the 

relevant key numbers assigned by West Publishing and the court's eventual decision. See 

Illustration I, Appendix I. At this point, a decision was to be made as to which "category" 

of rule was chiefly involved in each dispute. When the local standards were not based on 

the ABA Model Rules of Professional Conduct ("Model Rules"), the standards were 

"translated" into the applicable ABA Model Rule categories of Chart I. Appendix II using a 

system similar to the comparative table on page 128 of West's Selected Statutes. Rules and 

Standards of the Legal Profession (1995 ed.). Of course, this was a "rough fit," but it 

permits comparing "apples with apples" -- and a review of individual cases showed that the 

"rough fit" was more than adequate for the purposes of this study. 

The results of the Bankruptcy Study show that ABA Model Rules 1.7, 1.8, 1.9, 

1.10 and 1.11 or standards analogous to those rules were central to 53% of reported 

bankruptcy cases involving issues of attorney conduct (49 cases of the 93). The next 

largest category involved safekeeping of client property (ABA Model Rule 1.15 or its 

equivalents) accounting for 13%, or· 12 cases. The third largest category involved 

attorney's fees (equivalent to ABA Model Rule 1.5) containing 9%, or 8 cases. Combined, 

4 
Page298 

these three categories account for 7 5% of all reported bankruptcy cases. The next highest 

category involved "Lawyer as a Witness" (ABA Model Rl!k 3.7) with 4%, or only 4 cases. 

These results were compared with the prior studies of federal district courts and 

courts of appeals (the "Federal Case Studies"). The frequency of "Conflict of Interest" 

rules was consistent with the results of the prior studies, with 53% of the reported 

bankruptcy cases involving such conflicts, as opposed to 46% of the other reported federal 

cases. But the "Communications with Represented Parties" Rule (ABA Model Rule 4.2) 

and the "Lawyer as Witness" Rule (ABA Model Rule 3.7) were significantly less prevalent 

in the Bankruptcy Study than in the prior Federal Case Studies: 4% and 1 % respectively in 

the Bankruptcy Study, as opposed to 10% each in the Federal Case Studies. Conversely, 

cases involving "Attorney's Fees" (ABA Model Rule 1.5) constituted 9% of the bankruptcy 

cases, as opposed to 5% of the federal cases, and cases involving "Safekeeping of Client 

Property" (ABA Model Rule 1.15)2 involved 13% of the bankruptcy cases, as opposed to 

1 % of the federal cases. Not smprisingly, in light of the Federal Case Studies, most ABA 

Model Rules, or their equivalents, never feature in reported bankruptcy decisions. Almost 

all bankruptcy cases involving attorney conduct involve the small "core" group of rules 

2 AHA Mooi;! Rl!k 1.15, "Safekeeping Property," is far more important in bankruptcy courts than it is in 

other federal courts. The text is as follows: 

"(a) A lawyer shall hold property of clients or third persons that is in a lawyer's 

possession in connection with representation separate from the lawyer's own property. Funds 

shall be kept in a separate account maintained in the state where the lawyer's office is situated, or 

elsewhere with the consent of the client or third person. Other property shall be identified as such 

and appropriately safeguarded. Complete records of such account funds and other property shall be 

kept by the lawyer and shall be preserved for a period of [five years] after termination of .the 

representation. 

(b) Upon receiving funds or other property in which the client or third person has an 

interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or 

otherwise permitted by Jaw or by agreement with the client, a lawyer shall promptly deliver to the 

client or third person any funds or other property that the client or third person is entitled to receive 

and, upon request by the client or third person, shall promptly render a full accounting regarding 

such property. 

(c) When in the course of representation a lawyer is in possession of property in which both the 

lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an 

accounting and severance of their interest If a dispute arises concerning their respective interests, the 

portion in dispute shall be kept separate by the lawyer until the dispute is resolved." 

5 
Page299 

mentioned above. See Chart I, Appendix II: see also Study of Recent Federal Cases 

(1990-1995) Involving Rules of Attorney Conduct. December 1, 1995; Supplement to 

Study of Recent Federal Cases 0990-1995} Involving Rules of Attorney Conduct, May 

14, 1996. 

B. "Study IT': Sources of Local Rules Governing Attorney 

Conduct in Bankruptcy Courts. See Appendix rn. 

The second study ("Bankruptcy Rule Study") traced the sources of the local 

standards governing attorney conduct in each bankruptcy court The purpose was to 

determine how closely the bankruptcy courts follow the local rules of attorney conduct used 

by their corresponding district courts, which in turn would reveal how widespread the 

impact of changes in the federal district courts would be in the bankruptcy court system. 

This study was built upon the excellent research of Patricia S. Channon, "Professional 

Responsibility Rules in the Local Rules of Bankruptcy Courts," and a previous report done 

for this Committee on local rules regulating attorney conduct in the federal district courts 

and courts of appeals. See Report on Local Rules Regulating Attorney Conduct. July 5, 

1995. 

The results of this study reveal that most bankruptcy courts do not have their own 

independently developed set oflocal rules governing attorney conduct See klllUl Il, 

Appendix ill, Infra. Over seventy-three (73) percent of the ninety-four bankruptcy courts 

have either explicitly or implicitly adopted the local rules of attorney conduct of their 

respective federal district courts. Thirty-two (32) of the ninety-four (94) bankruptcy courts 

have no local rule at all governing attorney conduct. (These courts still require that the 

attorney be admitted to the local federal district court, which presumably implies that the 

attorney is governed by the federal district court's rules of attorney conduct, if any.3) 

3 Where the local rules of a bankruptcy court are silent on attorney conduc~ we have assumed that the rules 

of the federal district court apply. See e g. In re Glenn Elec. Sales Corp .. 99 B.R. 596, 598 (D. NJ. 1988) 

6 
Page 300 

Nineteen (19) of the bankruptcy courts explicitly adopt the standards of attorney conduct 

employed by the local federal district court. Eighteen (18) others adopt all the rules of the 

local federal district court generally. Thus, sixty -nine (69) of the bankruptcy courts 

explicitly or implicitly adopt district court standards. Additionally, three (3) bankruptcy 

courts use district court rules in combination with other standards, meaning that over 

seventy-seven (77) percent of the bankruptcy courts could automatically import changes 

made to district court attorney conduct rules. 

The remaining bankruptcy courts use other standards. Four ( 4) courts have local 

rules authorizing disciplinary enforcement, but fail to state the standard to be applied. Eight 

(8) bankruptcy courts refer to the rules of attorney conduct as promulgated by the state's 

highest court. Three (3) courts refer to a combination of state and ABA standards. Two 

(2) courts, the Bankruptcy Courts for the Eastern and Western Districts of Arkansas, adopt 

the Uniform Rules of Disciplinary Enforcement, first promulgated by the Committee on 

Court Administration and Case Management in 1978. One court (1), the Bankruptcy Court 

for the Southern District of Georgia, refers to the "current canons of professional ethics of 

the American Bar Association." 

As discussed in the prior reports, there is a growing "balkanization" of rules 

governing attorney conduct in the federal district courts. & Report on Local Rules 

Regulating Attorney Conduct. July 5, 1995. It appears that the bankruptcy court system 

has, for the most part, "imported" this problem by adopting the differing rules of attorney 

_conduct of their respective federal district courts. & Chart 11, Appendix Ill. See also 

Knopfler v, Schraiber. 103 B.R. 1001, 1003 (Bankr. N.D. Ill 1989) (holding that a federal 

court may consider both the Model Code and the Model Rules as standards governing 

attorney conduct); In re Consupak, Inc., 87 B.R. 529, 550 (Bankr. N.D. Ill. 1988) 

(holding that a federal court may consider both the Model Code and the Model Rules as 

(holding that when local rules of bankruptcy court are silent on issue of attorney conduct, federal district 

court's local rules apply). 

7 

- -----------------
Page 301 

standards governing attorney conduct); In re Glenn Elec. Sales Corp., 99 B.R. 596, 598 

(D.N.J. 1988) (disqualified law firm argues Model Code improperly invoked by District 

Court in Model Rules jurisdiction). 

C. "Study Ill": Application of Rules for Attorney Conduct in 

Conjunction with the Banlcruptcy Code. See Appendices N. V. 

The third and final study examined the application of local rules of attorney conduct 

in conjunction with the applicable provisions of the Bankruptcy Code, especially, § 327. 

See 11 U.S.C. § 327(a). The purpose was to consider what effects, if any, the options 

considered by this Committee would have on the application of Bankruptcy Code. 

The bankruptcy system is unique in American jurisprudence and presents unique 

ethical issues. This is particularly true in the area of conflict of interest regulation. As 

revealed by our prior studies, conflict of interest issues frequently arise in federal district 

courts, even in ordinary civil litigation where there are only two parties. See Study of 

Recent Federal Cases Involving Rules of Attorney Conduct. January 9, 1996, and the other 

studies cited at Section I. supra. The bankruptcy arena is far more complicated. There are 

rarely just two diametrically opposed adversaries, and frequently dozens, or even hundreds 

of parties with shifting alignments and differing interests that can change over time. See 

Peter E. Meltzer, "Whom do You Trust? Everything You Never Wanted to Know About 

Ethics, Conflicts and Privileges in the Bankruptcy Process," 97 Commercial !....L. 149, 150 

(1992), set out in Appendix V, infra. "[1]here are ordinarily a number of parties whose 

interests and alliances are constantly in a state of flux during the case." Id.,., 150. 

According to Professor Meltzer; 

"Bankruptcy involves shifting relationships: Today's enemy is tomorrow's friend 

and vice versa. Thus bankruptcy is rich in the potential for conflict, but it is also 

rich in the potential for cooperation. The parties need to work together even when 

they are at sword's points. This fact makes it extra difficult to identify just when a 

conflict exists." 

8 
I Page 302 

Id. at 151, quoting, Ayer, "How to Think About Bankruptcy Ethics," 60 Am. Bankr. L.J, 

355, 386-87 (1986).4 

§ 327 of the Bankruptcy Code is a statutory prescribed ethical rule governing 

conflict of interests for attorneys and other professional persons in the bankruptcy context. 

The statute permits the Bankruptcy Trustee to only employ professional persons (including 

attorneys) "that do not hold or represent an interest adverse to the estate" and are 

"disinterested persons." 11 U.S.C. § 327(a). The Bankruptcy Code does not define the 

words "hold or represent an interest adverse to the estate," but caselaw has defined this 

provision to include : 1. "the possessing or asserting of any economic interest that would 

tend to lessen the value of the bankruptcy estate" or 2. "possessing a predisposition under 

circumstances that render such a bias against the estate." ~e In re Roberts. 46 B.R. 815, 

827-29 (Bankr. D. Utah 1985), affd in part, rev'd in part, 15 B.R. 402 (D. Utah 1987) 

(en bane). 

The Bankruptcy Code does define "disinterested person." See 11 U.S.C. § 

101(14). The definition lists five categories of individuals who are not "disinterested." 

Examples of such individuals includes creditors, equity security holders, insiders and 

investment bankers for any outstanding security of the debtor. 11 U.S.C. § 101(14). The 

definition section also possesses a "catch-all" provision which some courts have interpreted 

to require an attorney to be free from "the slightest personal interest which might be 

4 For example, conflict of interest is inherent in the representation of a debtor in possession (DIP) during a 

chapter 11 reorganization. Unless a trustee has been appointed (not the usual situation), the DIP is the 

debtor itself. 11 U.S.C. § 1101. Section 1107 of the Bankruptcy Code imposes on the DIP most cif the 

duties of a trustee. Nowhere is there any reference to duties to the owner of the debtor. See Jay Lawrence 

Westbrook, "Fees and Inherent Conflicts of Interest," l Am. ful!J!g:. Inst. L. Rev. 287,290 (1993). Nor is 

the Bankruptcy Code clear on whether any duty is owed to creditors. Ill. Three cases from the Northern 

District of Texas, however, provide that the DIP owes a duty of loyalty to creditors. See Diamond Lumber, 

Inc, v, Unsecured Creditors' Comm, of Diamond Lumber. Inc,, 88 B.R. 773 (N.D. Tex. 1988); In re 

Kendavis Indus. Int'I, Inc .. 91 B.R. 742 (Bankr. N.D. Tex. 1988); In re Chapel Gate Apar11nents. Ltd., 64 

B.R. 569 (Bankr. N.D. Tex. 1986). This can create conflict of interest. While the DIP is not charged with 

a duly to the owners of the debtor, the DIP is very often the owner or managers employed by the owner. 

Charging the DIP with a duly that conflicts with its own interest passes this conflict along to the attorneys 

that represent the DIP. 

9 
Page 303 

reflected in their decisions." See In re Tinley Plaza Assocs, L,P,, 142 B.R. 272, 277-78 

(Bankr. N.D. Ill. 1992)5• 

Among the bankrnptcy courts, application of § 327 is far from uniform. ~ the 

extensive discussion in Marcia L. Goldstein et al., "Ethical Considerations for Bankrnptcy 

Professionals: Disinterestedness, Conflicts of Interest, and Retainers," C995 ALl-fillA 

397 (May 4, 1995); William Kohn, "Deciphering Conflicts of Interests in Bankrnptcy 

Representation," 98 Commercial k.1,_ 127 (1993). For example, there is a split of authority 

regarding the application of§ 327 for "potential" conflicts of interest. Some courts have 

held that a "potential conflict" is a contradiction in terms, finding that all conflicts are 

actual. See In re Kendavis, 91 B.R. at 753-54 ("The concept of potential conflicts of 

interest is based on a mistaken interpretation of the Bankrnptcy Code."); In re BH & P, 

IBQ., 103 B.R. 556, 563-64 (Bankr. N.D. Texas 1989) (holding that "[t]he terms 'actual' 

and 'potential' conflict merely describe different stages in the same relationship" because 

the prospect of future conflict could "exert a subtle influence" leading to a more active 

conflict) On the other hand, the Court of Appeals for the First Circuit has rejected a literal 

reading of§ 327(a) and held that there is no per se rule against employment of counsel 

where there is only a "potential" conflict See In re Martin, 817 F.2d 175, 180 (1st Cir. 

1987). The First Circuit pointed out a practical reason for this conclusion. "[T]o interpret 

the law in such an inelastic way would virtually eliminate any possibility of legal assistance 

for the debtor in possession, except under a cash-and-carry arrangement or on a pro bono 

basis." Id,_, at 180. See the extensive discussion in Peter E. Meltzer, "Whom do You 

Trust? Everything You Never Wanted to Know About Ethics, Conflicts and Privileges in 

5 The "catch-all'1 provision defines a "disinterested person" as one who: 

"does not have an interest materially adverse to the interest of the estate or of any class of 

creditors or equity security holders, by reason of any direct or indirect relationship to, 

connection with, or interest in, the debtor or an investment banker specified in 

subparagraph (B) or (C) of this paragraph." 

11 u.s.c. § 101(14)(E). 

10 
Page 304 

the Bankruptcy Process," 97 Commercial LL. 149 (1992), 154-158, set out as Appendix 

y_, infra. 

To make matters more complex, cases applying § 327 also frequently involve the 

conflict of interest rules of the ABA Code of Professional Responsibility ("Model Code") 

and the ABA Model Rules of Professional Conduct See e.g., SLC Ltd. v. Bradford 

Group West, Inc •. 999 F.2d 464, 467 (10th Cir. 1993) (Attorney who had represented 

debtor's general partner disqualified under the Utah version of the Rules of Professional 

Conduct.); In re F & C Intern .• Inc •. 159 B.R. 220, 222-23 (Bankr. S.D. Ohio 1993) 

(Court denied motion of expanded employment for special counsel of DIP under§ 327 of 

Bankruptcy Code and Canon 5 of the ABA Code). 

Courts have also applied these rules in a variety of ways, contributing to a wide 

ranging set of interpretations of§ 327. For example, some courts have imported the 

consent exceptions of the ABA Code. or ABA Model fu!le.s. into the Bankruptcy Code, and 

others have not. See e.g. In re Dynamark, Ltd, 137 B.R. 380, 381 (Bankr. S.D. Cal. 

1991) (after holding that attorneys did not hold or represent an adverse interest and were 

disinterested under § 327, the court stated that "although consent to representation by the 

parties is not necessarily sufficient by itself to overcome a lack of disinterestedness, this 

court takes judicial notice that [the client creditor] has submitted a written waiver of any 

conflict that exists or may exist"). But see In re Envirodyne Indus .. Inc. 150 B.R. 1008, 

1016 (Bankr. N.D. Ill. 1993) (holding§ 327 does not allow waiver of conflicts of 

interest); In re Diamond Mortg. Corp. of Illinois, 135 B.R. 78, 90 (Bankr. N.D. Ill. 1990) 

("certain conflicts that a client could waive after full disclosure outside of the bankruptcy 

context, such as simultaneous representation of the client and the client's creditors, are 

prohibited by the Bankruptcy Code itself from being waived.").6 Other courts have 

6 At least one author has argued that the adoption of the consent provisions of the ABA ~ Rules and 

the ABA ~ into § 327 may be beneficial. ~ Karen J. Brothers, "Disagreement among the Dislricts: 

Why Section 327(a) of the Bankruptcy Code Needs Help," 138 l.I. Ell.. L,. Rev. 1733, 1751 (1990). For 

example, conflicts often arise when the debtor's pre-bankruptcy attorney is retained by the trustee or DIP. It 

11 
Page 305 

imported the vague "appearance of impropriety" aspirations of Canon 9 of the Al2a Code 

in construing the requirements of§ 327. See e.g. In re 419 Co .. 133 B.R. 867, 869 

(Bankr. N.D. Ohio 1991) (holding that§ 327 covers "both actual and potential conflicts of 

interest in order to avoid even the appearance of impropriety."). This despite the intent of 

the drafters of the Al2A ~ that only the mandatory "Disciplinary Rules," not the 

Canons, should be enforced by sanction. See ABA Code, "Preamble and Preliminary 

Statement," 1. (1969). 

At least one law review article has suggested that the conflict of interest standards of 

the ABA Model Rules are consistent with§ 327, while the standards employed by the ABA 

Code are not. See William Kohn, "Deciphering Conflicts of Interest in Bankruptcy 

Representation," 98 Commercial L...I. 127, 139-140, set out as A1111endix VI, infra. 

According to Kohn, Congress rejected a ma:~ rule against "potential" conflicts of interest 

when it amended§ 327 to require an "actual conflict of interest." Id... at 140. He also 

argues that the ABA Code contains Canon 9 which bars even "the appearance of 

professional impropriety," while the ABA Model Rules do not contain such a per se 

prohibition and therefore are more consistent with Congressional intent. ~ id, at 139-40. 

Kohn would apparently favor a uniform rule covering conflict of interest in the bankruptcy 

courts based on the MA Model Rules. and would regard that as consistent with the 

Bankruptcy Code. 

Professor Jay Lawrence Westbrook also sees practical problems in a "per se" bar 

against "potential" conflicts of interest in bankruptcy cases. See Jay Lawrence Westbrook, 

"Paying the Piper: Rethinking Professional Compensation In Bankruptcy," 1 Am. Bankr. 

In.s.t. L. Rev. 287 (1993), 288-304. He argues that a "per se" rule against "potential" 

has been suggested that disqualifying the debtor's pre bankruptcy attorney is disadvantageous because of 

such counsel's likely knowledge of the situation and the debtor's confidence in such counsel. Ji!.. at 1751. 

One possible remedy would be to employ a standard similar to Rule 1.7, allowing the pre-bankruptcy 

attorney to continue representation upon disclosure and consent, with the additional requirement that parties 

in interest would also need to consent because the attorney would actually be representing the bankruptcy 

estate. Id. at 1756. 

12 
Page 306 

conflicts will leave debtors unrepresented or represented by inferior lawyers who are 

willing to face the risk of disqualification because they cannot find other work. .Id.. at 289. 

Professor Westbrook would most likely support a uniform rule for bankruptcy conflict of 

interest based on the ABA Model Rules because those model rules lack a "per se" 

prohibition against "potential" conflicts of interest 

There are many other disagreements and policy disputes concerning the proper 

relationship between the Bankruptcy Code provisions, particularly§ 327, and local rules 

governing attorney conduct in the bankruptcy courts. This is true whether the bankruptcy 

rules are based on the~~ the ~ Model Rl.!1§, or on entirely different 

standards. See the full discussion in Peter E. Meltzer, "Whom do You Trust? Everything 

You Never Wanted to Know About Ethics, Conflicts and Privileges in the Bankruptcy 

Process," 97 Commercial I,J. 149 (1992), set out in full at Appendix Y., fil!lIDl. Whatever 

position is taken on the individual disputes, one thing is certain. The conditions in 

bankruptcy practice are sufficiently different from that in other federal courts as to require 

separate analysis and, quite possibly, special rules of attorney conduct. 

III. CONCLUSIONS 

The first study ("Bankruptcy Cases") establishes that the rules of attorney conduct 

commonly litigated in the federal district courts are also among those most frequently 

invoked in the bankruptcy courts. Thus, rule reform for the federal district courts could 

also benefit the bankruptcy system. On the other hand, bankruptcy courts have a unique 

professional "culture" and a strong statutory environment. Rules appropriate for district 

courts cannot be automatically "carried over'' with assured success. Whether the ultimate 

decision is to proceed with a model local rule, or with uniform rule making pursuant to the 

Rules Enabling Act, 28 U.S.C. § 2072-2074, the Committee should carefully consider 

which rules should be applied to the bankruptcy court system. For example, ABA Model 

13 
Page 307 

Rule 1.15 "Safekeeping of Client Property" is far more important in bankruptcy courts than 

in district courts 7• 

The second study ("Bankruptcy Rules") indicates that seventy-seven percent of the 

bankruptcy courts have, explicitly or implicitly, adopted the local rules of attorney conduct 

used by their respective district courts. Thus, unless special care is taken, proposed 

changes in federal district court rules could technically carry over to most of the bankruptcy 

courts, even if there is no direct action on bankruptcy rules. To do this in an unreflective 

way would be a bad mistake. If new district court rules are inappropriate for the conditions 

of bankruptcy practice, they will be ignored in the bankruptcy courts. This would be of no 

real assistance to the bankruptcy bar. Specific, and different model local rules of attorney 

conduct may be required for bankruptcy courts. 

Finally, the third study ("Bankruptcy Code") demonstrates that simply changing the 

rules of attorney conduct in the bankruptcy courts will not automatically produce consistent 

standards, particularly as to conduct also governed by the Bankruptcy Code. Bankruptcy 

courts are highly "balkanized" in their interpretation of§ 327 of the Bankruptcy Code. 

Adopting carefully drafted uniform federal rules, however, could lead to more consistent 

application of statutory standards by curbing the casual use of the old ABA Canon 9 and 

the unpredictable disqualification of lawyers with "potential" conflicts of interest under § 

327 and under the vague "catch-all" provision of II U.S.C. § 101(14). See Section II (C), 

fil!lill!. A well crafted model local rule, specially designed for bankruptcy courts, could do 

the same. 

Initially, the Standing Committee set out to review local rules governing attorney 

conduct in the district courts. After the three extensive "Federal Cases" studies cited in 

Section I, fil11ill!, it became clear that standards for attorney conduct in district courts had 

become extremely "balkanized." But any attempt to restore uniform standards in the district 

7 For text of Rule 1.15, see footnote 2. supra. 

14 
Page 308 

courts is bound to effect bankruptcy practice, due to the numerous "carry over" local rules 

described at Section II (B), supra. Unlike courts of appeals, where there are relatively few 

cases and no apparent barriers to adopting the same kind of rules as district courts, the 

bankruptcy courts are subjected to a complex statutory system, which includes conflict of 

interest criteria, and other standards directly governing attorney conduct. ~ Section II 

(C), .fil!P_TI!.. See J!lID Study of Recent Cases 0990-1997) Involving Federal Rule for 

Appellate Procedure 46 (May 10, 1997). 

Discussion with members of the Bankruptcy Advisory Committee, particularly the 

Honorable Adrian G. Duplantier and Gerald K. Smith, and the Reporter, Alan N. Resnick, 

suggest that the Standing Committee should specifically request the Bankruptcy Advisory 

Committee for recommendations. In addition, the Federal Judicial Center should undertake 

an empirical study of bankruptcy courts similar to the very helpful "Study of Standards of 

Attorney Conduct and Disciplinary Procedures in Federal District Courts" that the Center is 

now completing at the Standing Committee's request. Final recommendations could take 

the form of a different model local rule for bankruptcy courts, or of a uniform federal rule 

that made special allowance for the conditions of bankruptcy practice. 

One practical first step would be for this Standing Committee to decide how to 

proceed with the district courts: whether to proceed with a model local rule ("option one"), 

or to proceed with some limited uniform rulemaking under the Enabling Act ("option two). 

That decision would give the Bankruptcy Advisory Committee the context necessary to 

make its own recommendations. No final action on new district court rules should be taken 

until specific provisions for bankruptcy practice are also ready. 

15 
Page 309 

APPENDIX I 

Illustration I - Standard Form for Located Cases (1990-1996) 

Page 311 

NAr.-IE OF CASE: ___________________ _ 

CITATION: ______________________ _ 

RELEVA.1.'iT KEY ND""MBERS: -------------'-------

FACTS/ATTORi""ffiY CONDUCT AT ISSUE:~----------

HOLDING: _____________________ _ 

RULES CITED: ____________________ _ 

Page 313 

APPENDIX II 

Chart I - Break Down of Recent Bankruptcy Cases (1990-1996) by ABA 

Model Rules of Professional Conduct 

Page 315 

TOTAL NUMBER OF CASES CLASSIFIED BASED ON MODEL RULES· 

BANKRUPTCY COURTS FROM JAN, 1 1990 THROUGH MAR 23 1996 

Ruk Subject matter .Total 

1.1 Competence 3 

1.2 Scope of Representation 3 

1.3 Diligence 0 

1.4 Communication 0 

1.5 Fees 8 

1.6 Confidentiality of Information 1 

1.7 Conflict of Interest: General 20 

1.8 Conflict of Int. Prohib. Trans. 8 

1.9 Conflict of Interest: Fmr. Client 13 

1.10 Imputed disqualification (Firm) 7 

1.11 Govt. to private employment 1 

TOTALS IN ABOVE FIVE CATEGORIES ¢ 49 

(CONFLICT OF INTEREST) 

1.12 Former Judge or Arbitrator 1 

1.13 Organization as Client 1 

1.14 Client Under a Disability 0 

1.15 Safekeeping Property 12 

1.16 Declining / Terminating Repr. 2 

1.17 Sale of Law Practice 0 

2.1 Advisor 0 

2.2 Intermediary 0 

2.3 Eva!. for use by 3rd Persons 0 

3.1 Meritorious Claims/Contentions 1 
Page 316 

Model role Subject matter Total 

3.2 Expediting Litigation 0 

3.3 Candor Toward the Tribunal 2 

3.4 Fairness to opposing party 1 

3.5 Impart. & Decorum of Tribunal 0 

3.6 Trial Publicity 0 

3.7 Lawyer as Witness 4 

3.8 Special respons. of Prosecutor 1 

3.9 Advocate / Non adjudicative 0 

4.1 Truth in Statements to Others 0 

4.2 Comm. w. Pers. Rep. Couns. 1 

4.3 Dealing w/ Unrep. Person· 0 

4.4 Respect for Rts. of 3rd Persons 0 

5.1 Resp. of Partner or· Supervisor 0 

5.2 Resp. of Subordinate Lawyer 0 

5.3 Resp. Nonlawyer Assist. 2 

5.4 Professional Independence 0 

5.5 Unauthorized Practice of Law 1 

5.6 Restr. on Rt. to Practice 0 

5.7 Resp. Reg. Law Rel. Practice 0 

6.1 Voluntary Pro Bono Publico 0 

6.2 Accepting Appointments 0 

6.3 Member in Legal Svces. Org. 0 

6.4 Law reform / Client Interests 0 

7.1 Comm. Cone. Lawyer's Svces. 0 

7.2 Advertising 0 
Page 317 

Mgdel rule Subject matter Total 

7.3 Dir. Contact w/ Prospective CL 0 

7.4 Comm. of Fields of Practice 0 

7.5 Firm Names & Letterheads 0 

8.1 Bar Admission & Disc. Matters 0 

8.2 Judicial & Legal Officials 0 

8.3 Reporting Prof. Misconduct 1 

8.4 Misconduct 0 

8.5 Disc. Auth.: Choice of Law 0 

Totals 93 

Page319 

APPENDIX III 

Chart II - Sources of Federal District Court and Bankruptcy Court Local 

Rules of Professional Conduct · 

Page 321 

SOURCES OF FEDERAL DISTRICT COURT & BANKRUPTCY COURT 

LOCAL RULES ON PROFESSIONAL CONDUCT' 

[DISTRICT I DISTRICT COURT' I BANKRUPTCY COURT3 

M.D.AL. ABA Rules and State rules (r) Adopted District Court rules generally4 

N.D.AL. ABA Rules and State rules (r) Adopted District Court rules generally 

S.D.AL. ABA Rules and State rules (r) ABARules and State rules (r) 

D.AK. State Rule Based on ABA Adopted District Court rules .generally 

Model Rules 

D.AZ. State Rule Based on ABA No local rule' 

Model Rules 

E.D.AR. Uniform Federal rules of Uaiform Federal Rules of Disciplinary Enforcement 

Disciplinary Enforcement 

W.D.AR. Uniform Federal rules of Uniform Federal Rules of Disciplinary Enforcement 

Disciplinary Enforcement 

1The text of these local rules may be located in Federal Local Court Rules, Lawyers 

Cooperative Publishing, 1995 and Bankruptcy Local Court Rules Service, Callaghan & Company 

1989. 

2Sources of district court rules drawn from memorandum from Daniel R Coquillette to 

the Committee on Rules of Practice and Procedure, Judicial Conference of the United States, 

dated Jan. 2, 1995, concerning Local Rules Regulating Attorney Conduct (attached). 

3Sources of bankruptcy court rules drawn from memorandum from Patricia S. Channon to 

Gerald K. Smith, dated Mar. 27, 1996, concerning Professional Responsibility Rules in the Local 

Rules of Bankruptcy Courts, and Bankruptcy Local Rules Service, Callaghan & Co., 1989. 

4Wliere a Bankruptcy Court is listed as having "Adopted District Court Rules Generally," 

it is not possible to determine from the local bankruptcy rules whether the district court rules 

contain provisions concerning attorney conduct and professional responsibility. ~ Channon 

Memo. 

5Wliere Bankruptcy Court is listed as having "no local rule," the court still requires that an 

attorney must be admitted to the District Court. This usually means being a member in good 

standing of the state bar. Presumably, state rules apply. ~ Channon memo, p. 1. 

I 
I. 

Page 322 

!DISTRICT I DISTRICT COURT ! BANKRUPTCY COURT 

C.D.CA. CA Rules of Prof. Conduct Adopted District Court Rules6 

E.D.CA. Refers to ABA Code and CA Adopted District Court Rules 

Rules 

N.D.CA. CA Rules of Prof. Conduct Incorporated into District Court Rules 

S.D.CA. Refers to ABA Code and CA Adopted District Court Rules generally 

Rules 

D.CO. State Rule Based on ABA No Local Rule 

Model Rules 

D.CT. State Rule Based on ABA No Local Rule 

Model Rules 

D.DE. Model Federal Rules of Adopted District Court Rules generally 

Disciplinary Enforcement 

D.D.C. State Rule Based on ABA Adopted District Court Rules generally 

Model Rules 

M.D.FL. State Rule Based on ABA ABA Rules and State Rules 

Model Rules 

N.D.FL. State Rule Based on ABA Adopted District Court Rules 

Model Rules 

S.D.FL. State Rule Based on ABA Atty. must read and remain familiar w/ Fla Bar's Rules of Prof

Model Rules Conduct. No explicit statement on whether these rules apply o 

govern. 

M.D.GA. ABA rules and GA Rules (c) No Local Rule 

N.D.GA. State Rule Based on ABA Code Adopted District Court Rules 

S.D.GA. Old ABA Canons LBR S0S(d), "Current canons of prof. ethics ofthe ABA" 

D. Guam Refers to ABA Model Code and Adopted District Court Rules Generally 

Model Rules 

D.ffi. State Rule Based on ABA No Local Rule 

Model Rules 

6

Bankruptcy Courts listed as having "Adopted District Court rules" state they have 

adopted the district court's rules on attorney conduct, attorney discipline, professional 

responsibility, or a similar phrase. ~ Channon memo. 
l 

l 

l 

lo1STRICT I DISTRICT COURT 

D.ID. State Rule Based on ABA 

Model Rules 

C.D.IL. State Rule Based on ABA 

Model Rules 

N.D.IL. Unique Standing Order 

S.D.IL. State Rule Based on ABA 

Model Rules 

N.D.IN. State Rule Based on ABA 

Model Rules . 

S.D.IN. State Rule Based on ABA 

Model Rules 

N.D.IA. No Local Rule 

S.D.IA. No Local Rule 

D.KS. State Rule Based on ABA 

Model Rules 

E.D.KY. State Rule Based on ABA 

Model Rules 

W.D.KY. State Rule Based on ABA 

Model Rules 

E.D.LA. State Rule Based on ABA 

Model Rules 

M.D.LA. State Rule Based on ABA 

Model Rules 

W.D.LA. State Rule Based on ABA 

Model Rules 

.D.ME. State Rule Based on ABA Code 

D.MD. State Rule Based on ABA 

Model Rules 

D.MA. State Rule Based on ABA Code 

E.D.MI. State Rule Based on ABA 

Model Rules 

Page 323 

I BANKRUPTCY COURT I 

LBR 9010(g), Rules of Prof. Conduct adopted by S.Ct. of ID. 

No Local rule 

Adopted District Court Rules generally 

Adopted District Court Rules 

Adopted District Court Rules 

Adopted District Court Rules generally 

Modified standards 

Adopted District Court Rules generally 

Adopted District Court Rules 

No Local Rule 

LBR 3(b )(2)(E), Stds. of Prof. Conduct adopted by KY S.Ct. 

No Local Rule 

Rules of Professional Conduct of LA. State Bar Assoc. 

Adopted District Court Rules 

No Local Rule 

LBR 42(k). Counsel are "encouraged to be familiar" with the 

"Discovery Guidelines of the Maryland State Bar." 

No Local Rule 

Adopted District Court Rules Generally 
Page 324 

lo1sTR1cT I DISTRICT COURT I BANKRUPTCY COURT 

State Rule Based on ABA Local rule authorizing discipline of attorneys which does not 

W.D.MI. Model Rules state standard to be applied. 

D.MN. State Rule Based on ABA No Local Rule 

Model Rules 

N.D.MS. No Local Rule Adopted District Court Rules 

S.D.MS. No Local Rule Adopted District Court Rules 

E.D.MO. State Rule Based on ABA, No Local Rule 

Model Rules 

W.D;MO. No Local Rule Adopted District Court Rules 

D.MT. Refers to ABA Code · Adopted District Court Rules 

D.NE. State Rule Based.on ABA Code Adopted District Court Rules 

D.NV. State Rule Based on ABA No separate bkrtcy. court rules; only bkrtcy. specific rules in 

Model Rules Dist. Ct. Rules. 

D.N.H. State Rule Based on ABA No Local Rule 

Model Rules 

D.N.J. State Rule Based on ABA Adopted District Court Rules generally 

Model Rules 

D.N.M. State Rule Based on ABA No Local Rule 

Model Rules 

E.D.N.Y. State Rules and ABA Code No Local Rule 

N.D.N.Y. Refers to ABA Code No Local Rule 

S.D.N.Y. State Rules and ABA Code No Local Rule 

W.D.N.Y. State rule based on ABA Code Local rule which does not state standard to be applied 

E.D.N.C. State rule based on ABA Model No Local Rule 

Rules 

M.D.N.C. State rule based on ABA Model No Local Rule 

Rules 

W.D.N.C. State rule based on ABA Model No Local Rule 

I

. 

,i' 

Rules 
Page 325 

lnrsTRicT I DISTRICT COURT I BANKRUPTCY COURT I 

D.N.D. State rule based on ABA Model Adopted District Court Rules generally 

Rules 

D.N.M.I. Refers to ABA Model Rules No Local Rule 

N.D.OH. State Rule Based on ABA Code Adopted District Court Rules 

S.D.OH Model Federal Rules of LBR 4, Code of Prof. Resp. adopted by OHS.Ct. 

Disciplinary Enforcement 

E.D.OK. State Rule Based on ABA No Local Rule 

Model Rules 

N.D.OK. State rule based on ABA Model No Local Rule 

Rules 

W.D.OK. State Rule Based on ABA Adopted District Court Rules generally 

Model Rules 

D.OR. State Rule Based on ABA Code No Local Rule 

E.D.PA. State Rule Based on ABA Local rule which does not state standard to be applied 

Model Rules 

M.D.PA. State·Rule Based on ABA Local rule which does not state standard to be applied 

Model Rules . 

W.D.PA. State Rule Based on ABA Adopted District Court Rules 

Model Rules 

D.P.R. Refers to ABA Code Adopted District Court Rules 

D.R.I. State Rule Based on ABA Adopted District Court Rules generally 

Model Rules 

D.S.C. State Rule Based on ABA Dist. Ct. Rule 2.0,08., SC Code of Prof. Resp. 

Model Rules 

D.S.D. No Local Rule Adopts District Court rules generally 

E.D.TN. State Rule Based on ABA Code LBR2(c), Code of Prof. Conduct adopted by S.Ct. of TN. 

M.D.TN. Refers to ABA Code Adopts Dist. Ct. Rule and has local bankruptcy rule that asserts 

jurisdiction to enforce standards of conduct. 

W.D.TN. State Rule Based on ABA Code Refers to ABA Code and District Court rules as they relate to 

attorney conduct 

E.D.TX. State Rule Based on ABA No Local Rule 

Model Rules 
Page 326 

I DISTRICT I DISTRICT COURT I BANKRUPTCY COURT 

N.D.TX. State Rule Based on ABA Adopted District Court Rules 

Model Rules 

S.D.TX. State Rules and ABA Code Adopted District Court Rules 

W.D.TX. State Rule Based on ABA Adopted Dist. Ct. Rules and references "litigation standard" 

Model Rules 7 announced in local case and states that it applies 

D.UT. State Rule Based on ABA LBR 4, Code of Pro£ Resp. adopted by OHS. Ct. 

Model Rules 

D.VT. State Rule Based on ABA Code No Local Rule 

E.D.VA. State Rule Based on ABA Code LBR 105-(I), Canons of Pro£ Ethics of the ABA & the VA Stat, 

Bar 

W.D.VA. State rule based on ABA Code No Local Rule 

D.V.L . Refers to ABA Model Rules No Local Rule 

E.D.WA. State Rule Based on ABA No Local Rule 

Model Rules 

W.D.WA. State Rule Based on ABA Adopted District Court Rules generally 

Model Rules 

N.D.W.V. State Rule Based on ABA Adopted District Court Rules 

Model Rules 

S.D.W.V. State Rules and ABA Code No Local Rule 

E.D.WI. State Rule Based on ABA Adopted District Court Rules generally 

Model Rules 

W.D.WL No Local Rule No Local Rule 

D.WY. State Rule Based on ABA No Local Rule 

Model Rules 

7 ABA Code noted. 
1 

! Page 327 

APPENDIX IV 

. Chart III - Break Down of Recent Federal Cases (1990-96) by ABA Model 

Rules of Professional Conduct 

Page 329 

TOTAL NUMBER OF CASES CLASSIFIED BASED ON MODEL RULESFEDERAL DISTRICT AND APPEALS COURTS 

FROM JAN I. 1990 THROUGH MAR 23, 1996 

Rllk Subject ma~r ,Ciril Crimi!!al Total 

1.1 Competence 2 0 2 

1.2 Scope of Representation 4 3 7 

1.3 Diligence 1 3 4 

1.4 Communication 1 0 1 

1.5 Fees 24 1 25 

1.6 Confidentiality of Information 10 5 15 

1.7 Conflict of Interest: General 77 26 103 . 

1.8 Conflict of Int. Prohib. Trans. 9 1 10 

1.9 Conflict of Interest: Fmr. Client 81 5 86 

1.10 Imputed disqualification (Firm) 20 4 24 

1.11 Govt. to private employment 3 10 13 

TOTALS IN ABOVE FIVE CATEGORIES 191 46 237 

(CONFLICT OF INTEREST) 

1.12 Former Judge or Arbitrator 0 0 0 

L13 Organization as Client 6 0 6 

1.14 Client Under a Disability 0 0 0 

1.15 Safekeeping Prop~rty 3 1 4 

1.16 Declining / Terminating RepL 7 1 8 

1.17 Sale of Law Practice 0 0 0 

2.1 Advisor 0 0 0 

2.2 Intermediary 0 0 0 

2.3 Eval. for use by 3rd Persons 0 0 0 

3.1 Meritorious Claims/Contentions 9 3 12 

. 
Page 330 

Rule Suhject matter Civil Criminal Total 

7.2 Advertising 1 0 1 

7.3 Dir. Contact_ w/ Prospective Cl. 2 0 2 

7.4 Comm. of Fields of Practice 1 0 1 

7.5 Firm Names & Letterheads 0 0 0 

8.1 Bar Admission & Disc. Matters 0 0 0 

8.2 Judicial & Legal Officials 2 2 4 

8.3 Reporting Prof. Misconduct 1 0 1 

8.4 Misconduct 4 3 7 . 

8.5 Disc. Auth.: Choice of Law 6 1 7 

Totals 400 120 520 
APPENDIXV 

97 Com. L. J. 149, Commercial Law Journal, Summer, 1992, 

Whom Do You Trust? Everything You Never Wanted to Know About 

Ethics, Conflicts and Privileges in the Bankruptcy Process, 

Peter E. Meltzer [not reprinted here] 

Page 331 

APPENDIX VI 

98 Com. L. J. 127, Commercial Law Journal, Summer, 1993, 

Deciphering Conflicts of Interest in Bankruptcy Representation, 

William I. Kohn [not reprinted here] 

Page 333 

Page 335 

Standards of Attorney Conduct and Disciplinary Procedures 

A Study of the Federal District Courts 

Report to the Committee on Rules of Practice and Procedure 

Marie Leary 

Federal Judicial Center 

June 1997 

Page 337 

Summary 

The Judicial Conference Committee on Rules of Practice and Procedure is studying the 

effect of having multiple standards of professional conduct for attorneys practicing in the federal 

district courts. The Federal Judicial Center is assisting by reporting on the experiences of federal 

districts with local rules that govern attorney conduct, and procedures used by the courts to address 

alleged misconduct. Based on the published local rules of the federal district courts and the 

responses to questionnaires sent to each federal district in April 1997, we have made the following 

findings: · 

I. Local rules governing attorney conduct in the federal district courts: 

• Eighty-nine federal districts (95% of all districts) have a local rule informing attorneys 

practicing before the districts' courts which professional standards of conduct they are required 

to abide by. Five districts do not have such a local rule. 

• The local rules of 68 districts (76% of federal districts with attorney conduct rules) incorporate 

the relevant standards of the state in which the district is located. The local rules of eight 

dis\ricts (9% of federal districts with attorney conduct rules) adopt an ABA Model directly. The 

local rules of 12 districts (14% of federal districts with attorney conduct rules) adopt both the 

relevant state standards of the state in which the district is located and an ABA Model. One 

district adopts a unique standard of conduct that varies substantially from the ABA model rules 

and state standards. 

• Twenty-one districts have adopted a local rule regulating attorney conduct identical or nearly 

identical to Model Rule 4(B) of the Model Federal Rules of Disciplinary Enforcement. By 

comparing the important components of Model Rule 4(B) with those found in the local rules of 

the other 47 state-based districts that are not identical or similar in language to Model Rule 

4(B), we found that the rules of 35 districts (74%) contain language similar in meaning to two 

or more of the components of Rule 4(B). 

• Although the local rules differ as to the source of the standards adopted, the important 

components of Model Rule 4(B) are also found in a substantial number of districts with model 

rule-based and combination model rule and state-based local rules. Two important components 

are (1) whether the district also adopts any amendments to the standards adopted by the rule 

and (2) whether the district explicitly preserves the right to prescribe any rule or adopt any 

modification different than or in addition to the standards adopted. However, whereas these 

provisions are found in the majority of state-based local rules (60% of local rules that adopt 

relevant state standards), they are incorporated in only a small number of the other districts 

(25% of either districts with model based-rules or districts with combination state-based and 

model-based rules). · 

• Some local rules explicitly identify exceptions to its adopted standards either by providing that 

the standards cannot "conflict with federal law" or by explicitly identifying provisions of the 

adopted standards that are not incorporated. Some rules provide that no subsequent 

amendments to the adopted standards apply unless expressly adopted by the court. And some 

local rules have provisions addressing whether the district's local rule adopting a standard of 

conduct also adopts judicial or other agency interpretations of the standard. 

2 
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• Based upon an average response rate of75 districts, a total of 40 districts (53%) reported 

having experienced one or more of the following five problems: problems created by 

ambiguously drafted rules, federal courts incorporating standards of conduct not included in 

any rule, due process and vagueness problems, multiforum problems, and problems resulting 

from the promulgation by federal agencies of their own attorney conduct rules. However, 

when each of the problems are examined individually, a small minority of the districts reported 

their occurrence. Using the average response rate of 75 districts, 17% of all districts 

responding reported the occurrence of conflicts or confusion derived from ambiguous language 

in their local rule; 9% reported that attorneys practicing in their district were prevented from 

relying on the explicit language of their local rules because their court used external standards 

to interpret the districts; 8% reported experiencing complaints regarding lack of attorney due 

process caused, in part, by the vagueness of their attorney conduct rule; 9% reported having 

experiencing difficulties resulting from attorney conduct problems involving multiple venues; 

and only 9% of respondents reported that they had experienced problems due to conflicts 

between their local rules and rules of professional conduct adopted by a federal agency. 

• Based upon a response rate of 78 districts for each category, 17 districts (22%) reported 

problems with their rules in one or more of the following five areas: confidentiality, 

communication with represented parties, lawyers as witnesses, candor towards a tribunal, and 

conflict of interest. However, when these reported problems are viewed in the context of all 

districts responding to this inquiry (4% of all districts responding reported problems with 

confidentiality; 17 % of all districts reported problems with communication with represented 

parties; 4% with lawyers as witnesses; 8% with candor towards a tribunal, and 6% reporting 

problems with issues involving conflict of interest), with the exception of communication with 

represented parties to a limited extent, these specific ethical standards do not present a problem 

for most federal districts. 

• The majority of districts do not support having the same rules governing the professional 

conduct of attorneys in all federal district courts. Out of 79 districts that responded, 24 (30%) 

indicated that they would be in favor of a national rule; 53 respondents (67%) did not support a 

national rule, and two had no opinion. 

• The majority of districts not in favor of national uniformity do not support, as an alternative, 

having the same rules governing the professional conduct of attorneys with regard to the issues 

of confidentiality (73% opposed), communication with represented parties (71 % opposed), 

lawyers as witnesses (75% opposed), candor towards a tribunal (65% opposed), and conflict 

of interest (73% opposed). 

II. Attorney discipline in the federal district courts: 

• Eighty-eight federal districts (94% of all federal districts) have a local rule containing some .. type 

of procedures for the discipline of attorneys, and six do not have such a local rule. 

• Relying on information in the local rules and assuming that all attorney conduct matters are 

handled by each district according to the procedures in the rules, we can make only the 

following definitive statements: (1) districts providing the judicial officer with many options 

and wide discretion for choosing among them for addressing complaints of attorney 

misconduct are in the overwhelming majority; (2) districts handling attorney discipline matters 

exclusively within the district or exclusively referring the matters outside of the district with no 

provisions for disposing of the matter within the district are a minority. 

3 
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• To obtain a better sense of the actual practices followed in the districts, the respondents were 

asked to indicate the approaches to attorney conduct that were used by the district and the 

approach most frequently used by the district. Of the 73 districts responding, the procedure 

they reported as using most frequently (34 districts or 47% of all districts responding) was 

referring the matter to the group or agency charged with enforcing state ethical standards for 

whatever action that agency deems warranted. In order of decreasing popularity, 11 districts 

(15% of all districts responding) reported referring the matter to a panel or group of judges 

within the district; eight districts (11 %) refer the matter to a single judge within the district; 7 

districts ( 10%) appoint an attorney to investigate and present the matter to the federal district 

court; 6 districts (8%) refer the matter to a panel or committee of attorneys in the district for 

investigation and presentation to the federal district court; 6 districts (8%) refer the matter to the 

United States Attorney for investigation; 6 districts (8%) handle the matter another way (all 

reported disciplinary matters are handled within the district); and 4 districts (5%) appoint the 

group or agency charged with enforcing state ethical standards to investigate and present the 

matter to the federal district court. 

• Out of the approaches that the districts reported as using most frequently, 34 of these 

approaches (41 % of all approaches reported used most frequently) referred the disciplinary 

matter outside of the district court for investigation and final disposition; 39 of these 

approaches (47% of all approaches reported used most frequently) investigate and arrive at a 

final disposition of the complaint within the district court; and 17 of these approaches (20% of 

all approaches reported used most frequently) both send the complaint outside of the district 

court for investigation and within the district court for final disposition. From this comparison, 

we observed: (1) The approach slightly favored by the largest number (47% of all approaches 

reported as used most frequently) of all responding districts is to address the attorney . 

misconduct matter within the district court, both for investigation and final disposition; (2) The 

majority of all responding districts (61 % of all approaches reported as used most frequently) 

prefer to refer the investigation of attorney misconduct allegations outside of the district court; 

(3) The majority of all responding districts (67% of all approaches reported as used most 

frequently) favor handling the final disposition of the matter within the district court. 

• The number .of complaints _or allegations of attorney misconduct that occur within the district 

court are small. In calendar year 1996, the median for a range of zero to 32 complaints received 

by the districts was 7 .2, and the median for a range of zero to 32 complaints on which formal 

action was taken was 7. 

4 
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I. Introduction' 

The Judicial Conference Committee on Rules of Practice and Procedure is studying the 

effect of having multiple standards of professional conduct for attorneys practicing in the federal 

district courts. The Committee requested the Federal Judicial Center to assist by preparing a report 

on (1) the experiences of federal districts with local rules that govern attorney conduct, and (2) 

procedures used by the courts to address alleged misconduct. This report is based on the published 

local rules of the federal district courts and the responses to questionnaires sent to each federal 

district in April 1997. We sent each district two questionnaires. The first, addressed to the district 

clerk, asked about the current status of pertinent local rules, the history of the rules, and the 

frequency of attorney misconduct complaints. The second, addressed to the Chief Judge, or other 

judicial representative identified as familiar with the rules and issues, asked about the districts' 

experiences with the rules and procedures relating to attorney conduct and discipline. 

Section II describes the current status of local rules governing attorney conduct in the 

federal district courts. These rules are categorized according to the source of the standards the 

district has adopted. In addition, the language and key components of these rules are compared to 

those of Model Rule 4(B) of the original 1978 Model Federal Rules of Disciplinary Enforcement. 

Also, Section II reports the districts' responses to inquiries concerning problems experienced with 

the overall approach of their rule and with specific ethical standards such as those governing 

confidentiality, communication with represented parties, lawyers as witnesses, candor towards the 

tribunal, and conflict of interest. This section also reports the responses to questions about the need 

for uniformity of rules governing the professional conduct of attorneys. 

Section III describes the current procedures used by federal courts to address attorney 

misconduct matters. First, the districts' local rules that establish procedures for handling 

complaints of alleged misconduct are examined. These rules are loosely grouped based on the 

options the rule provides for the disposition of original allegations of misconduct. As will be 

explained in greater detail in' this section, the manner in which districts are currently handling 

attorney misconduct allegations cannot accurately be deterrnined,from their local rules because the 

majority of these rules provide several procedures from which the court may chose, and some even 

permit the court to dispose of the matter in any other manner deemed appropriate but not described 

in the rules. Therefore, the questionnaires asked the districts to report the procedures they use 

"typically" and "most frequently." Section III also reports the districts' satisfaction with and 

problems experienced with the procedure they reported using most frequently. Finally, additional 

information is presented about districts that typically refer attorney disciplinary matters to state 

disciplinary authorities and districts that typically refer disciplinary matters to committees or panels 

created within the district. 

II. Local Rules Governing Attorney Conduct in the Federal District Courts 

A . Analysis of Current Local Rules 

1 . Present Status and Categorization of Local Rules 

All 94 federal districts verified the existence ( or lack thereof) and content of their current 

local rules adopting standards of professional conduct for attorneys practicing before the districts' 

courts. Eighty-nine federal districts (95% of all districts) have a local rule informing attorneys 

1 Special acknowledgments are made to James B. Eaglin, Judith A. McKenna, David Rauma and Elizabeth C. 

Wiggins for their assistance throughout each stage of this study. 
Page 341 

practicing before the districts' courts which professional standards of conduct they are required to 

abide by. Five districts do not have such a local rule.2 

The July 5, 1995 report to the Committee, "Local Rules Regulating Attorney Conduct in 

the Federal Courts", identified several types of attorney conduct rules that vary according to the 

source of the standards adopted.3 For purposes of analysis, this report uses a similar approach to 

categorize the current local rules: 

1. State-based Rules4

: The district's local rule incorporates the relevant 

standards of the state in which the district is located. The local 

rules of 68 districts (76% of federal districts with attorney conduct 

rules) follow this approach. 

2. ABA Model-based Rules: The district's local rule adopts an ABA Model 

directly (either the ABA Canons of Professional Ethics (1908), the 

ABA Code of Professional Responsibility (1969) or the ABA 

Rules of Professional Conduct (1983)). The local rules of eight 

districts (9% of federal districts with attorney conduct rules) 

follow this approach (five adopt the ABA Model Rules, three 

adopt the ABA Model Code, and one adopts the ABA Canons). 

3. Combination State and ABA Model-based Rules: The district's local rule 

adopts both the relevant state standards of the state in which the 

district is located and an ABA Model. The local rules of 12 

districts (14% of federal districts with attorney conduct rules) 

follow this approach. 

The local rule of one district does not follow any of these three approaches. The local rule for the 

Northern District of Illinois adopts a unique standard of conduct that varies substantially from the 

ABA Model Rules and state standards. 

Verification by the districts and categorization of the districts' local rules based upon the 

source of the standards adopted allows us to conclude that the overwhelming majority of federal 

districts (95%) have adopted professional standards of attorney conduct by local rule and the 

majority of these districts (76%) incorporate the standards of professional conduct adopted by the 

state in which the district is located. Table A-1 in the Appendix identifies the current local rule 

governing attorney conduct in each of the eighty-nine districts with rules and shows the five 

districts that do .not have such a local rule. In addition, this table indicates which of the three 

previously defined approaches each district's local rule follows. 

2 All references to the districts' local rules and procedures are current as of April 28, 1997. 3 Daniel R. Coquillette, Local Rules Regulating Attorney Conduct In The Federal Courts 3-5 (July 5, 1995) (Report 

to the Committee on Rules of Practice and Procedure, Judicial Conference of the United States) [hereinafter July 

1995 Report to the Committee]. 

• Id. The July 1995 Report to the Committee further subdivides local rules that adopt state standards: (I) local rules 

that adopt state standards based on the ABA Model Rules of Professional Conduct (1983); (2) local rules that adopt 

state standards based on the ABA Code of Professional Responsibility (1969); (3) local rules that adopt the unique 

California Rules of Professional Conduct (different from both the ABA Rules and ABA Code). This report does not 

utilize these subdivisions. 

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2 . Rule 4(B) of the 1978 Model Federal Rules of Disciplinary 

Enforcement 

In 1978, the Judicial Conference Committee on Court Administration approved the Model 

Federal Rules of Disciplinary Enforcement to be adopted on a voluntary district-by-district basis. 

Model Rule 4(B) provided: 

Acts or omissions by an attorney admitted to practice before this Court, 

individually or in concert with any other person or persons, which violate the Code 

of Professional Responsibility [or Rules of Professional Conduct] adopted by this 

Court shall constitute misconduct and shall be grounds for discipline, whether or 

not the act or omission occurred in the course of an attorney-client relationship. The 

Code of Professional Responsibility [or Rules of Professional Conduct] adopted by 

this court is the Code of Professional Responsibility [ or Rules of Professional 

Conduct] adopted by the highest court of the state in which this Court sits, as 

amended from time to time by that state court, except as otherwise provided by 

specific Rule of this Court after consideration of comments by representatives of 

bar associations within the state.5 

Twenty-one districts6 have adopted a local rule regulating attorney conduct identical or nearly 

identical to Model Rule 4(B). Because Model Rule 4(B) incorporates the rules of professional 

responsibility adopted by the highest court of the state in which the district is located, these 21 

districts are part of the group of 68 districts we have identified as having adopted a state-based 

rule. We examined the similarity between the rules of these 21 districts and the other 47 districts 

with state-based rules. To do this, we determined whether the rules of the districts contained one or 

more of the five distinct components of Model Rule 4(B). Those components are: 

1. Subject to standards: Language defining who is subject to discipline for 

violation of the standards of professional conduct adopted by the 

district. Model Rule 4(B) applies its standards to "an attorney 

admitted to practice before this Court." · · 

2. Misconduct warrantin& discipline: Language defming misconduct and behavior 

warranting discipline. Model Rule 4(B) defines misconduct and 

behavior warranting discipline as "acts or omissions ... 

individually or in concert with any other person or persons, which 

violate the Code of Professional Responsibility [ or Rules of 

Professional Conduct] adopted by this Court shall constitute 

misconduct and shall be grounds for discipline, whether or not the 

act or omission occurred in the course of an attorney-client 

relationship." 

3. Identification of standards: Language identifying the standard of conduct 

adopted by the district. Model Rule 4(B) adopts "the Code of 

Professional Responsibility [or Rules of Professional Conduct] 

adopted by the highest court of the state in which this Court sits." 

Note that all of the eighty-nine attorney conduct rules in the districts 

were required to contain this component in order to be identified as a 

local rule establishing professional standards of conduct in this 

report. 

5 Model Rule (4) of the Model Federal Rules of Disciplinary Enforcement, as proposed by the Committee on Court 

Administration, Judicial Conference of the United States (1978). Bracketed language is commonly found in districts 

adopting this model rule in some form after adoption of the ABA Model Rules of Professional Conduct (1983). 

'D. Me., D. Mass., D. N.H., D. Vt., E.D. Pa., M.D. Pa., W.D. Pa., M.D. N.C., E.D. Va., W.D. Va., S.D. Ohio, 

E.D. Mich., S.D. Ill., S.D. Ind., E.D. Ark., W.D. Ark., D. Minn., E.D. Mo., W.D. Mo., D. Neb., D. Wyo. 

7 
Page 343 

4. Amendments to standards: Language indicating the district's intention to also 

adopt any amendments to its standards which may be promulgated 

by the source of its standards. Modal Rule 4(B) adopts standards of 

the highest state court "as amended from time to time by that state 

court." 

5. Exceptions to standards: Language explicitly preserving tbe district's ability to 

prescribe any rule or adopt any modification which is different than 

or in addition to the standards adopted. Model Rule 4(B) adopts 

standards of the highest state court as amended by that state court, 

"except as otherwise provided by specific Rule of this Court after 

consideration of comments by representatives of bar associations 

within the state." 

Table I shows how often the components of Model Rule 4(B) are found in the 21 districts with 

rules similar or identical to Model Rule 4 (B} and how often the components are found in the statebased local rules of the other 47 districts. The component, identification of standards, is not 

addressed in the table because all of the districts' rules contain language identifying the standards 

adopted by the rule. For each of the 68 districts with state-based attorney conduct rules, Table A-2 

in the Appendix presents the components of Model Rule 4(B) found in each rule. 

Table 1 

Components of Model Rule 4(B) in State-Based Attorney Conduct Local Rules 

Components of Model Rule 4(B) 

Subject to Misconduct Amendments to Exceptions to 

Standards Warranting Standards Standards 

Discinline 

Local rules 

identical or 21 21 21 18 

similar to Model (100%) (100%) (100%) (86%) 

Rule 4(B) (21 

districts) 

State-based local 

rules not similar 34 20 17 23 

or identical to (72%) (43%) (36%) (49%) 

Model Rule 4(B) 

in language used 

(41 districts) 

Almost by definition, three of the four components are found in the 21 local rules similar or 

identical in language to Model Rule 4(B); the fourth component is found in most of them. The 

various components of Model Rule 4(B) are also found in substantial numbers in the other statebased rules: two districts' rules contain none of the components of Model Rule 4(B); nine districts' 

rules contain one of the components; 22 districts' rules contain two of the components, 11 districts 

rules contain three of the components, and two districts• rules contain all four components. Thus, 

the rules of 35 districts (74% ), with state-based rules not identical or similar in language to Model 

Rule 4(B), contain language similar in meaning to two or more of the components of Rule 4(B). 

8 
) i 

Page 344 

· Table 2 below provides a comparison of the components of Model Rule 4(B) found in each 

of the three approaches to attorney conduct rules 7: state-based local rules, model rule-based local 

rules, and combination model rule and state-based local rules. 

Table 2 

Components of Model Rnle 4(B) in All Attorney Conduct Local Rnles 

Components of Model Rule 4(B) 

Subject to Misconduct Amendments to Exceptions to 

Standards Warranting Standards Standards 

Discinline 

State-Based 55 41 38 41 

Local Rules (68 (81%) (60%) (56%) (60%) 

districts) 

Model Rule- 7 6 1 2 

Based Local (88%) (75%) (13%) (25%) 

Rules (8 districts) 

Combination 12 10 3 3 

Model Rule and (100%) (83%) (25%) (25%) 

State-Based 

Local Rule (12 

districts) 

Although the local rules differ as to the source of the stanl;lards adopted, the other components of 

Model Rule 4(B) are found in a substantial number of districts with model rule-based and 

combination model rule. and state-based rules. Of the eight model rule-based rules, seven (88%) 

contain language similar in meaning to two or more of the components of Rule 4(B). For each of 

these eight districts with model rule-based attorney conduct rules, Table A-3 in the Appendix 

presents the components of Model Rule 4(B) found in each rule. Of the rules of the 12 districts 

with combination model rule and state-based rules, 10 (83%) contain language similar in meaning 

to two or more of the components of Rule 4(B). However, whereas provisions indicating whether 

the district also adopts any amendments to the standards adopted by the rule or provisions which 

explicitly preserve the districts' right to prescribe any rule or adopt any modification different than 

or in addition to the standards adopted are found in the majority of state-based local rules (60% of 

local rules that adopt relevant state standards), these provisions have been incorporated in only a 

small number of the other districts (25% of either districts with model based-rules or districts with 

combination state-based and model-based rules).For each of these 12 districts with combination 

model rule and state-based attorney conduct rules, Table A-4 in the Appendix presents the 

components of Model Rule 4(B) found in each rule. 

3 . Other Important Provisions in Attorney Conduct Rules 

Besides the components of Model Rule 4(B), several other provisions found in attorney 

conduct rules are notable. As will be reported in section II, part B.l, ambiguity in the language of a 

7 The Northern District of Illinois' local rule, which does not adopt either of the three approaches to attorney conduct 

rules identified in this report, only contains the first two components of Model Rule 4(B}-identification of who is 

subject to the adopted standards and a definition of the misconduct which will violate adopted standards and warrant 

discipline. 

9 
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district's local rule can result in conflict between, or confusion over, the applicable standards of 

conduct for attorneys practicing within a district. The presence or lack of certain provisions in a 

district's local rule may provide important insights into a district's experience with attorney conduct 

issues. One such provision indicates areas where a federal district court found it necessary to 

explicitly diverge from the standards adopted. Model Rule 4(B) adopts standards of the highest 

state court as amended by that state court, "except as otherwise provided by specific Rule of this 

Court after consideration of comments by representatives of bar associations within the state." 

Many districts contain similar language generally preserving the district's ability to prescribe any 

rule or adopt any modification which is different than or in addition to the standards adopted. 

However, some districts' attorney conduct rules more explicitly identify exceptions to its adopted 

standards. Six districts" (four with state-based rules and two with ABA Model rule-based rules) 

have local rules that adopt standards with the exception that these standards cannot conflict with 

federal law (i.e., statutes, regulations, court rules or decisions or law). Furthermore, the attorney 

conduct rules of eight districts9 explicitly identify provisions of the adopted standards that are not 

incorporated. Seven of the eight districts with explicit exceptions in their rules have a state-based 

rule, while one district has a combined model rule and state-based rule. The state-based rules 

explicitly refused to ad9pt state ethical standards governing the following areas: public statements 

by counsel in a criminal case ( one district); lawyer as a witness in both civil and criminal cases ( one 

district); propriety of prior court approval for issuance of subpoena to attorney in criminal case 

(five districts); confidentiality of information (one district); and misconduct issues (one district). 

The combination model rule and state-based rule explicitly refused to adopt ethical standards 

governing ABA Model Rule 3.8(f) (prosecutor's duty not to subpoena attorney in a criminal 

proceeding to present evidence about past or present client). These exceptions are presented in 

detail in the column "Exceptions to Adopted Rules" in Tables A-2 through A-4 in the Appendix. 

Standards of attorney conduct, both state standards and ABA Modal Rules, are regularly 

amended or modified. The issue of whether a state's local rule adopting a standard of conduct also 

adopts all subsequent amendments or modifi<;:ations to those standards is addressed by some 

districts in their local rule. Rule 4(B) adopts standards of the highest state court "as amended from 

time to time by that state court." This language indicates the district's intention to adopt any 

amendments to its standards which may be promulgated by the source of those standards (i.e., the 

state court). Three districts10 have provisions providing for the opposite---no subsequent changes 

valid unless el(.pressly adopted by court order. These exceptions are presented _in detail in the 

column "Other Important Provisions" in Tables A-2 through A-4 in the Appendix. 

Standards of attorney conduct may be interpreted by courts or other sources of attorney 

conduct standards. For example, state bars may issue opinions interpreting specific ethical 

standards. The issue of whether a district's local rule adopting a standard of conduct also adopts 

judicial or other a~ency interpretations of its standards is addressed by some districts in their local 

rule. Five districts 1 with state-based attorney conduct rules explicitly state the district's intention to 

follow judicial interpretations of their adopted state standards only by federal courts. Other 

districts12 (five districts with state-based rules and three districts with combination model rule and 

state-based rules) explicitly state the district's intention to adopt judicial interpretations by any court 

to which the districts' adopted standards apply. These exceptions are presented in detail in.the 

column "Other Important Provisions" in Tables A-2 through A-4 in the Appendix. 

'D. N.J., N.D. Ohio, D. Alaska, N.D. Fla., D. Del., D. V.I. See also Tables A-2 and A-3 in the Appendix. 

9 D. Conn., E.D. Pa., M.D. Pa., W.D. Pa., E.D. Va., W.D. Tenn., D. Haw., N.D. Ala. See also Tables A-2 and A4 in the Appendix. 10 D. Conn., M.D. La., D. Utah. See also Table A-2 in the Appendix . 

11 D. Conn., E.D. N.Y., S.D. N.Y., D. Utah., N.D. Ga. See also Table A-1 in the Appendix. 

12 D. Alaska, N.D. Cal., C.D. Cal., D. Idaho, W.D. Tex., E.D. Cal., S.D. Cal., N.D. Okla. See also Tables A-2 

and A-4 in the Appendix. 

10 
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4 . History of and Anticipated Changes to Local. Rules Regulating 

Attorney Conduct 

a. History 

The responses received to inquiries regarding the history of the districts' local rules indicate 

that local rules adopting professional standards of conduct for attorneys started emerging in the 

districts in the early I 970s, but by the early 1980s only a small minority of districts had adopted 

them. However, over the next decade the districts gradually adopted professional standards by 

local rule, and today all but five districts have such rules. Respondents in 52 districts reported that 

there have been no changes in their standards since initial adoption of the local rule. Respondents 

in twenty districts reported at least one change in standards since initial adoption. Eighteen districts 

were not aware of the history of their current local rule regulating attorney conduct. Among the 

districts reporting a change in standards, six districts reported changing the approach adopted by 

their local rule from an ABA model-based approach to a state-based approach; two districts 

changed from a combined ABA model rule-based approach to a state-based approach; one district 

reported moving from state-based standards to ABA model-based standards; three districts changed 

from state-based standards to combination model rule and state-based standards; and one district 

reported adopting a state-based local rule governing attorney conduct after previously having no 

specific standards. Table A-5 in the Appendix describes these reported changes in standards in 

more detail. Many of the respondents were not able to provide information about the reason for the 

changes. 

b. Anticipated Changes 

The districts were asked whether they had any current plans to amend their present local 

rule either by changing the standards governing attorney conduct in their district or adopting 

additional standards. Of the 76 districts responding to this inquiry, only three districts'reported 

having current plans for significant changes to their standards. The Southern'District of Indiana is 

examining the possibility of adding a local rule that specifically encompasses the standards of 

professional conduct within the Seventh Circuit and the Standards of Civility adopted by the 

Seventh Circuit. The District of Colorado is considering eliminating the adoption of the Colorado 

Supreme Court Rules of Professional Conduct and establishing its own new rules of conduct for 

lawyers admitted to its bar, If it does so, the District of Colorado will share the Northern District of 

Illinois' distinction as a federal district with standards of professional conduct unique to the 

district. The Middle District of North Carolina is considering amending its current rule to 

specifically adopt the final ethics opinions of the North Carolina State Bar that interpret and apply 

the Code of Professional Responsibility adopted by the North Carolina Supreme Court. 

5 . Districts Without a Local Rule Regulating Attorney Conduct 

The five districts13 that reported having no local rule specifying standards governing 

attorney conduct reported no plans to adopt such a local rule in the future. Respondents for these 

districts reported no problems due to the absence of a local rule. However, most of them have 

informal standards or local rules that establish general guidelines for attorney conduct. For 

example, when attorney conduct issues arise, the Northern District of Iowa applies the Code of 

Professional Responsibility for Lawyers adopted by the Iowa Supreme Court and supplemented by 

the ABA Model Rules. The Southern District of Iowa and the District of North Dakota both have 

13 W.D. Wis., N.D. Iowa, S.D. Iowa, D. N.D., D. S.D. 

11 
Page 347 

local rules 14 that establish general guidelines for courtroom decorum and conduct that warrants 

discipline, but do not adopt any specific standards of professional conduct. 

B. Problems Experienced by Federal Districts Due to the Over.all Approach 

of Their Attorney Conduct Rule 

The Committee identified five major problems related to the practical application of the 

variants of attorney conduct rules in the districts. 15 These problems are those created by 

ambiguously drafted rules, federal courts incorporating standards of conduct not included in any 

rule, due process and vagueness problems, multiforum problems, and problems resulting from the 

promulgation by federal agencies of their own attorney conduct rules. Overall, based upon an 

average response rate of 75 districts for each of the five problems discussed below, a total of 40 

districts (53%) reported having experienced one or more of these five problems with their attorney 

conduct rules. However, when each of these problems are examined individually as shown below, 

a very small minority of the districts reported their occurrence.The following five sections present 

the districts' responses to inquiries as to whether these problems have occurred in their district due 

to the approach adopted by their local rule regulating attorney conduct. 

1 • Problems Created by Ambiguously Drafted Rules 

We asked districts: "Has ambiguity in the language of the rule resulted in any conflicts 

between, or confusion over, applicable standards of conduct for attorneys practicing within your 

district?" If so, the district was requested to indicate whether the conflict or confusion had resulted 

from any of the following: 

1. The local rule adopts an ABA model as its standard of conduct, but the rule 

does not specify whether the Model Rules of Professional Conduct or the 

Model Code of Professional Responsibility are the applicable standard. 

2. The local rule clearly adopts the Model Rules of Professional Conduct as the 

court's standard of conduct, but the local rule does not specify whether the 

standard adopts the exact ABA version of the Model Rules, or the amended 

version of the state in which the court sits. 

3. The rule prescribes multiple standards of conduct without indicating which 

controls. 

4. The rule adopts the standards of the highest state court but does not specify 

what those standards are ( e.g., a version of the Model Rules of Professional 

Conduct or the Model Code of Professional Responsibility). 

5. The rule adopts the standards of the highest state court but does not indicate the 

force of state interpretations before and after the date of the local rule. 

6. The rule adopts the standards of the highest state court but does not specify 

whether those standards include amendments to the rules adopted by the state 

court after the date of the local rule. 

7. Other. Describe any other problems that have arisen in your district due to 

ambiguous language in your local rule. 

Sixty-nine of the 77 districts (90%) responding to this inquiry reported no conflicts or 

confusion resulting from ambiguity created by the language of their attorney conduct rule; 13 

14 Local Rules for the U.S. District Court for the S.D. Iowa, Rule 83.2(f)-(h); Local Rules for the U.S. District 

Court for the D. N.D., Rules 79.1 & 83.2(B). 

"July 1995 Report to the Committee, at 11-32. 

12 
Page 348 

(17%) reported the occurrence of conflicts or confusion derived from ambiguous language in their 

local rule. 

Six of the 13 districts reported problems resulting from rules that adopt the standards of the 

highest state court but do not specify what those standards are. Five districts experienced problems 

because their rule adopts the standards of the highest state court but does not indicate the force of 

state interpretations before and after the date of the local rule. Three districts reported experiencing 

conflict or confusion because their rule adopts the standards of the highest state court but does not 

specify whether those standards include amendments to the rules adopted by the state court after 

the date of the local rule. Two districts reported experiencing conflict or confusion because their 

rule prescribes multiple standards of conduct without indicating which controls. One district 

reported experiencing conflict or confusion because their local rule clearly adopts the Model Rules 

of Professional Conduct as the court's standard of conduct, but the local rule does not specify 

whether the standard adopts the exact ABA version of the Model Rules, or the amended version of 

the state in which the court sits. In addition, seven districts reported experiencing "other" 

problems because of ambiguous language in their attorney conduct rule. Table A-6 in the Appendix 

describes the problems reported by the 13 districts. 

2. Problems Created by Federal Courts Incorporating Standards Not 

Explicit In The Districts' Local Rules 

We asked districts: "Are attorneys practicing in your district prevented from relying on the 

explicit language of your local rule because your district has 'incorporated' external standards into 

your local rules or utilized external standards not apparent in the rules themselves to interpret the · 

rules?" If so, the districts were requested to indicate whether any of the following had occurred in 

their courts: · 

l . The local rule does not mention an ABA model, but your district has expressly 

incorporated an ABA model into your local rule governing attorney conduct. 

2. The local rule does not mention an ABA model, but your district looks to ABA models 

to "interpret" local rules and resolve ambiguities, even though your district has not 

expressly "incorporated" ABA models into its local rules. . . . 

3. Other. Describe how standards not explicit in your local rule were used to decide an 

issue(s) of attorney conduct in your district and any problems that this created. 

Out of the 71 districts responding to this inquiry, only seven (10%) reported that attorneys 

practicing in their district were prevented from relying on the explicit language of their local rules 

because their court used external standards to interpret the districts' attorney conduct rules. Two of 

the seven districts reported that their district looks to ABA models to "interpret" local rules and 

resolve ambiguities, even though their district has not expressly "incorporated" ABA models into 

its local rules. Four districts reported "other'' situations and problems caused by their use of 

external standards. For each of these seven districts, Table A-7 in the Appendix summarizes the 

nature of the problems reported by the seven districts. 

3. Due Process and Vagueness Problems 

Standards for attorney conduct must not be so vague as to not provide an attorney with 

sufficient notice of the prohibited conduct to meet constitutional due process guarantees. We asked 

districts: "Have complaints regarding lack of attorney due process arisen due to, at least in part, the 

vagueness of your district's local rule?" If so, the districts were requested to describe the nature 

and extent of such complaints. Out of the 76 districts responding to this inquiry, only six districts 

(8%) reported experiencing such complaints. All of these complaints reported due process 

13 
Page349 

problems with the districts' attorney discipline and reinstatement procedures. Table A-8 in the 

Appendix briefly describes the nature and extent of the complaints received by the six districts. 

4 . Multiforum Problems 

We asked districts: "Has your district experienced any difficulties arising from an attorney 

conduct problem involving multiple venues such as conflicts between different state standards, . 

between different district and circuit local rules, or between federal and state standards within your 

own district?" Out of the 76 districts responding to this inquiry, seven (9%) districts reported 

having experienced difficulties resulting from attorney conduct problems involving multiple 

venues. Most of these districts reported problems involving conflict between federal and state 

standards within their district, such as disagreeing with state's interpretation of standards and the 

decision to impose discipline. Table A-9 in the Appendix briefly describes the nature and extent of 

the difficulties experienced by the seven districts. 

5. Conflict with federal agencies promulgating their own attorney 

cond11ct rules. 

We asked districts: "Has your district experienced any difficulties arising from conflicts 

between your district's local rule and rules of professional conduct adopted by some federal 

agencies (such as the Department of Justice, the Securities and Exchange Commission, or the 

Patent and Trademark Office to name a few examples) to govern the conduct of their attorneys?" Of 

the 74 districts responding to this inquiry, seven (9%) districts reported that they had experienced 

problems due to conflicts between their local rules and rules of professional conduct adopted by a 

federal agency. Most of these districts reported problems with conflicting standards promulgated 

by the Department of Justice, Table A-10 in the Appendix briefly describes the nature and extent of 

the difficulties experienced by the districts. 

C. Problems Experienced by Districts Due to Specific Ethical Standards: 

Identification and Frequency of Problems 

The Committee has identified five categories of rules or ethical standards that appear to be 

implicated in most federal disputes involving attorney conduct16: 

I. Confidentiality: issues analogous to those addressed in ABA Model Rule 1.6. 

2. Communication with represented parties: issues analogous to those addressed in 

ABA Model Rule 4.2. 

3. Lawyers as witnesses: issues analogous to those addressed in ABA Model Rule 

3.7. 

4. Candor towards the tribunal: issues analogous to those addressed in ABA 

Model Rule 3.3. 

5. Conflict of interest: issues analogous to those addressed in ABA Model Rules 

1.7, 1.8, 1.9, 1.10. 1.1 I. 

16 Daniel R. Coquillette, Study of Recent Federal Cases Involving Rules of Attorney Conduct (December I, 1995) 

(Report to the Committee on Rules of Practice and Procedure, Judicial Conference of the United States) [hereinafter 

December 1995 Report to the Committee!. 

14 
Page 350 

Through the surveys, we attempted to determine whether the concentration of disputes in these 

areas resulted from problems with the controlling rule or standard (for example, lack of clarity or 

overbreadth). The districts were asked to identify the kinds of problems, if any, that they had 

experienced with the rules or standards in these five areas and any other area noteworthy to the 

district. Seventeen districts, 22 percent of the 78 districts responding to the inquiry, reported 

problems in one or more of the five areas. These districts were asked to indicate whether the 

particular ethical standard or standards identified as having created a problem(s) did so in at least 

one specific instance by meeting any of the following criteria: 

I . not speaking to the alleged unethical conduct. 

2. being unclear. 

3. being too broad. 

4. being too narrow. 

5. being inconsistent with other standards of conduct (e.g., local federal rules in 

conflict with state rules, local federal rules in conflict with other federal agency 

rules). 

6. Other. Please specify. 

For each of the 17 districts reporting a problem, Table A-11 in the Appendix shows which 

category of ethics standards created a problem and the manner or manners in which each standard 

created a problem(s) in at least one specific instance. The districts were also asked to indicate the 

frequency with which these problems were experienced within the past two years. Their responses 

are also shown in Table A-11 in parenthesis following the listing of criteria violated by the 

problematic ethical standard. 

The table below provides a summary of the responses of the 17 districts reporting a 

problem with one or more of the five areas of ethical standards. 

Table 3 

Problems Created by Specific Ethics Standards in· the Federal District Courts 

Ethical standard: # # Districts Responding That Ethics Standard Created a 

Districts Problem by: 

Reporting 

Ethics not being 

Standard speaking inconsistent 

Created a to alleged being being with other 

Problem: nnethical being too too standards 

conduct: unclear: broad: narrow: of conduct: Other: 

1. Confideniialitv 3 I I I I 

2. Communication 13 4 2 3 0 5 5 

with 

Represented 

Parties 

3. Lawyers as 3 I I I I 

Witnesses 

4. Candor Towards 6 2 3 2 I 2 

A Tribunal 

5. Conflict of 5 2 4 I I I 

Interest 

15 
Page 351 

The most problematic area is "communication with represented parties." This standard reportedly 

caused problems by being inconsistent with other standards of conduct (5 districts), not speaking 

to the alleged unethical conduct (4 districts), being too broad (3 districts), being unclear (2 

districts), and for a variety of other reasons (5 districts). (See Table A-11 in the Appendix for a 

description of the "other" problems.) Issues involving candor towards a tribunal and conflict of 

interest created the second largest source of problems (65% combined), while lawyers as witnesses 

and confidentiality created the least (35% combined). However, when these reported problems are 

viewed in the context of all districts responding to this inquiry (4% of all districts responding 

reported problems with confidentiality; 17 % of all districts reported problems with communication 

with represented parties; 4% with lawyers as witnesses; 8% with candor towards a tribunal, and 

6% reporting problems with issues involving conflict of interest), with the exception of 

communication with represented parties to a limited extent, these specific ethical standards do not 

present a problem for most federal districts. 

D. National Uniformity 

. One of the questions before the Committee is whether a single set of rules should govern 

the professional conduct of attorneys in all federal courts.' 7 We asked the questionnaire 

recipients 1

8

: "Should all.federal district courts have the same rules governing the professional 

conduct of attorneys?" 

Out of 79 districts that responded, 24 (30%) indicated that they would be in favor of a 

national rule; 53 respondents (67%) did not support a national rule, and two had no opinion. Table 

A-12 in the Appendix presents the individual responses for the 79 districts answering this inquiry. 

E. Selective Uniformity 

An alternative to a national standard would be uniform national federal rules for attorney 

conduct only.in certain key areas with state standards governing all other areas. We asked the 55 

respondents who said their district is not in favor of a national rule regulating attorney conduct in 

all areas: "Should all federal courts have the same rule governing the professional conduct of 

attorneys in the atea of: confidentiality? communications with represented parties? lawyers as 

witnesses? candor towards a tribunal? conflict of interest?" 

The following table presents an overview of the responses to selective uniformity for each 

category of ethical standards. See Table A-13 in tbe Appendix for the individual responses of 

districts in favor of uniformity for one or more of the areas of ethics standards. Close to threefourths of the districts opposed to national uniformity are also opposed to uniformity of standards 

in each of the selected areas of ethical standards. In addition, among the candidates for uniformity•" 

there is no one ethical standard significantly more favored by the districts over the others. 

17 July 1995 Report to the Committee, at 38-40. 18 Questions regarding national and selective unifonnity of standards were asked only of the Chief Judge or other 

identified judicial representative for the district. 

16 
· Page 352 

Table 4 

Selective Uniformity of Ethical Standards in the Federal District Courts 

Ethical Standard: # Districts in Favor or ff Districts Opposed to # Districts with No 

Selective Unitormitv Seleclive Uniformitv n...inion 

1. Confidentiality 12 40 3 

(22%) (73%) (5%) 

2. Communication with Represented Parties 13 39 3 

(24%) (71%) (5%) 

3. Lawyers as Witnesses II 41 3 

(20%) (75%) (5%) 

4. Candor Towards A Tribunal 16 36 3 

(29%) (65%) (5%) 

5. Conflict of Interest 12 40 3 

(22%) (73%) (5%) 

III. Attorney Discipline in the Federal District Courts 

All 94 federal districts responded to the inquiry verifying the existence ( or lack thereof) and 

content of their current local rule adopting procedures for the discipline of attorneys in their courts. 

Eighty-eight federal districts (94% of all districts) have a local rule containing some type of 

procedures for the discipline of attorneys, and six districts do not have such a local rule. Table Al 4 in the Appendix presents the current attorney discipline rules in each district and identifies the 

districts without rules. 

Attorney discipline in the federal districts is a catchall phrase encompassing several 

different situations that could warrant discipline. Attorneys convicted of a serious crime could be 

immediately suspended from practice before the court and after hearing, further disciplined. An 

attorney formally disciplined by another court could be subject to the identical discipline by the 

district court. Finally, a district court might impose discipline upon an attorney when misconduct 

or allegations of misconduct are brought to the court's attention, whether by complaint or 

otherwise. A district with a local rule adopting disciplinary procedures may specifically address 

some, all, or none of these situations. 

The Committee requested inforination on the procedures used by districts to address 

complaints or allegations of attorney misconduct. These procedures may include investigation, . 

prosecution, and application of the districts' attorney ethics standards to determine if discipline is 

warranted. The inquiries in the second section of the questionnaire focused on the districts' 

approaches for addressing allegations of misconduct, and not on their procedures for determining 

whether reciprocal or additional discipline should be imposed after the attorney's conduct has 

already been adjudicated as warranting conviction or discipline by another court. Most districts 

allow broad judicial discretion in this area-both in determining how complaints of attorney 

misconduct should be handled and where the matter should be referred. This makes it difficult to 

gain an accurate picture of the approaches actually followed in the districts from the local rules.:· 

Therefore, questionnaire responses are used in conjunction with their districts' local rules to 

provide a more complete account of the actual approaches followed by federal district courts. 

A. Current Local Rules Regulating Attorney Discipline 

1 . Analysis and Grouping of Attorney Discipline Rules 

Wide variation exists among the provisions of the districts' local rules establishing 

procedures for addressing misconduct or allegations of misconduct brought to the courts' attention 

17 
Page 353 

by formal complaint or otheiwise. Some of these rules are extremely detailed and provide 

procedures for every stage of disposition, while others are very broad and general. For purposes 

of analysis and comparison, we have placed the eighty-eight districts with disciplinary rules into 

one of the following loosely defined groups based upon the options provided by the districts' local 

rule for disposition of attorney misconduct matters: 

Group 119 : Districts with a local rule permitting ("may refer") or requiring ("shall 

refer") a judicial officer to refer disciplinary matters (for purposes of 

investigating allegations of misconduct, prosecuting disciplinary 

proceedings, formulating other appropriate recommendations and/or 

conducting a hearing at which a decision to impose disciP.line is made) either 

to bodies or person(s) outside of the federal district court20 (such as the bar 

of the state wherein the district is located; the disciplinary agency of the 

highest court of the state wherein the attorney maintains his or her principal 

office; any disciplinary agency the court deems proper; the United States 

Attorney for the district) and/or to bodies or persons within the federal 

court (such as member(s) of the bar of the district court; permanent or 

temporary disciplinary bodies such as "grievance committees," "disciplinary 

committees or panels," "executive committees," etc.). 

Group 2: Districts with a local rule requiring a judicial officer ("shall refer'') to refer 

disciplinary matters of a more serious nature (may warrant suspension or 

disbarment) exclusively to bodies or person(s) outside of the federal 

district court (such as the bar of the state wherein the district is located; the 

disciplinary agency of the highest court of the state wherein the attorney 

maintains his or her principal office; any disciplinary agency the court 

deems proper; the United States Attorney for the district). · 

Group 3: Districts with a local rule permitting ("may") or requiring ("shall") a 

judicial officer to handle the disciplinary matter himself or herself or refer 

the matter exclusively to bodies or person(s) within the federal district 

court (such as member(s) of the bar of the district court; permanent or 

temporary disciplinary bodies such as "grievance committees,., "disciplinary 

committees or panels," "executive committees," etc.). 

At present, the disciplinary rules of 54 districts ( 61 % of districts ..vith rules) fit into 

Group l; three districts' rules fall into Group 2 ( 3% of districts with rules), and the rules of 31 

districts fit into Group 3 ( 35% of districts with rules). For each district with a disciplinary rule, 

Table A-14 in the Appendix indicates which of the three groups the rule fits into. Ifwe operate 

under the assumption that all attorney conduct matters are handled by each district according to the 

procedures provided in its local rule, we cannot make many definitive statements about the 

approaches followed in the federal districts. With this assumption, the only conclusions that can be 

made are that: (1) districts providing the judicial officer with many options and wide discretion for 

choosing among them for addressing complaints of attorney misconduct are in the oveiwhelming 

majority; (2) districts handling attorney discipline matters exclusively within the district or 

exclusively referring the matters outside of the district with no provisions for disposing of the 

19 There is wide variation among the rules of districts within this grouping. Some of these rules allow for discretion 

as to referral of the matter either within or outside of the district court only at the investigation and prosecution 

stages, with the district making the final decision as to discipline. Other rules permit the matter to be referred either 

outside or within the district or sometimes both for investigation, prosecution and final disposition. 

20 All references to "outside of the district" or "within the district" refer to judicial employees of the federal district 

court and attorneys who are members of the district court's bar, and not to the geographical boundaries of the district 

within which the federal court is located. 

18 
Page 354 

matter within the district are a minority. Further, both Groups 1 and 3 (which represent 97% of all 

districts with disciplinary rules) contain districts with disciplinary rules that are discretionary. In 

other words, the rule outlines procedures for addressing attorney misconduct complaints that a 

judicial officer "may" choose to follow or, if not, adopt any other procedures deemed appropriate. 

This makes it even more difficult to accurately determine which approach among the several 

provided in these rules is actually used, not to mention determining which is used most frequently. 

2 . History of and Anticipated Changes to Local Rules on Attorney 

Discipline 

The districts' responses to inquiries regarding the history of their disciplinary rules shows 

movement towards more detailed procedures for addressing complaints of attorney misconduct. 

Many districts (25) reported amending their rules several times since initial adoption due to a "need 

for more detailed procedures" and also so that their local rules reflect actual practices within the 

districts. 

Among the 78 districts responding to an inquiry about whether they had plans to amend 

their current disciplinary rules, 18 reported having proposed amendments. Some proposals are 

only at the discussion stage while others are in draft form awaiting approval. Five of the 18 

districts plan to adopt rules that contain substantially more detailed disciplinary procedures than 

previously found in their local rules.21 Other reasons given for the planned or proposed changes 

include the need to have rules that provide more strearnlined,grecise and simpler disciplinary 

procedures from those previously described as cumbersome; to adopt rules that allow for a more 

proactive approach to attorney discipline23, and to adopt rules which allow for more discretion and 

flexibility for the court in the disciplinary process. 

24 

B . Procedures Reportedly Used by the Federal District Courts to Address 

Complaints of Attorney Misconduct 

1 . Districts Report Typical Approaches Used and Most Frequently Used 

Approach 

We asked the respondents to choose from a list of general approaches (l) all of the 

approaches to attorney disciplinary used by the district; and (2) the approach most frequently used 

by the district. The respondents chose from the following list of general approaches: 

1. Refer the matter to the group or agency charged with enforcing state ethical standards 

( e.g., state bar or attorney grievance commission) for whatever action that agency 

deems warranted. 

2. Appoint the group or agency charged with enforcing state ethical standards to 

investigate and present the matter to the federal district court. 

3. Refer the matter to a single judge in the district. 

4. Refer the matter to a panel or committee of judges in the district. 

5. Refer the matter to a panel or committee of attorneys in the district for investigation and 

presentation to the federal district court. 

6. Appoint an attorney to investigate and present the matter to the federal district court. 

21 W.D. Mich., D. Or., D. N.M., D. Vt., M.D. Ala. 22 D. P.R., S.D. Ill., W.D. Mo. 

2J S.D. Ind. 

" D. Mass., E.D. Mich., E.D. Ark., W.D. Mo. 

19 
1 

l ' 

Page 355 

7. Refer the matter to the U.S. Attorney for investigation. 

8. Handle it in another way. Please explain. ' 

Next, we asked the respondents to think about the most recent case of alleged attorney misconduct 

in which the district used what they indicated as the "most frequently used procedure" and reply as 

to whether the respondent or, to his or her knowledge, other judges in the district, were either (1) 

dissatisfied with the procedure used; or (2) dissatisfied with the outcome of the case. The 

following three subsections present the responses to these inquiries for each of the three groupings 

of districts defined above in section ill.A. 

a. Group 1 Districts 

For Group I districts, districts with rules permitting or requiring disciplinary matter to be 

handled within the district court and/or referred to a person or body outside of the district court, 

Table A-15 in the Appendix presents the approaches the individual districts reported using, the 

approach(es) they reported using most frequently, and their reported dissatisfaction with this 

procedure and outcome in a recent case. For the 45 Group I districts responding to these inquiries, 

the following table shows the number of districts that reported using each of the eight approaches 

listed above, the number of districts reporting each approach as the one they use most frequently, 

and the number of districts reporting dissatisfaction with either the procedure or outcome in a 

recent case in which they used one of approaches listed below. 

Table 5 

Approaches Used by Group 1 Districts to Address Attorney Misconduct Complaints 

General Approaches: # Districts # Districts ff Districts # Districts 

Reported Reported Approach Reporting Reporting 

Using as Most FrequcnUy Dissatisfaction with Dissatisfaction with 

App~oac.b:• Used:• Procedure In Recent Outcome in Recent 

Case: Case: 

I. Refer the matter to the group or agency 30 19 7 7 

charged with enforcing state ethical standards · (67%) (42%) 

(e.g .• state bar or attorney grievance 

commission) for whatever action that agency 

deems warranted. 

2. Appoint the group or agency charged with 13 4 0 1 

enforcing state ethical standards to investigate (29%) (9%) 

and present the matter to the federal district 

·court. 

3. Refer utc matter to a single judge in _the 15 0 

district. (33%) 

4. Rerer tne matter to a panel or COlllllllttee ot 14 7 1 1 

iudees in the district. (31%) (16%) 

5. Refer the matter to a panel or committee of 8 4 0 0 

attorneys in the district for investigation and (18%) (9%) 

oresentation to the federal district court. 

b. Appoint an attorney to mvest.tgate and 19 7 2 2 

ortsent the matter to the federal district court. (42%) (16%) 

7. Refer the matter to the U.S. Attorney for 10 3 1 0 

investi1r.1tion. (22%) (7%) 

8. Handle it in another way. Please explain. 5 6 0 0 

(11%) (13%) . 

*Percentages in these columns do not add to 100 because some d1stncts reported usmg more than one approach or 

reported more than one approach as "most frequently used". 

Out of the 45 responding districts in Group I, the approach the majority of these districts (30 

districts or 67% of responding Group l districts) reported using, and the approach the largest group 

20 
Page 356 

of districts ( 19 districts or 42% of responding Group 1 districts) reported as the most frequently 

used approach in their district was referring the matter to the group or agency charged with 

enforcing state ethical standards for whatever action the agency deems is warranted. Likewise, this 

approach received the highest number (seven) of complaints of dissatisfaction both with the 

procedure and outcome of recent cases. 

To analyze the responses further, we can divide the eight approaches into three categories 

based upon whether the disciplinary matter is handled outside of the district court (both for 

investigation and final disposition), within the district court (both for investigation and final 

disposition), or both outside of the district court (for investigation) and within the district court (for 

final disposition).25 The category that refers the matter outside of the district court for investigation 

and final disposition includes the following approach (row 1 in the table above): referring the matter 

to the group or agency charged with enforcing state ethical standards for whatever action that agency 

deems warranted. The second category of approaches handles the matter within the district court: 

referring the matter to a single judge in the district (row 3); referring the matter to a panel or 

committee of judges in the district (row 4); referring the matter to a panel or committee of attorneys 

in the district for investigation and presentation to the federal district court (row 5); handling the 

matter another way (these districts reported handling the matter within the district, either by the 

presiding judge or the court as a whole) (row 8). The third category of approaches refers the matter 

both outside of the district court for investigation and within the district court for final disposition: 

appointing the agency charged with enforcing state ethical standards to investigate and present the 

matter to the federal district court (row 2); and referring the matter to a United States Attorney for 

investigation (row 7). One approach, appointing an attorney to investigate and present the matter to 

the federal district court (row 6), can fit into either the second or third category depending upon 

whether the appointed attorney is a member of the district court (fits into second category) or not 

(fits into third category). · 

Out of the approaches the responding Group 1 districts reported using, 30 of these 

approaches (26% of all approaches reported being used by Group 1 districts) refer the matter 

outside of the district court for investigation and final disposition; 61 of these approaches (53% of 

all approaches reported being used by Group 1 districts) handle the investigation and final 

disposition within the court; and 42 of these approaches (37% of all approaches reported being used 

by Group 1 districts) refers the matter both outside the district court for investigation and within the 

district court for final disposition. Out of the approaches the responding Group 1 districts reported 

using most frequently, 19 of these approaches (38% of all approaches reported used most 

frequently by Group 1 dis\ficts) handle the matter outside of the district court for investigation and 

final disposition; 24 of these approaches (48% of all approaches reported used more frequently by 

Group 1 districts) handle the investigation and final disposition within the court; and 14 of these 

approaches (28% of all approaches reported used most frequently by Group 1 districts) refer the 

matter both outside the district court for investigation and within the district court for final 

disposition. Note that the percentages do not add to 100 because the reported instances of 

"appointing an attorney to investigate and present the matter to the federal district court" are included 

in the total for categories two and three, in both the calculation of approaches used by the district 

and approaches used most frequently. 

This categorization scheme allows us to make some observations: (1) The category of 

approaches used by the largest number of Group 1 districts (based both upon the approaches 

reportedly used and used most frequently) handles complaints or allegations of attorney misconduct 

by addressing the matter within the district court, both investigation and final disposition; (2) The 

majority of Group 1 districts (based both upon the approaches reportedly used (63% ) and used 

25 As indicated earlier, all references to "outside of the district" or "within the district" refer to judicial employees of 

the federal district court and attorneys who are members of the district court's bar, and not to the geographical 

boundaries of the district within which the federal court is located. 

21 
Page 357 

most frequently (66% )) favor the approach of referring the matter outside of the district court for 

investigation of the allegations.(3) The majority of Group l districts, based both upon the 

approaches reportedly used (90%) and approaches reported as used most frequentlly (78% ), prefer 

to conduct the final disposition of the matter within the district court. 

b. Group 2 Districts 

For Group 2 districts, districts with rules requiring disciplinary matters of a serious nature 

to be referred to a person or body outside of the district court, Table A-16 in the Appendix: presents 

the approaches the individual districts reported using in their district, the approach(es) they 

reported using most frequently, and their reported dissatisfaction with this procedure and outcome 

in a recent case. For the three Group 2 districts responding to these inquiries, the following table 

shows the number of districts that reported using each of the eight approaches listed above, the 

number of districts reporting each approach as the one they use most frequently, and the number of 

districts reporting dissatisfaction with either the procedure or outcome in a recent case in which 

they used one of approaches listed below. 

Table 6 

Approaches Used by Group 2 Districts to Address Attorney Misconduct Complaints 

General Approaches: • Districts # Districts # Districts V Districts 

Reported Reported Approach Reporting Reporting 

Using as Most Frequently Dis.satisfaction with Dissatisfaction with 

Approach:• Used:• Procedure in Recent Outcome lo Recent 

Case: 

1. Refer the matter to the group or agency I 2 0 

charged with enforcing state ethical standards (33%) (67%) 

(e.g .. state bar or attorney grievance 

commission) for whatever action that agency 

deems warranted. 

2. Appoint the group or agency charged with I 0 0 

c.nforcing state ethical standards to investigate (33%) (0%) 

and present the matter to the federal district 

court. 

3. Refer the matter to a single judge in the I I 0 

district. (33%) (33%) 

4. Reter the matter to a panel or committee of I 0 0 

iud..- in the district. (33%) (0%) 

5. Refer tne matter to a panel or corruruttee of 0 0 0 

anomeys in the district for investigation and (0%) (0%) 

........,..,ntation to the federal district court. 

6. Appomt an attorney to investigate anG I 0 0 

nrescnt the matter to the federal district court. (33%) (0%) 

7. Refer the matter to the U.S. Attorney for 0 0 0 

investi2:ation. (0%) (0%) 

8. Handle it in another way. Please explain. 0 0 0 

(0%) (0%) 

*Percentages in these columns do not add to 100 because some districts reported using more than one 

approach or reported more than one approach as "most frequently used". 

Case: 

0 

0 

0 

0 

0 

0 

0 

0 

Of the three responding districts in Group 2, two districts said the most frequently used approach 

was referring the matter to the group or agency charged with enforcing state ethical standards for 

whatever action the agency deems is warranted; these districts also reported sending the matter 

outside the district court for investigation but making the final disposition within the district court. 

Toe other Group 2 district reported that the approach it uses most frequently is referring the matter 

22 

.. 
Page 358 

to a single judge in the district; this district also reported sending the matter to a panel or committee 

of judges in the district. Thus, although the local rules of these three districts specifically require 

serious disciplinary matters to be sent outside of the district court for investigation and final 

disposition, this practice is not always followed in these districts. 

c. Group 3 Districts 

For Group 3 districts, districts with rules permitting or requiring disciplinary 

matters to be handled within the district, Table A-17 in the Appendix presents the approaches the 

individual districts reported using in their district, the approach(es) they reported using most 

frequently, and their reported dissatisfaction with this procedure and outcome in a recent case. For 

the 25 Group 3 districts responding to these inquiries, the following table shows the number of 

districts that reported using each of the eight approaches listed above, the number of districts 

reporting each approach as the one they use most frequently, and the number of districts reporting 

dissatisfaction with either the procedure or outcome in a recent case in which they used one of 

approaches listed below. 

Table 7 

Approaches Used by Group 3 Districts to Address Attorney Misconduct Complaints 

General Approaches: # Districts # Districts # Districts # Districts 

Reported Reported Approach Reporting Reporting 

Using as Most F~quently Dissatisfaction with Dissatisfaction with 

Approach:• Used:• Procedure in Recent Outcome in Recent 

Case: Case: 

1. Refer the matter to the group or agency 15 13 I 0 

charged with enforcing state ethical stan(fards 

(e.g., state bar or attorney grievance 

(60%) (52%) 

commission) for whatever action t1.1at agency 

deems warranted. 

2. Appoint the group or agency charged with 

enforcing state ethical standards to investigate 

0 0 0 0 

and present the matter to the federal district 

court. 

3. Refer the matter to a single Judge in the IO 7 2 I 

district. (40%) (28%) 

4. Relertlie matter to a panel or comnuttee of 7 4 I 0 

iud0 es in the district. (28%) (16%) 

5. Refer the matter to a panel or committee of 8 2 3 I 

attorneys in the district for investigation and 

nresentation to the federal district court. 

(32%) (8%) 

6. Appomt an attorney to mvesugate and -6 0 I 0 

nresent the matter to the federal district court. (24%) 

7. Refer the matter to the U.S. Attorney for 3 3 0 0 

investiaation. (12%) (12%) 

8. Handle ll in another way. Please explain 3 I 0 0 

(12%) (4%) 

*Percentages in these columns do not add to I 00 because some districts reported using more than one approach or 

reported more than one approach as "most frequently used". 

Out of the 25 responding districts in Group 3, the approach the majority of these districts (15 

districts or 60% of responding Group 3 districts) reported using, and the approach the largest group 

of districts (13 districts or 52% of responding Group 3 districts) reported as the most frequently 

used approach in their district was referring the matter to the group or agency charged with 

enforcing state ethical standards for whatever action the agency deems is warranted. This finding 

directly contradicts the procedures provided for in these districts local rules. However, as explained 

in section ill.A. l, several of the local rules for Group 3 districts are discretionary. The judicial 

23 

I 

I 

' 

' I 
Page 359 

officer may use his or her discretion and either follow the procedures provided for by the rule 

(addressing the matter within the district) or handle the matter in another way deemed appropriate. 

For further analysis, we can use the categorization introduced earlier that distinguishes 

between an approach that refers investigation and disposition of the misconduct complaint outside 

of the district court, approaches that investigate and arrive at final disposition within the district 

court, and approaches that both refer the matter outside of the district court for investigation and 

within the district court for final disposition. Of the approaches the responding Group 3 districts 

reported using, 15 of these approaches (29% of all approaches reported being used by Group 3 

districts) refer the matter outside of the district court for investigation and final disposition; 34 of 

. these approaches (65% of all approaches reported being used by Group 3 districts) handle the 

matter within the district court for investigation and final disposition; and 9 of these approaches 

( 17% of all approaches reported being used by Group 3 districts) refer the matter both outside of 

the district court for investigation and within the district court for final disposition. Out of the 

approaches the responding Group 3 districts reported using most frequently, 13 of these 

approaches (43% of all approaches reported being used most frequently by Group 3 districts) refer 

the matter outside of the district court.for investigation and final disposition; 14 of these 

approaches (47% of all approaches reported being used most frequently by Group 3 districts) 

handle the inatter within the district court for investigation and final disposition; and 3 of these 

approaches (10% of all approaches reported being used most frequently by Group 3 districts) refer 

the matter both outside of the district court for investigation and within the district court for final 

disposition.26 

This categorization scheme allows us to make some observations: (1) The category of 

approaches reportedly used by the largest number of Group 3 districts (based both upon the 

approaches reportedly used (65%) and reported as used most frequently (47%)) handles attorney 

misconduct matters within the district court, both for investigation and prosecution; (2) Although 

the majority of Group 3 districts (65% of approaches reportedly used) preferred to handle the 

investigation of attorney misconduct matters within the district court, their responses based upon 

the approach most frequently used shows a slight preference (53% of approaches reported as used 

most frequently) for referring the matter outside the district court for investigation; (3) The majority 

of Group 3 districts (based both upon the approaches they reported as using (82%) and as used 

most frequently (57%)), prefer to conduct the final disposition of the matter within the district 

court. 

d. All Groups Combined 

Of the 73 districts responding from Groups l, 2 and 3 combined, the procedure they 

reported as using most frequently (34 districts or 47% of all districts responding) was referring the 

matter to the group or agency charged with enforcing state ethical standards for whatever action 

that agency deems warranted. In order of decreasing popularity, 11 districts (15% of all districts 

responding) reported referring the matter to a panel or group of judges within the district; eight 

districts ( 11 % ) refer the matter to a single judge within the district; 7 districts (l 0%) appoint an 

attorney to investigate and present the matter to the federal district court; 6 districts (8%) refer the 

matter to a panel or committee of attorneys in the district for investigation and presentation to the 

federal district court; 6 districts (8%) refer the matter to the United States Attorney for 

investigation; 6 districts (8%) handle the matter another way (all reported disciplinary matters are 

26 Note that the percentages do not add to 100 because the reported instances of "appointing an attorney to investigate 

and present the matter to the federal district court" are included in the total for categories two and three, in both the 

calculation of approaches used by the district and approaches used most frequently. In addiiton, the approaches 

reported by districts that "handle the matter another way" fit within the category of approaches that address attorney 

misconduct matters within the district court, for both investigation and final disposition. 

24 
Page360 

handled within the district); and 4 districts (5%) appoint the group or agency charged with 

enforcing state ethical standards to investigate and present the matter to the federal district court. 

Of the approaches that Groups l, 2, and 3 reported as using most frequently, 34 of these 

approaches (41 % of all approaches reported used most frequently) referred the disciplinary matter 

outside of the district court for investigation and final disposition; 39 of these approaches ( 47% of 

all approaches reported used most frequently) investigate and arrive at a final disposition of the 

complaint within the district court; and 17 of these approaches (20% of all approaches reported 

used most frequently) both send the complaint outside of the district court for investigation and 

within the district court for final disposition. 27 This comparison allows us to make some overall 

observations: (1) The approach slightly favored by the largest number (47% of all approaches 

reported as used most frequently) of all responding districts is to address the attorney misconduct 

matter within the district court, both for investigation and final disposition; (2) The majority of all 

responding districts (61 % of all approaches reported as used most frequently) prefer to refer the 

investigation of attorney misconduct allegations outside of the district court; (3) The majority of all 

responding districts (67% of all approaches reported as used most frequently) favor handling the 

final disposition of the matter within the district court. 

2. Referring Attorney Misconduct Complaints to State 

Disciplinary Authorities 

We asked respondents from districts that typically refer the majority of attorney disciplinary 

matters to committees or panels created within their district to answer several questions about their 

practices. We asked them to indicate their district's level of overall satisfaction with the process by 

which allegations of attorney misconduct in federal court are addressed by the state disciplinary 

agencies. Of the 45 districts who responded to this inquiry, 23 districts (51 %)reported being very 

satisfied, 15 districts (33%) reported being somewhat satisfied, 3 districts (7%) reported being 

somewhat dissatisfied, 2 districts (4%) reported being very dissatisfied, and 3 districts (7%) 

indicated they don't know. 

Next, we asked these districts if there had been instances during the past two years in 

which the districts were not satisfied with the process by which attorney misconduct complaints 

were handled by state disciplinary agencies and/or the final outcome decided by the state 

disciplinary agency. Of the 47 districts responding to this inquiry, 34 reported no instances of 

dissatisfaction, and 13 districts indicated that there.have been instances within the past two years 

when they were not satisfied. In addition, we asked the 13 districts reporting instances of 

dissatisfaction to indicate (l) whether they had experienced problems with the procedure and/or 

problems with the outcome (or other problems); and (2) whether they had addressed any of these 

matters de novo in federal court; and (3) the frequency of this occurrence within the past two years. 

Four districts indicated problems with the procedure and ten districts indicated problems with the 

outcome. Five of the districts reporting instances of dissatisfaction indicated they had addressed a 

matter de novo within the past two years. 

27 Note that the percentages do not add to 100 because the reported instances of appointing an attorney to investigate 

and present the matter to the federal district court are included in the total for categories two and three, in both the 

calculation of approaches used by the district and approaches used most frequently. In addition, all responses to row 8 

"handle another way" are included within the category that handles complaints within the district court. 

25 
Page 361 

3 . Referring Attorney Misconduct Complaints to Committees or Panels 

Within the District 

We asked respondents from districts that typically refer the majority of attorney disciplinary 

matters to committees or panels created within their district to answer several questions about their 

practices. We asked the 17 districts28 that responded to discuss the advantages and disadvantages 

of addressing complaints of ethics violations within the district court instead of referring the 

matters to state disciplinary bodies or other external bodies. Ten districts felt that an advantages of 

having established internal bodies included the ability to address a violation occurring in the district 

court by the body most familiar with the issues and where relatively few complaints arise, instead 

· of by state disciplinary bodies that are considered by some districts to be overworked and much too 

slow. Two districts feel that having control over the disciplinary process would more clearly and 

closely reflect the views and priorities of the district, rather than risk relinquishing the matter to a 

state agency that may have its own agenda. One district believes that handling disciplinary matters 

within the district court conveys to attorneys practicing in the district interest in their professional 

compartment and has a strong effect on the tone of practice in a district. 

Disadvantages reported included the necessary time that must be allocated for disciplinary 

matters which results in an increased workload for federal judges and practitioners (four districts); 

lack of funds to support disciplinary committees (two districts); possibility of presenting conflict of 

interest issues (one district); and lack of public notification regarding federal committee's decision 

(one district). In addition, one district reported feeling that having a separate investigative body and 

staff would not be cost effective given the relatively few situations that present themselves for 

processing in the federal districts. Another respondent pointed out that since most lawyers who 

breach state standards also breach federal court standards simultaneously, reciprocal discipline is 

reasonable, fair and effective. 

4. Districts Without a Local Rule Prescribing Procedures for 

Addressing Attorney Misconduct Complaints 

As mentioned previously in section III, A.I, at present six districts do not have a local rule 

establishing procedures for addressing allegations of attorney misconduct. However, several of the 

districts reported regularly using informal procedures to address disciplinary matters. For example, 

in the District of Arizona the presiding judge in each division handles routine disciplinary matters, 

and in unusual or more serious cases, the court refers the matter to its ''Lawyers Discipline 

Committee" consisting of two district judges and one bankruptcy judge. The Western District of 

Wisconsin feels that routine attorney misconduct matters are adequately addressed by individual 

dealings between trial judges and attorneys in the case before them. In more complex or serious 

cases, the chief judge may refer the matter to the state bar. 

· We asked these districts what problems (if any) they had or were experiencing due to their 

lack of local rules establishing formal disciplinary procedures. All five responding districts 

reported experiencing no problems. Moreover, only one district, the Western District of Louisiaria:; 

reported that it was considering adopting rules of disciplinary procedure in the future; the other five 

responding districts had no plans to do so. 

28 D. Mass., D. P.R., D. R.I., E.D. N.Y., S.D. N.Y., E.D. Pa., D. Md., E.D. Va., W.D. Tex., N.D. Ohio, W.D. 

Ark., E.D. Wash., D. N.M.I., D. Colo., D. N.M., E.D. Okla., and N.D. Okla. 

26 
Page 362 

C. Frequency of Attorney Misconduct Complaints in the Federal 

District Courts 

We conclude attempting to put a perspective on the scope of attorney misconduct problems 

in the federal districts. We asked the districts to provide the approximate number of complaints 

( either formal or otherwise) alleging attorney misconduct received or initiated sua sponte in 

calendar year 1996, and the number of these dropped or dismissed before any formal procedures 

were begun. The responses show that allegations of misconduct that occurred within the districts 

are very small in number. The table below shows the median and range for complaints received in 

1996 and complaints on which formal action was taken in 1996. Most of the districts reported that 

notices from state disciplinary authorities of disciplinary action already taken and sent to the federal 

district court for imposition of reciprocal discipline comprise the overwhelming majority of their 

disciplinary matters. 

Table 8 

Frequency of Attorney Misconduct Complaints in the Federal Districts for Calendar 1996 

Median Ran~e 

Number of Complaints 7.5 0 - 32 

Received in 1996: 

Number of Complaints 7 0 - 32 

Formal Action was Taken 

on in 1996: 

Table A-18 in the Appendix shows the frequency of complaints for calendar year 1996 in 

each of the federal districts responding to the inquiry. 

27 
Appendices 

Table A-1: Rules Governing Attorney Conduct in the Federal District Courts 

Table A-2: Components of Model Rule 4(B) in State-Based Local 

Rules Governing Attorney Conduct in Federal District Courts 

Table A-3: Components of Model Rule 4(B) in Model Rule-Based Local 

Rules Governing Attorney Conduct in Federal District Courts 

Table A-4: Components of Model Rule 4(B) in Combination Model Rule 

and State-Based Local Rules Governing Attorney Conduct in 

Federal District Courts 

Table A-5: Reported Changes in Source of Attorney Conduct Standards Adopted 

in the Federal District Courts 

Table A-6: Federal District Courts Reporting Problems Caused by 

Ambiguous Language in their Attorney Conduct Rules 

Table A-7: Federal District Courts Reporting Problems Resulting From 

Use of External Standards Not Explicit in the Districts' 

Attorney Conduct Rules 

Page363 

Table A-8: Federal District Courts Reporting Complaints of Lack of Due Process and 

Vagueness Resulting From Their Attorney Conduct Rules 

Table A-9: Federal District Courts Reporting Multiiforum Problems Resulting 

From TheirAttorney Conduct Rules 

Table A-10: Federal District Courts Reporting Problems with Federal 

Agencies Promulgating Their Own Attorney Conduct Rules 

Table A-11: Problems Experienced by the Federal Districts Due to 

Specific Ethical Standards 

Table A-12: National Uniformity of Standards Governing the Professional 

Conduct of Attorneys in the Federal District Courts 

Table A-13: Selective Uniformity of Standards Governing the Professional 

Conduct of Attorneys in the Federal District Courts 

Table A-14: Attorney Discipline Rules in the Federal District Courts 

Table A-15: Group l Districts: Approaches Reportedly Used to Address 

Complaints of Attorney Misconduct in the Federal District Courts 

Table A-16: Group 2 Districts: Approaches Reportedly Used to Address 

Complaints of Attorney Misconduct in the Federal District Courts 

Table A-17: Group 3 Districts: Approaches Reportedly Used to Address 

Complaints of Attorney Misconduct in the Federal District Courts 

Table A-18: Frequency of Attorney Misconduct Complaints in the 

Federal District Courts for Calendar Year 1996 

28 

Circuit District 

01 D.Me. 

01 D. Mass. 

01 D.N.H. 

01 D. R.l. 

01 D.P.R. 

02 D.Conn. 

02 N.D.N.Y. 

02 E.D.N.Y. 

02 S.D.N.Y. 

02 W.D.N.Y. 

02 D. Vt. 

03 D. Del. 

03 D.N.J. 

03 E.D.Pa. 

03 M.D.Pa. 

03 W.D. Pa. 

03 D. V.l. 

04 D.Md. 

04 E.D.N.C. . 04 M.D.N.C. 

04 W.D.N.C. 

04 D.S.C. 

04 E.D. Va. 

04 W.D. Va. 

04 N.D. W.Va. 

04 S.D. W.Va. 

05 E.D.La. 

05 M.D.La. 

05 W.D. La. 

05 N.D. Miss. 

05 S.D.Miss. 

05 E.D. Tex. 

05 N.D. Tex. 

05 S.D. Tex. 

05 W.D. Tex. 

= E.D.Ky. 

06 W.D.Ky. 

06 E.D. Mich. 

06 W.D. Mich. 

06 N.D. Ohio 

06 S.D.Ohio 

Table A-1 

Rules Governing Attorney Conduct 

in the Federal District Courts 

Page 365 

Local Rule Approach Adopted by Local Rule 

Regulating Attorney Conduct1 

State-based Model Rule-based Combinalioo 

State and 

Model Rule-based 

Local Rule 83.3 X 

Local Rule 83.6(4) X 

Loca.i Rule 83.5 X 

(DR-1 and DR-5) 

Local Rule 4(d) X 

Local Rule 21 l.4(b) X 

(renumbered as Rule 83.5 but effective 

date unknown at oresent) 

Local Civil Rule 3(a) X 

Local Rule 83.4(1} X 

1 .nc-.:i1 Civtl Rule l.5(b)(5) X 

Locru Civil Rule l.5(b)(5) X 

Local Civil Rule 83.3( c) X 

Local Civil Rule 83.2(d)(4) X 

Local Rule 83.6(d) X 

Local Civil Rules 103.l(a) & 104.l(d) X 

Local Civil Rule 83.6, Rule IV X 

Local Rule 83.23 & Appendix D: Code X 

of Professional conduct 

Local Civil Rule 83.t>. t X 

Local Civil Rules 83.2(a)(l) & (bX4) X 

Local Rule 704 X 

Local Rule 2.10 X 

Local Rule 505 X 

General LOCaI Rule 1 & Guidelines for X 

Resolvin~ SchedulinJ? Conflicts Order 

1 .nr.::11 Rule ~3.1.09 X 

Local Rwe 83. l & Appenau B: F~eldl 

Rules. of Disciplinary Enforcement. Rule 

X 

lV 

Local Rules for W.D. Va., Federal X 

Rules of Disciplinary Enforcement,. 

Disciplinarv Rule 4 

Local Rule of General Practice 3.01 X 

Local Rule of General Practice 3.0 I X 

Local Rule 83.2.4E X 

Local Rule 20.04M X 

Local Rule 20.04W X 

Local Rule 21 X 

Local Rule 21 X 

Local Rule AT-2(a) X 

Local Rule 83.8(e), Local Criminal Rule X 

57.8(e). 

Local Rule l(L) & A ndi.x A, Rule l X 

Local Rule AT-4 & Appendix M: Texas 

Lawver Creed 

X 

LOCaJ. Rme 83.3( c ) & Local t.:runinal X 

Rule 57.3( c) 

Local Rule 83.3( c) & Local Criminal X 

Rule 57.3( c) 

Local Rule 83.22(d) & Civility Plan X 

(includes Civility Principles based on the 

7"' Circuit model) 

Local Rules 17 & 2l(a) X 

Local Civu Rule 83.5(b) & Local X 

Criminal Rule 57.S(b) 

Local Rule 83.4(f) referencing 

Appendix of Court Orders, Order 81-1, 

X 

Rule IV 

1 Tbe identification and categorization of each district's local rule is based upon the published local rule in effect on April 28, 1997. 

29 
Page366 

Circuit District Local Rule 

Regulating Attorney Condu~t1 Approach Adopted by Local Rule 

State-based Model Rule-based Combination 

State and 

Model Rule-based 

06 E.D. Tenn. Local Rules 83.6 & 83.7 X 

06 M.D. Tenn. Local Rule l(e)(4) X 

06 W.D. Tenn. Local Rule 83.l{e) & Guidelines for X 

Professional Responsibility and Courtesy 

and Conduct of Memphis Bar 

Association adopted by the W.D. Tenn. 

(on file with clerk) 

07 C.D. Ill. Local Rule 83.6(D) X 

07 N.D. Ill.' Local General Rule 3.52 incorporating 

Rules of Professional Conduct for the 

N.D. Ill., General Order of 10/29/91 

with respect to adoption of the N.D. Ill. 

Rules & Seventh Circuit Standards of 

Professional Conduct 

07 S.D. !ff. Local Rule 29(,f) X 

07 N.D. lod. Local Rule 83.S(f) & Seventh Circmt X 

Standards of Professional Conduct 

07 S.D. lnd. Local Rule 83.S(f}, Rule IV of Rules of X 

Disciplinary Enforcement & Seventh 

Circuit Standards of Professional 

Conduct 

07 E.D.Wis. Local Rule 2.0S(a) X 

07 W.D.Wis. no local rule 

08 E.D. Ark. Local Rules for E. & W.D. Ark., X 

Appendix: Model Federal Rules of 

Disciolin<>rv Enforcement, Rule IV 

08 W.D. Ark. Local Rules for E. & W.D. Ark., X 

Appendix: Model Federal Rules of 

Discinlin"'""" Enforcement, Rule IV 

08 N.D. Iowa no Toe.al rule 

08 S.D. Iowa no loc::il rule 

08 D.Minn. Rule 83.6(d) X 

08 E.D.Mo. Local Rule 12.02 & Rules Of X 

Discinlinn~, Enforcement, Rule IV 

08 W.D.Mo. Local Rule 83.6 X 

08 D. Neb. Local Rule 83.5(d) X 

08 D.N.D. no local rule 

08 D.S.D. no local rule 

09 D. Alaska Local Rule 83.l(h) X 

09 D. Ariz. Local Rule l.6(d) & Standards for X 

Professional Conduct adopted by D. 

Ariz. · m c.o.r .. 1. Local civil Rule 2:5 X 

09 E.D.Cal. Loe General Rule l80{e) X 

09 N.D. Loe Civil Rule 11-l(a) X 

09 S.D."'·1. . Loe Rule 83.Si X 

09 D. Haw. •= Rule ll•LJ X 

09 D. Id.;.;o LoCal Rule 83.S(a) X 

09 D. Mont. Local Gene Rule l l0-3(a) X 

09 n. Nev. Loe•' Rule IA 1Q..7(a) X 

09 D. ui. I nr<>1 Civil Rule 110-3 X 

09 E.D.-W3Sh. 1 ncal Rule 8D(a)(2) X 

09 W.D. v.ash. Local Gene Rule 2(e) X 

09 n. r.uam LocJ:1I Gener::il Rule 22.3(b) X 

.09 D. N.M.l. Local Rule 1.5 X 

lO D.Colo. Local Rule 83]1 X 

lO D. Kan. Loc:il Rule 83.h. I X 

lO D.N.M. Local Rule 83.9 X 

lO E.D. 111r1a. Local Rule 83.3K X 

lO N.D. Okla. Local Rule 83.2 X 

lO W.D. Clkla. Loc:il Rule 83.fi(h) X 

lO D.U Local Rule l03-l(h) X 

10 D. Wvo. Local Rule 83.12.7 X 

II M.D. Ala. Local Rule l(a)(4) X 

(renumbered and amended to Local 

Rule 83.l(f) but no effective date 

1 The approach adopted by the N.D. Ill. 's local rule does not fit into any of the three approaches in the table because the N.D. Ill. has adopted a standard of conduct unique to their district which does not follow state standards nor any ABA Model. 

30 
Page 367 

Circuit District Local Rule Apprnach Adopted by Local Rule 

Regulating Attorney Conduct1 

State-based Model Rule-based Combination 

State and 

Model Rule-based 

known at oresent} 

11 N.D. Ala. Local Civil Rule 83.1(0 X 

II S.D.Ala. Local Rule l(A)(4) X 

(renumbered and amended to Local 

Rule 83.5(0; effective 6/1/97) 

II M.D.Fla. Local Rule 2.04{ c ) X 

II N.D.Fla Lol.41 Geneuu Rule 11.l(G)(l) & X 

Addendum: Customacy and Traditional 

Conduct and Decorum in the US District 

Cuurt 

II S.D.Fla. Loew. Generai Rule 11.1( C) & Rules X 

Governing Attorney Discipline, Rule IV 

II M.D.Ga. Local Rule 13. l X 

II N.D.Ga. Local Rule 83.lC X 

II S.D.Ga. Local Rule 83.S(a) X 

DC D.D.C. Local Rule 706 X 

31 

Circuit District 

01 D.Me. 

01 D. Mass. 

01 D.N.H. 

01 D. R.l. 

02 D.Conn. · 

02 E.D. 

N.Y. 

02 S.D. 

N.Y. 

02 W.D. 

N.Y. 

02 D. Vt. 

03 D.N.J. 

03 E.D. Pa. 

03 M.D.Pa. 

Page 369 

Table A-2 

Components of Model Rule 4(B) 

in State-Based Local Rules Governing Attorney Conduct 

in Federal District Courts 

Components or Model Rule 4(B) Exceptions to Adopted Other Important Provisions 

Rules 

Subject Misconduct Amendments Exceptions 

to Warranting to lo 

Standards Disdoline Standards Standards 

ves ves ves no ves ves ves yes 

ves ves yes no yes no no no yes no no yes D. Conn. adopted Rules of D. Conn. adopted Rules of 

Professional Conduct of Professional Conduct of 

Conn. Superior Court as in Conn. Superior Court as in 

effect on I 0/1/86 except effect on 10/1/86 and only 

for Rules 3.6 (ethical those subsequent changes 

standards governing expressly adopted by order 

public statements by of the District's judges. The 

counsel in a criminal interpretation of Rules of 

case) & 3.7(b) (ethical Professional Conduct of 

standards governing Conn. Superior Court by any 

participation as counsel in authority other than the U.S. 

a case where either the Supreme Court., the Second 

attorney or another Circuit Court of Appeals and 

attorney in h.is or her finn the D. Conn. shall not be 

may be a witness for both binding on disciplinary 

civil and criminal cases). proceedings initiated in the 

D.Conn. 

yes yes yes no E.D. N.Y. adopted N.Y. State 

Lawyer's Code of 

Professional Responsibility as 

interpreted and applied by 

the U.S. Supreme Court, the 

Second Circuit Court of 

A ...... eals, and the E.D. N.Y. 

yes yes yes no S.D. N.Y. adopted N.Y. State 

Lawyer's Code of 

Professional Responsibility as 

interpreted and applied by 

the U.S. Supreme Court, the 

Second Circuit Court of 

A;..neals, and the S.D. N. Y. 

no no no no 

yes ves ves yes 

yes yes yes no D.N.J. adopted ABA 

Rules of Professional 

Conduct as revised by N.J. 

Supreme Court, subject to 

such modifications as may 

be required or permitted 

by federal statute, 

regulation, court rule or 

decision of law. 

yes yes yes yes E.D. Pa. adopted Rules of 

Professional Conduct 

adopted by Pa. Supreme 

Court, except that prior 

court approval as. a 

condition to issuance of a 

subpoena addressed to an 

attorney in any criminal 

proceeding, including a 

grand jury, shall not be 

reauired. 

yes yes yes yes M.D. Pa. adopted Rules of 

Professional Conduct 

adopted by Pa. Supreme 

Court, except Rule 3.10 

{prior court approval as a 

condition to issuance of a 

32 
Page370 

Circuit District Components of Model Rule 4{B) Exceptions to Adopted Other Important Provisions · 

Rules 

Subject Misconduct Amendments Exceptions 

to Warranting to to 

Standards Discipline Standards Standards 

subpoena addressed to an 

attorney in any criminal 

proceeding, including a 

grand jury, shall not be 

required.) 

03 WD.Pa. yes yes yes yes W.D. Pa. adopted Rules of 

Professional Conduct 

adopted by Pa Supreme 

Court. except Rule 3.10 

(prior court approval as a 

condition to issuance of a 

subpoena addressed to an 

attorney in any criminal 

proceeding, including a 

grand jury, shall not be 

required). 

04 D.Md. no no no no 

04 E.D. no no yes yes 

N.C. 

04 M.D. yes yes yes yes 

N.C. 

04 D.S.C. no no ves ves 

04 E.D. Va yes yes yes yes E.D. Va. adopted Va. 

Code of Profossional 

Responsibility, except. 

contrary to Va practice, 

prior court approval as 

condition to issuance of 

subpoena addressed to an 

attorney in any criminal 

proceeding, including ·a 

grand jury, shall not be 

reouired. 

04 W.D. yes yes yes yes 

Va. 

05 E.D.La. no no ves ves 

05 M.D. La. no no no yes M.D. La. adopted Rules of 

Professional Conduct of La. 

State Bar Association in 

effect on 5/15/89; general 

court order is required for 

adoption of subsequently 

promulgated, or other rules 

of orofessional conduct. 

05 W.D. no 

La. no yes yes 

05 N.D. yes yes no no 

Miss. 

05 S.D. yes yes no no 

Miss. 

05 ·E.D. yes yes 

Tex. 

no yes E.D. Tex. adopted standards 

of professional conduct of 

State Bar of Tex. as well as 

requires familiarization with 

Tex. Disciplinary Rules of 

Professional Condo.ct. c.Qlu::t 

decisions, statutes; and 

usages, customs, and 

practices of Bar ofE.D. Tex. 

05 N.D. no yes no no 

Tex. 

05 S.D. yes yes no yes . Tex. 

06 E.D.Kv. ves ves no no 

06 W.D. yes yes no no 

Kv. 

06 E.D. yes yes yes no 

Mich. 

U<> W.D. yes yes no yes 

Mich. 

06 N.D. ves no no ves N.D. Ohio adooted ethical 

33 

'•-=------·- --~---CC 

Page372 

Circuit District Components of Model Rule 4(8) Exceptions to Adopted Other Important Provisions 

Rules 

Subject Misconduct Amendments ·Exceptions 

lo Warranting lo lo 

Standards Disdo1ine Standards Standards 

(l) Rule 1.6 of Haw. 

Rules of Professional 

Conduct. In lieu thereof, 

ABA Model Rule 1.6 

Confidentiality of 

Information shall apply; 

(2) Rule 8.4 of Haw. 

Rules of Professional 

Conduct In lieu thereof, 

ABA Model Rule 8.4 

Misconduct shall an11lv. 

09 D. ldaho yes yes no no D. Idaho. adopted standards 

of professional conduct 

required of members of 

Idaho State Bar and decisions 

of any court applicable 

thereto. 

09 D.Nev. ves ves ves ves 

09 D.Or. •es ves no no 

09 E.D. yes 

Wash. 

no yes no 

09 W.D. yes 

Wash. 

no yes yes 

IO D.Colo. no .no no no 

IO D. Kan. no no ves ves 

IO D.N.M. no no no ves 

. IO E.D . yes no yes no Okla. 

IO N.D. yes yes no no N.D. Okla. adopted Okla. 

Okla. Rules of Professional 

Conduct, any interpretive 

decisions, applicable statutes; 

and the usages, customs, and 

oractices of the Bar of Okla. 

IO W.D. no no yes no Okla. 

IO D.Utah yes no yes yes D. Utah adopted the Utah 

Rules of Professional 

Conduct. as revised and 

amended and interpreted by 

the D. Utah. 

IO D.Wvo. ves ves ves ves 

ll M.D. yes no no no Aa_ 

I! N.D. Fla. yes no no yes N.D. Aa adopted Rules of 

Professional Conduct 

regulating Fla. Bar. except 

where an act of Congress. 

federal rule of procedure. 

Judicial Conference 

Resolution or rule of court 

nrovides otherwise. 

ll N.D. Ga. yes no no yes N.D. Ga. Adopted rules and 

regulations of State Bar of 

Ga and decisions of N.D. Ga. 

interpreting those rules ~4 

standards. -

DC DD.C. ves ves no ves 

35 
r 

Circuit District 

01 D.P.R. 

02 N.D. 

N.Y. 

03 D.Del. 

03 D. V.l. 

06 M.D. 

Tenn. 

09 D.Mont. 

09 D. 

N.M.l. 

II S.D.Ga. 

Page 373 

Table A-3 

Components of Model Rule 4(B) 

in Model Rule-Based Local Rules Governing Attorney Conduct 

in Federal District Courts, 

Components of Model Rule 4(B) Exceptions to Adopted Other lmportap.t 

Rules Provisions 

Subject Misconduct Amendments Exceptions 

to Warranting to to 

Standards Discipline Standards Standards 

ves ves no no 

no no no no 

yes yes no yes D. Del. adopted the ABA 

Rules of Professional 

Conduct, subject to such 

modifications as may be 

required or pennitted by 

Federal statute, court rule or 

decision of law. 

yes yes no yes D. V .I. Adopted the ABA 

Rules of Professional 

Conduct, subject to such 

modifications as may be 

required or permitted by 

Federal statute, court rule or 

decision of law. 

yes yes no no 

ves ves no no 

yes no yes no 

ves ves no no 

36 

Circuit Di.strict 

04 W.D.N.C. 

04 N.D. W. 

Va 

04 S.D. W.Va. 

05 W.D. Tex. 

09 E.D. Cal. 

09 S.D. Cal. 

09 D.Guam 

1l M.D.Ala. 

1l N.D. Ala. 

1l S.D. Aia. 

1l S.D. fla. 

1l M.D.Ga. 

Page 375 

Table A-4 

Components of Model Rule 4(B) 

in Combination Model Rule and State-Based Local Rules 

Governing Attorney Conduct 

in Federal District Courts 

Components of Model Rule 4(8) Exceptions to Adopted Other Important 

Rules Provisions 

Subject Misconduct Amendments Exceptions 

lo Warranting to lo 

Standards Discipline Standards Standards 

ves no no no 

yes yes no no 

ves ves no no 

yes yes no no W .D. Tex. adopted ABA 

Code of Professional 

Responsibility and standards 

o f professional conduct 

required by Tex. State Bar 

contained in Tex. 

Disciplinary Rules of 

Professional Conduct and 

the decisions of any court 

annlicable thereto. 

yes yes no no E.D. Cal. adopted ABA 

Model Code of Professional 

Responsibility and State Bar 

of Cal. Rules of Professional 

Conduct, and decisions of 

any court applicable 

thereto. 

yes yes no no S.D. Cal. adopted ABA 

Model Code of Professional 

Responsibility and standards 

of professional conduct 

required of State Bar of 

Cal., and decisions of any 

court a~~ticable thereto. 

yes yes yes no D. Guam adopted standards 

of professional conduct 

,:equired by members of the 

state bar of Guam and ABA 

Model Rules as adopted on 

8/11169, and as hereinafter 

amended or judicially 

construed. 

ves ves no no yes yes no yes N.D. Ala. Adopted Ala. 

Rules of Professional 

Conduct, and to extent not 

inconsistent, ABA Model 

Rules, except Rule 3.8(f) 

(prosecutor's duty not to 

subpoena attorney in a 

criminal proceeding to 

present evidence about past 

or oresent client.) 

ves no no no 

yes ves ves ves 

yes yes yes yes 

37 

. 

Circuit District 

01 D.Me. 

02 E.&S.D. 

N.Y. 

03 D. Del. 

04 M.D.N.C. 

04 N.D. W. Va. 

OS M.D.La. 

OS N.D. Tex. 

'"' E.D. Ky. 

06 E.D. Mich. 

06 W.D. Tenn. 

07 N.D.111. 

07 C.D.111. 

08 D.N.D. 

09 E.D.Cal. 

IO D. Kan. 

IO E.D. OkJa. 

IO D.Ulah 

Table A-5 

Reported Changes in Source of 

Attorney Conduct Standards Adopted 

in the Federal District Courts 

Reported Change in Standards: 

Page 377 

From ABA Code of Pcofessional Responsibility (10/tn7) to Code of Professional Responsibility adopted by the 

Supreme Judicial Court of Maine (6/1/81). 

From ABA Code of Professional Responsibility and the N.Y. Bar Associat.J.on Coae of Professional 

Resnonsibilitv to N.Y. State La"'"er's Code of Professional Responsibility (4/15/97). 

From Rules of Professional Conduct of Del. (1987) to ABA Model Rules. 

Fro_m ABA Canons of Professional Ethics and Canons of Ethics of the N.C. State Bar (1972) to Code of 

Professional Resnonsibilitv of the N.C. Sunreme Court (1985). 

From code as promulgated by W. Va. Supreme Court to ABA Rules of Professional Conduct, Model Federal 

Rules of Disciplinary Enforcement as adopted by the N.D. W. Va .• and the rules of professional conduct as adooted bv the W. Va. Sunreme Court of A---als (3/1/96). 

From current ABA Canons of Professtonal Ethics to the Rules of the La. State Bar Association (1989). 

From standards of highest court m which district sits (l2fl8) to no provision regarding applicable ethical 

standards (1987) to standards of professional conduct of attorneys authorized to practice law in the state of 

Tex. (1993). 

From no clearly adopted standard of conduct to Code or Conduct established by Kv. Suoreme Court. 

- From ABA Model Rules of Professional Responsibility ( 1981) to Rules ot Professional Conduct adopted by the 

Mich. Suoreme Court. 

From ABA Code of Professional Responsibility to standards promulgated by the Tenn. Supreme Court and 

Memohis Bar Association (1/1/94). 

From ABA Model Code of Professional Responsibility to Rules of Professional Conduct for the Northern 

District of Illinois (10n9/9 l ). 

From Code of Professional Responsibility as adopted by the lllino1s Supreme Court (1980-1987) to no standards 

governing attorney conduct (1987-1989) to Rules of Professional Responsibility of Illinois Supreme Court 

(1989). 

From N.D. Rules of Professional Conduct to no soecific standards 2ovemin2 attomev conduct. 

From Rules of Professional Conduct of State Bar of Cal. to Rules of Professional Conduct of State Bar of Cal. 

and the ABA Model Code of Professional Resnonsibility in absence of a Cal. standard. 

From no soecific standards (1985) lO Code adooted by Kan. Supreme Court (10/1/95). 

From ABA Code of Professional Conduct to Code of Professional Conduct of the Okla. Bar Association 

(10/1/96). 

From Utah. Code of Professional Responsibility and Code of Professional Responsibility approved by the 

Judicial Conference of the U.S. (1980) to Utah. Rules of Professional Conduct and ABA Model Rules (1990) to 

Utah Rules of Professional Conduct (1991). 

38 

r 

Circuit District 

02 E.D.N.Y. • 

04 E.D.N.C. . 05 M.D. La. • 

05 S.D. Tex. . 06 E.D. • 

Mich. • 

• 

06 N.D. Ohio • 

• 

. 08 E.D. Ark. • 

08 E.D.Mo. . 

. 08 W.D.Mo. • 

• 

. 09 D. Mont. • 

10 D.Colo. • 

• 

10 D.N.M. • 

. 

. 10 D. Utah • 

. 

Table A-6 

Federal District Courts Reporting Problems 

Caused by Ambiguous Language 

in their Attorney Conduct Rules 

Problems Reported as Resulting In 

ConOicts Between , or Confusion Over, 

Applicable Standards of Conduct 

for Attorneys Practicing Within the District: 

The rule prescribes multiple standards of conduct without. indicating which controls. 

Other: Pre-April 4, 1997 rules had an outdated reference to state bar ethical standards. 

Page 379 

Other. M.D. La refuses to adopt state rule on grand jury subpoenas tci lawyers (although this exception is not 

made explicit is the local rule). 

Other: S.D. Tex. is uncertain how to handle attorneys suspended or disbarred by the state, but have appeals 

nending concerning their discipline. 

The rule adopts the standards of the highest state court but does not specify what those standards are. 

The rule adopts the standards of the highest state court but does not indicate the force of state interpretations 

before and after the date of the local rule. 

The rule adopts the standards of the highest state court but does not specify whether those standards include 

amendments to the rules adooted bv the state court after the date of the local rule. 

The rule adopts the standards of the highest state court but does not spec1ty what those standards are. 

The rule adopts the standards of the highest state court but does not indicate the force of state interpretations 

before and after the date of the local rule. 

The rule adopts the standards of the highest state court but does not specify whether those standards include 

amendments to the rules adooted bv the state court after the date of the local rule. 

Other: "Shall rerer" in our local rule sounds mandatory when it clearly should be discretionarv. 

The rule adopts the standards of the highest state court but does not specify what those standards are 

Other. Attorneys not admitted in Mo .• but admitted in E.D. Mo., are subject to Mo. Standards of conduct, even 

for conduct occurring outside the district. 

The rule adopts the standards of the highest state court but does not specuy what those standards are. 

The rule adopts the standards of the highest state court but does not indicate the force of state interpretations 

before and·after the date of the local rule. 

Other. Ambiguities exist in the lan1Tnage that sets forth the district's disciplinarv procedures . 

Other: Our rule adopts ABA Model Rules ot Professional Conduct, but references the ABA Canons of 

Professional Ethics. 

The rule adopts the standards of the highest state court but does not specify what those standards are. 

The rule adopts the standards of the highest state court but does not indicate the force of state interpretations 

before and after the date of the local rule. 

The rule adopts the standards ot the highest state court but does not specify what those standards are. 

The rule adopts the standards of the highest state court but does not indicate the force of state interpretations 

before and after the date of the local rule. 

The rule adopts the standards of the highest state court but does not specify whether those standards include 

amendments to the rules adooted bv the state court after the date of the local rule. 

The local rule clearly adopts the Model Rules of Professional Conduct as the court's standard of conduct, but 

the local rule does not specify whether the standard adopts the exact ABA version of the Model Rules, or the 

amended version of the state in which the court sits. 

The rule prescribes multiple standards of conduct without indicating which controls . 

39 

Page 381 

Table A-7 

Federal District Courts Reporting 

Problems Resulting From Use of External Standards 

Not Explicit in the Districts' Attorney Conduct Rules 

I l 

Circuit District Situations and Problems Repor1ed as Resulting from 

Use of Standanls Not Explicit 

in the District's Attorney Conduct Rules 

02 E.D.N.Y. . Other: In the past, federal cases have referred to a federal interest in interpretmg the applicable rules of 

conduct which may result in interpretations and application .different from that of the courts or NY state. Titls 

has now been made explicit in the E.D. N.Y.'s newly amended rule which makes interpretation by federal 

courts exnlicit. 

04 E.D.N.C. • The local rule does not mention an ABA model, but your district looks to ABA models to "interpret" local rules 

and resolve ambiguities, even though your district has not expressly "incorporated" ABA models into its local 

rules. 

04 D.S.C. • The local rule does not mention an ABA model, but your district looks to ABA models to "interpret" local rules 

and resolve ambiguities. even though your district has not expressly .. incorporated" ABA models into its local 

rules. 

05 N.D. Tex. • Other. N.D. Tex.'s local rules define "ethical behavior" as conduct "that violates any code, rule, or standard 

of professional conduct or responsibility governing the conduct of attorneys authorized to practice Jaw in the 

state of Tex." These codes, rules, or standards are external standards that a.re not explicitly set out in the rules 

themselves. In addition. standards adopted in Dondi Properties Corp. v. Commerce Savs. & Loan Ass'n, 121 

F.R.D. 284 (N.D. Tex. 1988)(en bane) govern conduct of attorneys in ND. Tex. in civil cases 

06 W.D.Ky. . Other: W.D. Ky .. refers to Ky Supreme Court Rules governing Ky. lawvers. 

10 D.Colo. • Other: D. Colo. felt that an example of utilization of external standards not explicit m their local rule was the 

presumption that disciplinary action of Colo. Supreme Court is appropriate with imposition of identical sanction . in D. Colo. as result . 

10 D. Utah . Other. D.· Utah lists as example the fact that their local rule does not mention circuit case decisions. 

r I 

I 

' 

Circuit District 

04 D.S.C. • 

05 S.D. Tx . 06 W.D. Mich. • 

08 W.D.Mo. . IO D.Colo. . IO D.N.M.· . 

Table A-8 

Federal District Courts Reporting Complaints of 

Lack of Due Process and Vagueness 

Resulting From Their Attorney Conduct Rules 

Brier description of nature and extent of 

due process and vagueness complaints reported by the district. 

Page 383 

There is no provision for an attorney to receive and respond to the report and recommendation of a hearing 

iudl!e. 

There is no consensus on whether to allow an attorney whose state suspension is on appeal to continue to 

oractice in federal court. 

W.D. Mich. has received some complaints concerning lack of express process·in rules regarding attorney 

discipline and reinstatement after discipline. 

Confusion exists over when, 1f at all, an attorney is entitled to a heanng on misconduct allegations or a 

hearinv for reinstatement. 

Questions surround our practice of imposing simultaneous and identical sanction as those imposed by Colo. 

Supreme Court. 

D. N.M. feels that although its local rule is flexible, it is overly broad and vague and allows court to do 

whatever ic feels is appropriate. 

r 

I 

I 

Circuit District 

04 D.S.C. 

05 S.D. Tex. 

06 W.D. Mich. 

08 E.D.Mo. 

08 W.D.Mo. 

10 D.Colo. 

10 D. Utah 

Table A-9 

Federal District Courts Reporting Multiforum Problems 

Resulting From Their Attorney Conduct Rules 

Brief Description of Nature and Extent of 

Reported Attorney Conduct Problems Involving Multiple Venues 

Page 385 

• Although D. S.C. has generally deferred to the stale disciplinary process, mcons1slenc1es in the result in that 

venue has resulted in the district conducting its own disciplinarv proceedinl?s in several matters. 

•Many of the Judges in the S.D. Tex. consider some state disciplinary action to be too harsh. 

•Although it has not arisen ma concrete manner m the W.D. Mich., the US Attorney has questioned whether . 

stale ethical rules 2ovemim:,: orosecutors can be aoolied to him and his assistants. 

•E.D. Mo. has experienced conflict between state and federal standards regarding the effect of •·any felony" . 

conviction as grounds for disbarment. 

•Some conflict has arisen because the state court's application of standards 1s different than application that 

the W.D. Mo. would make for the same conduct. 

•There have been cases in which the D. Colo. disagreed with the sanction 1mnosed by the state coun. 

•Differences between tedera1 and state standards have caused some oroblems. 

Page 387 

Table A-10 

Federal District Courts Reporting Problems 

With Federal Agencies Promulgating Their Own Attorney Conduct Rules 

Circuit District Brief description of the nature and extent 

of the reported problem. 

01 D.N.H. •Although DOJ has claimed that its attorneys are not subject to the local disciplinary rules, the D. N.H. has 

informed the DOJ that its attorneys are subject to the rules of lhe D. N.H. 

02 E.D.N.Y. •The DOJ has taken a position with regard to the abihty of prosecutors to speak to represented persons that is 

in conflict with local state court intemretations of the NY State Code. 

04 D.S.C. • DOJ policies on contact with represented persons have been in conflict with the SC Rules of Professional 

Conduct which are incoroorated into local rules of D. S.C. 

06 E.D. Ky. •E.D. Ky. experienced a problem with ethical jurisdiction over out of state attorneys thus the district is revi~iril( 

our rule to require pro hac vice attorneys to submit themselves to jurisdiction of E.D. Ky. However. we-ate 

uncertain over whether this will help alleviate nroblems with DOJ auomevs. 

07 N.D.111. •DOJ does not view its attorneys to be bound bv N.D. Ill. Rule 4.2 which corresllonds to ABA Model Rule 4.2. 

08 W.D.·Mo. • Potential problems with DOJ standards on contact with represented persons has been discussed, although no 

actual cases have arisen. 

10 N.D. Okla. •DOJ has objected to Okla. rules regarding the subpoena of a lawyer to present evidence about a client and 

regarding presentation of adverse facts in ex parte proceedings, and has recommended that N.D. Okla. except 

these rules from the adootion of the OK. Rules of Professional Conduct. 

10 D. Utah •We have exoerienced problems with the SEC and the Patent and Trademark Office. 

Circuit District 

01 D.P.R. 

02 E.D.N.Y. 

02 S.D.N.Y. 

03. D.NJ. 

03 D. V.l. 

04 D.S.C. 

06 E.D.Ky. 

06 W.D. Mich. 

06 S.D. Ohio 

07 N.D. 111. 

Table A-11 

Problems Experienced by the Federal Districts 

Due to Specific Ethical Standards 

Indicate Manner in Which Each Category of Ethics Standards 

Created a Problem in at Least One Specific Instance 

Page 389 

and Frequency with which These Problems Were Experienced Within the Past 2 Years: 

Communication with Candor Towards the Conflict of 

Confidentialitv Renresented Parties Lawvers as Witnesses Tribunal Interest 

•not speaking to •not speaking to • not speaking to •not speaking to •not speaking to alleged unethical alleged unethical alleged unethical alleged unethical alleged uuethical 

conduct conduct conduct conduct conduct 

•being unclear •being unclear • being unclear •being unclear •being unclear 

•(ona) •(once) •(once) •(once) •(2 to 5 times) 

•being inconsistent 

with other standards 

of conduct 

•( once) 

•being too broad 

•(no problems 

within nast 2 vears) 

•Other: There are 

conflicting 

decisions about 

propriety of one 

party conducting ex 

parte interviews 

with former 

employees of an 

adverse party. 

•(5 to JO times) 

•being unclear 

•(frequency not 

nrovided) 

• being inconsistent 

with other standards 

of conduct 

•(frequency not vrovided) · 

•Other: Out of state 

DOI Attorneys not 

subject to Ky. Bar 

ethics jurisdiction. 

•(no problems within 

past 2 vears) 

•Other: Although 

1 . conflict between 

state and DOI 

interpretations of 

rule regarding 

federal prosecutors 

speaking to 

witnesses 

considered 

"represented 

parties" has arisen, 

W.D. Mich. hasn't 

had to deal with the 

issue formally 

either by 

rulemaking or in a 

particular case. o(once) 

onot speaking to 

alleged unethical 

conduct 

o(once) 

•being inconsistent 

with other standards 

of conduct 

•(no problems 

within nasr 2 'tlears) 

42 
Page 390 

Circuit District Indicate Manner in Which Each Catego(J' of Ethics Standards 

Created a Problem in at Least One Specific Instance 

and Frequency with which These Problems Were Experienced Within the Past 2 Years: 

Communication with Candor Towards the Conflict of 

Confidentialitv Reoresented Parties La..vvers as Witnesses Tribunal Interest 

08 E.D. Ack. •being inconsistent 

with other standards 

of conduct 

•(once) 

08 W.D.Mo. •being unclear •being too narrow 

•being too broad •( once) 

•(once) 

08 D.S.D. •bemg unclear 

•being too narrow 

•(once} 

10 D.Colo. • Not speaking to • Not speaking to • Bemg unclear 

alleged unethical alleged unethical •(frequency 

conduct conduct unknown) 

•Other: Problems •being unclear 

with Assistant US •Other: Inadequate 

Attorneys advising prep~tion and 

arrested suspects expenence. 

about sentencing •(frequency 

guidelines before unknown) 

defense counsel is 

appointed. 

•(frequency 

unknown) 

10 N.D. Okla. •Not speaking to •being inconsistent • bemg inconsistent •being mcons1stent 

alleged unethical with other standards with other standards of with other standards 

conduct of conduct conduct of conduct 

•being unclear •(no problems •(no problems within •(no problems within 

•(no problems within past 2 years) past 2 years) past 2 years) 

within past 2 

vears) 

10 D.Utah •being too broad •bemg too broad • Being too broad •Not speaking to 

•(2 to 5 times) •being inconsistent •(2 to 5 times) alleged unethical 

with other standards conduct 

of conduct •being unclear 

•Other. In conflict •being too broad 

with other court •Other. Conflict 

decisions. with decisions of 

•(10 or more times) . Supreme Court and 

Circuit Courts. 

•(10 or more times) 

II N.D.Ala. • Being too broad 

•Other: Problems as 

to when 

communications 

with 

. 

employees/former 

employees can be 

contacted or 

responded to at 

their initiative. 

•(10 or more times) 

43 
Circuit 

01 

01 

01 

01 

01 

02 

02 

02 

02 

02 

03 

03 

03 

03 

04 

04 

04 

04 

04 

04 

04 

04 

05 

05 

05 

05 

05 

05 

05 

05 

05 

06 

'"' 06 

06 

06 

06 

06 

06 

06 

07 

07 

07 

07 

07 

07 

08 

08 

08 

08 

08 

08 

08 

08 

08 

09 

09 

09 

09 

Table A-12 

National Uniformity of Standards 

Governing the Professional Conduct of Attorneys 

in the -Federal District Courts 

District YES, in support of national NO, not in support of national 

uniformity. unifonnity. 

D.Me. X 

D. Mass. X 

D.N.H. X 

D.P.R X 

D. R.l. X 

D. Conn. X 

E.D.N.Y. X 

S.D.N.Y. 

W.D.N.Y. X 

D.Vt. X 

D. N.J. X 

E.D. Pa. X 

M.D.Pa. X 

D. V.I. X 

D.Md. X 

E.D.N.C. X 

M.D.N.C. X 

W.D.N.C. X 

D.S.C. X 

E.D. Va. X 

W.D. Va. X 

N.D. W. Va. X 

E.D. La. X 

M.D.La. X 

W.D. La. X 

N.D.Mtss. X 

S.D. Miss. X 

E.D. Tex. X 

N.D. Tex. X 

S.D. Tex. X 

W.D. Tex. X 

E.D. Ky. X 

W.D. Ky. X 

E.D. Mich. X 

W.D. Mich. X 

N.D.Ohio X 

S.D.Ohio X 

E.D. Tenn. X 

M.D. Tenn. X 

W.D. Tenn. X 

C.D.111. X 

N.D.111. X 

S.D. Ill. X 

N.D. Ind. X 

S.D. Ind. X 

E.D. Wis. X 

E.D. Ark. X 

W.D. Ark. X 

N.D. Iowa X 

S.D. Iowa X 

D.Minn. X 

E.D.Mo. X 

W.D.Mo. X 

D. Neb. X 

D.S.D. X 

D. Alaska X 

E.D. Cal. X 

D. Haw. X 

D. Idaho X 

44 

Page 391 

No Opinion. 

X 

. 
Page 392 

Circuit District YES, in support or national NO, not in support of national No Opinion. 

uniformity. uniformity. 

09 D. Mont. X 

09 D.Or. X 

09 E.D. Wash. X 

09 W.D. Wash. X 

09 D. N.M.l. X 

10 D.Colo. X 

10 D. Kan. X 

10 D.N.M. X 

10 E.D. Okla. X 

10 N.D. Okla. X 

10 W.D. Okla. X 

10 D. Utah X 

10 D. Wyo. X 

ll M.D.Ala. X 

ll N.D. Ala. X 

ll S.D.Ala. X 

ll M.D.Aa. X 

ll N.D.Aa. X 

ll M.D.Ga. X 

ll S.D.Ga. X 

45 
Circuit District 

03 D.N.J. 

03 M.D.Pa. 

04 E.D.N.C. 

04 M.D.N.C. 

04 D.S.C. 

04 W.D. Va. 

05 E.D.La. 

05 M.D.La. 

05 W.D. La. 

05 E.D. Tex. 

05 W.D. Tex. 

06 E.D.Kv. 

07 S.D. Ill. 

07 S.D. Ind. 

08 N.D. Iowa 

10 D. Utah 

11 N.D. Fla 

Table A-13 

Selective Uniformity of Standards 

Governing the Professional Conduct of Attorneys 

in the Federal District Courts 

Page 393 

Indicate whether district is in favor of uniformity for each category of ethical standards: 

confidentiality communication lawyers as witnesses candor towards conflict of interest 

with represented n tribunal 

parties 

X X 

X X X 

X X X X X 

X X X X 

X X X X X 

X 

X X X X X 

X X X X X 

X X X X 

X X X X 

X X X X X 

X 

X X X 

X X X X X 

X X X X 

X X X 

X X X X X 

Circuit Distdct 

01 D.Me. 

01 D. Mass. 

01 D.N.H. 

01 D. R.I. 

01 D.P.R. 

02 D.Conn. 

02 E.D.N.Y. 

02 N.D.N.Y. 

02 S.D.N.Y. 

02 W.D.N.Y. 

02 D. Vt. 

03 D.Del.. 

03 D.NJ. 

03 E.D. Pa. 

03 M.D.Pa. 

03 W.D.Pa. 

03 D. V.1. 

04 D.Md. 

04 E.D.N.C. 

04 M.D.N.C. 

04 W.D.N.C. 

04 D.S.C. 

04 E.D. Va 

04 W.D. Va. 

04 N.D. 

W.Va. 

04 S.D. W.Va. 

05 E.D.La. 

05 M.D.La. 

05 W.D . .La. 

05 N.D.Miss. 

05 S.D. Miss. 

05 E.D. Tex. 

05 N.D. Tex. 

05 S.D. Tex. 

05 W.D. Tex. 

06 E.D. Kv. 

06 W.D.Kv. 

06 E.D. Mich. 

06 W.D. Mich. 

06 N.D. Ohio 

06 S.D. Ohio 

Table A-14 

Attorney Discipline Rules 

in the Federal District Courts 

Local Rule on Attorney Discipline 

Local Rule 83.3 

Local Rule 83.6 

Local Rule 83.5 (DR-6) 

Local Rule 4(e) 

Local Rule 211.5 

(renumbered as Local Rule 83.5; no effective date known at 

present) 

Local Rule 3(b)-(f) 

Local Rule 1.5 

Local Rule 83.4 

Local Rule 1.5 

Local Rule 83.3(a) 

Local Rule 83.2(d) 

Local Rule 83.6 

Local Civil Rule 104.1 

Local Rule 83.6 

Local Rules 83.20 to 83.31 

Local Civil Rule 83.6 

Local Rule 83.2(b) 

Local Rule 705 

Local rule 2.10 (informs that disciplinary procedures are on 

file with clerk and available on request; will be published as 

vart of local rules in 9/97.) 

Local Rules 501-513 

no local rule 

Local Rule 83.1.09 

Local Rule 83.l(L) & Appendix. B: Federal Rules of 

Discinlinary Enforcement 

Local Rules fo{ W.D. Va. Model Rules of D1sc1plinacy 

Enforcement 

no local -lllle 

Local Rule General Practice 3.01 referencing Model 

Federal Rules of Disciplinary Enforcement (available from 

clerk's office) 

Local Rule 83.2.lOE 

Local Rule 20.lOM 

no local rule 

Local Rule 1 ( c ) 

Local Rule l ( c ) 

Local Rule AT-2(d) 

Local Rule 83.8 & Local Criminal Rule 57 .8 

Local Rules for S.D. Tex .• Appendix A. Rules of Discipline, 

Rule5 

Local Rule AT-1(1) 

Local Rule 83.3 & Local Criminal Rule 57.3 

Local Rule 83.3 & Local Criminal Rule 57.3 

Local Rule 83.22(e) 

Local Rule 21 

Local Civil Rule 83.7 & Local Criminal Rule 57.7 

Local Rule 83.4{f) incomoratinv A""""ndix of Court Orders, 

Page 395 

Group 11 Group21 Group3.1 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

1 Districts V:,jth a local rule permitting ("may refer") or requiring ("shall refer") a judicial officer to refer disciplinary matters {for purposes of 

investigating allegations of misconduct, prosecuting disciplinary proceedings, formulating other appropriate recommendations .lillQill[ 

conducting a hearing at which a decision to impose discipline is made) either to bodies or person(s) outside of the federal district court {su~h as the bar of the state wherein the district is located; the disciplinary agency of the highest court of the state whereiq the attorney maintains his or 

her principal office; any disciplinary agency the court deems proper; the United States Attorney for the district) and/or to bodies or persons 

within the federal court (such as member(s) of the bar of the district court; permanent or temporary disciplinary bodies such as "grievance 

committees," "disciplinary committees or panels," "executive committees," etc.). 1 Districts with a local rule requiring a judicial officer {"sha11 refer") to refer disciplinary matters of a more serious nature {may warrant 

suspension or disbarment) exclusively to bodies or person{s) outside of the federal district court {such as the bar of the state wherein the 

district is located; the disciplinary agency of the highest court of the state wherein the attorney maintains his or her principal office; any 

disciplinary agency the court deems proper; the United States Attorney for the district). 1 Districts with a local rule permitting ("may") or requiring {"shall'') a judicial officer to handle the disciplinary matter himself or herself or 

refer the matter exclusively to bodies or person{s) within the federal district court (such as member(s) of the bar of the district court; 

permanent or temporary disciplinary bodies such as "grievance committees," "disciplinary committees or panels,'' "executive committees," 

etc.). 

47 
Page 396 

Circuit District Local Rule on Attorney Discipline Group 11 Group 21 Group 33 

Order 8lwl 

06 E.D. Tenn. Local Rule 83.7 X 

06 M.D. Tenn. Local Rule l(e) X 

06 W.D. Tenn. Local Rule 83.l(e)(l) referencing Order Adopting Rules of 

Disciolin11rv Enforcement (available from clerk's office) 

X 

07 C.D.lll. Local Rule 83.6 X 

07 N.D. Ill. Local Rules 3.50 to 3.79 X 

07 S.D.lll. Local Rule 29(e) X 

07 N.D. lnd. Local Rule 83.6 X 

07 S.D. lnd. Local Rules (or S.D. Ind., Rules of Disciplinary 

Enforcement 

X 

07 E.D. Wis. Local Rule 2.05 X 

07 W.D. Wis. no local rule X 

08 E.D. Ark. Local Rules for E. & W .D. Ark .• Appendix. Model Federal 

Rules of Disciolin:uv Enforcement 

X 

08 W.D. Ark. Local Rules for E. & W .D. Ark .• Appendix:. Model Federal 

Rules of Disciplinnrv Enforcement 

X 

08 N.D. lowa Local Rule 83.2(g) X 

08 S.D. Iowa Local Rule 83.2(2") X 

08 D.Minn. Local Rule 83.6(e) X 

08 E.D.Mo. Local Rule 12.02 referencing Rules of Disciplinary 

Enforcement (available from clerk's office} 

X 

08 W.D.Mo. local Rule 83.6 X 

08 D. Neb. Local Rule 83.5 X 

08 D.N.D. Local Rule 79.l(E) X 

08 D.S.D. Local Rule 83.2(G) X 

09 D. Alaska no local rule X 

Note: Local Rule 83.1(0 contains procedures for reciprocal 

discipline and reinstatement,. but no procedures for 

allegations of attorney misconduct before the district court 

09 D. Ariz. no local rule X 

09 C.D.Cal. Local Civil Rule 2.6 X 

09 E.D. Cal. Local General Rule 184 X 

09 N.D.Cal. Local Civil Rule 11-b X 

09 S.D.Cal. Local Rule 83.5i X 

09 D. Haw. Local Rule 110-4 X 

09 D. Idaho Local Rμle 83.5(b) X 

09 D.Mont. Local General Rules ll0-3 & 110-5 X 

09 D. Nev. Local Rule lA 10-7 X 

09 D.Or. Local Rule 110-6 X 

. 09 E.D. Wash . Local Rule 83.3(a) X 

09 W.D. Local Rule 2(e) X 

Wash. 

09 D.Guam Local General Rule 22.4 X 

09 D. N.M.I. Local Rule 1.5: Auucndix A Disciplinaiv Rules X 

IO D.Colo. Local Rules 83.5 & 83.6 X 

IO D. Kan. Local Rule 83.6 X 

IO D.N.M. Local Rule 83.2(0 & 83.10 X 

IO E.D. Okla. Local Rules 1.3 & 83.3L X 

IO N.D. Okla. _ Local Civil Rule 1.4 X 

IO W.D. Okla. Local Rule 83.6 ( c ) X 

IO D. Utah Local Rule 103-5 X 

IO D. Wyo. Local Rules 83.12.1 to 83.12.15 X 

II M.D.Ala. Local Rule 2 X 

(renumbered and amended to Local Rule 83.1; no effective 

date at present) 

II N.D. Ala. Local Rule 83.1 X 

II S.D. Ala. Local Rule 3 X 

(renumbered and amended to Local Rule 83.6; effective 

date 6/1/97) 

11 M.D.Fla Local Rule 2.04 X 

II N.D. Fla. Local General Rule 11.l(G) X 

11 S.D. Fla. Local Rules for S.D. Fla., Rules Governing Attorney X 

Discioline, Prefatory Statement 

II M.D.Ga. Local Rule l 3 X 

II N.D. Ga. Local Rule 83. lF X 

II S.D.Ga. Lo Rule 83.5 X 

DC D.D.C. Local Rule 707 X 

48 
Circuit District 

01 D.Me. 

01 D. Mass. 

01 D.N.H. 

01 D. R.l. 

02 D.Conn. 

02 D.Vt. 

03 D.NJ. 

03 E.D. Pa. 

03 M.D.-Pa. 

Table A-15. 

Group 1 Districts': Approaches Reportedly Used 

to Address Complaints of Attorney Misconduct 

in the Federal District Courts 

Indicate Approaches Indicate Approach District 

District Reported Using: Reported Using Most 

Frequently: 

•Appoint agency charged with enforcing state •Appoint agency charged with 

ethical standards to investigate and present enforcing state ethical standards to · matter to federal district court. investigate and present matter to 

federal district court. 

•Refer the matter to the group or agency . • Refer the matter to the group or- charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

•Refer to a panel or committee of judges in deems warranted. 

district. •Refer to a panel or committ~ of 

iud""es in district. 

•Refer the matter to the group or:;rency 

charged with enforcing state ethi standards 

for whatever action that agency deems 

warranted. 

• Appoint an attorney to investigate and present 

to federal district court. 

• Refer the matter to the group or agency •Refer the matter to the group or charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

•Refer to a single judge in the district. deems warranted. 

•Refer to a panel or committee of judges in •Refer to a panel or committee of 

district · judges in district. 

•Appoint jl1l attorney to investigate and present 

to federal district court. - •Refer to U.S. Attomev for investigation. 

iAppomt agency charged with eiiforcmg state •Appomt agency charged with . ethical standards to investigate and present enforcing state ethical standard~ to 

matter to federal district court. investigate and present matter to • Refer to a single iudge in the district federal district court. 

•Refer the matter to the group or agency • Reter the matter to the group or charged with enforcing state ethical standards agency charged with enforcing .. for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

•Appoint agency charged with enforcing state deems warranted. 

ethical standards to investigate and present •Appoint an attorney to investigate : matter to federal district court. and present to federal district 

•Appoint an attorney to investigate and present court. 

to federal district court. 

•Refer the matter to the group or agency • Refer the matter to the group or charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

•Refer to a single judge in the district deems warranted. 

•Appoint an attorney to investigate and present 

to federal district court. 

• Refer to a panel or committee of judges in •Refer to a panel or committee of 

district iudges in district. 

• Refer the matter to the group or ~ency •Refer the matter to the group or charged with enforcing state ethic standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agencv 

Page 397 

For Approach Reported 

As Most Frequently 

Utilized, Indicate 

Whether in a Recent 

Case District Reported . Dissatisfaction with: 

Outcome Procedure 

X X 

1 Districts with a local rule permitting ("may refer") or requiring ("shall refer'') a judicial officer to refer disciplinary matters (for purposes of 

investigating allegations of misconduct, prosecuting disciplinary proceedings, formulating other appropriate recommendations wlfil 

conducting a hearing at which a decision to impose discipline is made) either to bodies or person(s) outside of the federal district court (such as the bar of the state wherein the district is located; the disciplinary agency of the highest court of the state wherein the attorney maintains his 

or her principal office; any disciplinary agency the court deems proper; the United States Attorney for the district) and/or to bodies or persons 

within the federaJ court (such as member(s) of the bar of the district court; pennanent or temporary disciplinary bodies such !'LS ".grievance 

committees," "disciplinary committees or panels," "executive committees," etc.). 

49 
Page 398 

Ch·cuit District Indicate Approaches Indicate Approach District For Approach Reported 

District Reported Using: Reported Using Most As Most Frequently 

Frequently: Utilized, Indicate 

Whether in a Recent 

Case District Reported 

Dissatisfaction with: 

Outcome Procedure 

•Appoint an attorney to investigate and present deems warranted. 

to federal district court. 

03 W.D.Pa. 

03 D.V.1. •Appoint an attom~y to investigate and present •Appoint an attorney to investigate 

to federal district court. and present to federal district 

court. 

04 D.Md .. •_Refer the matter to the group or agency • Refer to a panel or commtttee ot 

charged with enforcing state ethical standards judges in district. 

for whatever action that agency deems 

warranted. 

• Refer to a single judge in the district 

• Refer to a panel or committee of judges in 

district. 

•Appoint an attorney to investigate and present 

to federal district court. 

04 E.D.N.C. •Appomt agency charged with enforcing state • Refer the matter to the group or 

c~cal standards to -investigate and present agency charged with enforcing 

matter to federal district court. state ethical standards for 

• Refer to a single judge in the district whatever action that agency 

• Refer to a panel or committee of judges in .deems warranted. 

district 

• Appoint an attorney to investigate and present 

to federal district court. 

•Refer to U.S. Attorney for investigation. 

04 M.D.N.C. • Refer the matter to the group or agency 

charged with enforcing state ethical standards 

• Appoint an attorney to investigate 

and present to federal district 

for whatever action that agency deems court. 

warranted. 

•Appoint an attorney to investigate and present 

to federal district court. 

04 D.S.C. • Refer the matter to the group or agency •Refer to U.S. Attorney for X 

charged with en(orcing state ethical standards investigation. 

for whatever action that agency deems 

warranted. 

•Refer to a single judge in the district 

•Refer to a panel or committee of judges in 

district ' 

•Appoint an attorney to investigate and present 

to federal district court. 

•Refer to U.S. Attornev for investh,ation. 

04 E.D.Va. •Handle another way: follow procedures in • Handle another way: follow 

local rule depe~ding on nature of discipline. procedures in local rule depending 

on nature of disciDline. 

04 W.D. Va. • Refer the matter to the group or agency • Handle another way: presiding 

charged with enforcing state ethical standards judge deals with problem. 

for whatever action that agency deems 

warranted. 

• Handle another way: presiding judge deals with 

problem. 

05 E.D. La. • Appomt an attorney to investigate and present 

to federal district court. 

•Handle another way: Referred to 

court en bane; attorney appointed 

•Refer to U.S. Attorney for investigation. to file formal complaint; judge 

•Handle another way; Referred to court en bane makes recommendation to court en 

before any discinline imnnsed. bane. 

05 S.D. Ohio •Appomt an attorney to investigate and present •Appoint an attorney to mvesttgate 

to federal district court. and present to federal district 

court. 

06 E.D. • Refer the matter to the group or agency • Refer the matter to the group or X X 

Tenn. charged with enforcing s~te ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

deems warranted. 

= M.D. • Refer the matter to the group or agency •Refer the matter to the group or X X 

Tenn. charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

• Refer to a single judge in the district deems warranted. 

• Refer to panel or committee of attorneys in 

district for investigation and presentation to 

federal district court. 

50 
Page 399 

Circuit District Indicate Approaches Indicate Approach District For Approach Reported · 

District Reported Using: Reported Using Most As Most Frequently 

Frequently: Utilized, Indicate 

Whether in a Recent 

Case District Reported 

Dissatisraction with: 

Outcome Procedure 

06 W.D. • Refer the matter to the group or agency • Refer the matter to the group or X X 

Tenn. charged wilh enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

•Appoint agency charged with enforcing state 

ethical standards to investigate and present 

deems warranted. 

matter to federal district court. 

• RC fer to a single judge in the district 

• Refer to a panel or committee of judges in 

district. 

•Appoint an attorney to investigate and present 

to federal district court: 

07 N.D.111. • Refer the matter to the group or agency. • Refer the matter to the group or 

charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

• Refer to a single judge in the district. 

•Appoint an attorney to investigate and present 

to federal district court. 

deems warranted. 

•Refer to U.S. Attomev for investh1:ation. 

07 C.D.111. •Refer to a panel or committee of judges in • Refer to a panel or committee of 

district. iud!!es in district. 

07 N.D. lnd. •Appoint an attorney to investigate and present 

to federal district court. 

•Appoint an attorney to investigate 

and present to federal district 

court. 

07 S.D. lnd. •Refer the matter to the group or agency • Refer the matter to the group or X X 

charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

•Appoint agency charged with enforcing state deems warranted. 

ethical standards ·to investigate and present 

matter to federal district court .. 

• Refer to a single judge in the district 

• Refer to U.S. Attorney for investigation. 

07 E.D. Ark. •Appoint agency charged with enforcing state •Appomt agency charged with X 

ethical standards to investigate and present enforcing state ethical standards to 

matter to federal district court. investigate and present matter to 

federal district court. 

08 W.D. • Reter the matter to the group or agency •Handle another way: Handled by 

Ark. charged with enforcing state ethical standards court as whole, through 

for whatever action that agency deems correspondence, conference calls 

warranted. and meetings. 

• Appoint agency charged with enforcing state 

ethical standards to investigate and present . 

matter to federal district court. 

• Handle another way: Handled by court as 

whole, through correspondence, conference 

calls and meetings. 

08 D.Minn. • Reter the matter to the group or agency •Reter the matter to the group or X X 

charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency .. ·. 

• Refer to a panel or committee of judges in deems warranted. 

district. •Appoint an attorney to investigate 

•Appoint an attorney to investigate and-present and present to federal district 

to federal district court. court. 

08 E.D.Mo. •Refer the matter to the group or agency 

charged with enforcing state ethical standards 

for whatever action that agency deems 

warranted. 

•Appoint agency charged with enforcing state 

ethical standards to investigate and present 

matter to federal district court. 

08 W.D.Mo. •Refer the matter to the group or agency •Appoint an attorney to investigate X X 

charged with enforcing state ethical standards and present to federal district 

for whatever action that agency deems court. 

warranted. 

• Refer to a single judge in the district 

• Refer to a panel or committee of judges in 

district. 

•Annnint an attornev to investie:ate and oresent 
Page 400 

Ch·cuit District Indicate Approaches Indicate Approach District For Approach Reported 

District Reported Using: Reported Using Most As Most Frequently 

Frequently: Utilized, Indicate 

Whether in a Recent 

Case District Reported 

Dissatisfaction with: 

Outcome Procedure 

to federal district court. 

08 D.Neb. •Refer the matter to the group or agency •Handle another way. Suspension 

charged with enforcing state ethical standards is imposed by active Article III 

for whatever action that agency deems judges as result or discipline 

warranted. imposed by Neb. Supreme Court. 

•Refer to a single judge in the district 

• Refer to a panel or committee of judges in 

district 

•Appoint _an attorney to investigate and present 

to federal district court. 

08 D.N.D. • Refer the matter to the group or agency • Refer the matter to the group or 

charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

deems warranted. 

08 D.S.D. •Refer to U.S. Attorney tor mvestigation. •Refer to U.S. Attorney for 

. investii:rntion . 

08 E.D.Cal. •Handle another way: Handled by judge before • Handle another way: Handled by 

whom matter pending. judge before whom matter giving 

rise to misconduct is ""'ndinl! .. 

09 S.D.Cal. 

09 D. Guam 

09 D.Haw. •Refer the matter to the group or agency • Refer the matter to the group or 

charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

• Refer to panel or committee of attorneys in deems warranted. 

district for investigation and presentation to 

federal district court. 

09 D. Idaho •Refer the matter to the group or agency • Refer the matter to the group or 

charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

deems warranted. 

09 D.Mont. • Refer the matter to the group or agency •Refer to U.S. Attorney for 

charged with enforcing state ethical standards investigation. 

for whatever action that agency deems 

warranted. 

•Refer to U.S. Attorney for irivestigation. 

IO D.Colo. • Refer to a panel or committee of Judges in •Refer to a panel or committee of 

district. judges in district. 

•Refer to panel or committee of attorneys in • Refer to panel or committee of 

district for investigation and presentation to attorneys in district for 

federal district court. investigation and presentation to 

federal district court. 

IO D. Kan. •Refer the matter to the group or agency • Refer the matter to the group or 

charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

• Refer to a panel or committee of judges in deems warranted. 

district. 

• Refer to panel or committee of attorneys in 

district for investigation and presentation to 

federal district court. 

10 E.D. • Refer the matter to the group or agency • Refer to panel or committee of 

Okla. charged with enforcing state ethical standards attorneys in district for 

for whatever action that agency deems investigation and presentation to 

warranted., federal district court. 

• Refer to a single judge in the district 

• Refer to panel or committee of attorneys in 

district for investigation and presentation to 

federal district court. 

IO N.D. • Refer the matter to the group or agency • Refer to panel or committee of X X 

Okla. charged with enforcing state ethical standards attorneys in district for 

for whatever action that agency deems investigation and presentation to 

warranted. federal district court. 

•Appoint agency charged with enforcing state 

ethical standards to investigate and present 

matter to federal district court. 

• Refer to nan el or committee of attorneys in 

,?. 
Page 401 

Circuit District Indicate Approaches Indicate Approach District For Approach Reported 

District Reported Using: Reported Using Most As Most Frequently 

Frequently: Utilized, Indicate 

Whether in a Recent 

Case District Reported 

Dissatisfaction with: 

Outcome Procedure 

district for investigation and presentation to 

federal district court. 

10 W.D. • Appomt agency charged with enforcing state •Appoint agency charged with 

Okla.. ethical standards to investigate and present enforcing state ethical standards to 

matter to federal district court. investigate and present matter to 

- federal district court. 

10 D.Utah • Refer to a panel or committee of judges in • Refer to a panel or committee of X X 

district. iudges in district. 

10 D. nyo. • Refer the matter to the group or agency • Refer the matter to the group or charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency • Appoint an attorney to investigate and present 

to federal district court. 

deems warranted. 

II N.D. Ala. • Refer the matter to the group or lency • Refer the matter to the group or charged with enforcing state ethic standards agency charged with enforcing 

for_ whatever action that agency deems state ethical standards for 

warranted. whatever action that agency .• Appoint agency charged with enforcing state deems warranted. 

ethical standards to investigate and present 

matter to federal district court. 

•Refer to a single judge in the district. 

•Refer to a panel or committee of judges in 

district. 

• Refer to panel or committee of attorneys in 

district for investigation and presentation to 

federal district court. 

•Refer to U.S. Attorney for investigation. 

II M.D.Aa. •Appomt agency charg~ with entorcmg state • Refer to panel or comnuttee ot 

ethical standards to investigate and present attorneys in district for 

matter to federal district court. investigation and presentation to 

•Refer to panel o_r committee of attorneys in 

district for investigation and presentation to 

federal district court. 

federal district court. 

II S.D. Fla. 

II M.D. Ga. • Refer the matter to the group or agency • Refer the matter to the group or X X 

charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency . •Refer to a single judge in the district deems warranted . •Appoint an attorney to investigate and present 

to federal district court. 

•Refer to U.S. Attorney for investigation. 

II N.D. Ga. 

DC D.D.C. 

53 

Circuit District 

05 N.D.Miss. 

05 S.D.Miss. 

06 E.D. Mich. 

Table A-16 

Group 21 Districts: Approaches Reportedly Used 

to Address Complaints of Attorney Misconduct 

in the Federal District Courts 

Indicate Approaches Indicate Approach District 

District Reported Using: Reported Using Most 

Frequently: 

• Refer to a single juage in the district. • Refer to a panel or committee of judges in •Refer to a single judge in the 

district 

district. 

• Refer the matter to the group or agency •Refer the matter to the group or charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

deems warranted. 

• Refer the matter to the group or agency • Refer the matter to the group or charged with enforcing state ethical standards agency charged with enforcing 

for whatever action that agency deems state ethical standards for 

warranted. whatever action that agency 

•Appoint agency charged with enforcing state deems warranted. 

ethical standards to investigate and present 

matter to federal district court. 

•Appoint an attorney to investigate and present 

to federal district court. 

Page 403 

For Approach 

Reported As Most 

Frequently Utilized, 

Indicate Whether in a Recent Case District 

Reported 

Dissatisfaction with: 

Outcome Procedure 

1 Districts with a local rule requiring a judicial officer ("shall refer") to refer disciplinary matters of a more serious nature (may warrant 

suspensi0n or disbarment) exclusively to bodies or person(s) outside of the federal district court (such as the bar of the state wherein the 

district is located; the disciplinary agency of the highest court of the state wherein the attorney maintains his or her principal office; any 

disciplinary agency the court deems proper: the United States Attorney for the district). 

54 

Circuit District 

. 

01 D.P.R. 

02 E.D .. N.Y. 

02 N.D.N.Y. 

02 S.D.N.Y. 

02 W.D. 

N.Y. 

03 D.Dell. 

05 M.D. La. 

05 E.D. Tex. 

05 N.D. Tex. 

05 W.D. Tex. 

05 S.D. Tex. 

Table A-17 

Group 31 Districts: Approaches Reportedly Used 

to Address Complaints of Attorney Misconduct 

in the Federal District Courts 

Indicate Approaches Indicate Approach District 

Di.strict Reported Using: Reported Using Most 

Frequently: 

• Refer to panel or comnuttee of attorneys in district • Refer to panel or committee 

for investigation and presentation to federal district of attorneys in district for 

court. investigation and presentation 

to federal district court. 

• Refer to panel or committee of Judges within district • Refer to panel or committee 

• Refer to panel or committee of attorneys in district of judges within district. 

for investigation and presentation to 'federal district • Refer to panel or committee 

court. of attorneys in district for 

• Appoint an attorney to investigate and present to investigation and presentation 

federal district court. to federal district court. 

• Appoint an attorney to 

investigate and present to 

federal district court. 

• . • Rerer to panel or committee of judges within district. • Refer to panel or committee 

•Refer to panel or committee of attorneys in district of judges within district. 

for investigation and presentation to federal district 

court. 

• Refer the matter to the group or agency charged •Refer the matter to the 

with enforcing state ethical standards for-whatever group or agency charged 

action that agency deems warranted. with enforcing state ethical 

• Refer to a single judge in the district. standards for whatever 

•Appoint an attdrney to investigate and present to action that agency deems 

federal district court. warranted. 

• • • Refer to a single judge in the district. • Refer to a single judge in 

the district. 

•Refer the matter to the group or agency.charged •Refer to a single Judge tn 

with enforcing state ethical standards· for whatever the district. 

action that agency deems warranted. 

• Refer to a single judge in the district. 

•Appoint an attorney to investigate and present to 

federal district court. :. 

• Handle another way: attorney discipline is handled • Handle another way: 

by judge before ·whom case is pending. subject right to attorney discipline is handled 

appeal to Chief Judge. by judge before whom case 

i~n~~ting, subject right to a to Chief Judve. 

• Rerer the matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged 

action that agency deems warranted. with enforcing state ethical 

• Refer to panel or committee of attorneys in district standards for whatever 

for investigation and presentation to federal district action that agency deems 

court. warranted. 

• Refer to panel or committee 

of attorneys in district for 

investigation and presentation 

to federal district court. 

• Reter the matter to the grou_p or agency charged • Refer to a smgle Judge m 

with enforcing state ethical standards for whatever the district. 

action that agency deems warranted. 

• Refer to a single judge in the district. 

• Refer to panel or committee of attorneys in district 

for investigation and presentation to federal district 

court. 

•Appoint an attorney to investigate and present to 

federal district court. ' 

Page405 

For Approach Reported 

As Most Frequently 

Utilized, Indicate 

Whether in a Recent 

Case District Reported 

Dissatisfaction with: 

Outcome Procedure 

X X 

X 

X X 

1 Districts With a local rule permitting ("may") or requiring ("shall'') a judicial officer to handle the disciplinary matter himself or herself or 

refer the matter exclusively to bodies or person(s) within the federal district (such as member(s) of the bar of the district court; permanent or 

temporary disciplinary bodies such as "grievance committees," "disciplinary committees or panels," "executive committees," etc.). 

55 
Page406 

Circuit District Indicate Approaches Indicate Approach District For Approach Reported 

District Reported Using: Reported Using Most As Most Frequently 

Frequently: Utilized, Indicate 

Whether in a Recent 

Case District Reported 

Dissatisfaction with: 

Outcome Procedure 

06 E.D. Ky. • Refer the matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged action that agency deems warranted. with enforcing state ethical • Handle another way: referred matter to magistrate standards for whatever 

judge for report and recommendation which court action that agency deems 

adonted. warranted. VO W.D.Ky. • Refer the matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged action that agency deems warranted. with enforcing state ethical • Refer to a single judge in the district. standards for whatever 

action that agency deems 

warranted. 

06 W.D. • Refer the matter to the group or agency charged • Refer to a single judge in 

Mich. with enforcing state ethical standards for whatever the district. 

action that agency deems warranted. 

•Refer ·to a single judge in the district. 

• Refer to panel or committee of iudges within district. 

06 N.D.Ohio • Refer to panel or conuruttee of judges within district. • Refer to panel or comnuttee 

of iudt!es within district 

07 S.D. Ill. • Refer the matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged 

action that agency deems warranted. with enforcing state ethical • Refer to a single judge in the district. standards for whatever • Refer to panel or committee of judges within district. action that agency deems • Appoint an attorney to investigate and present to warranted. 

federal district court. 

07 E.D.Wis. • Refer the matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged 

action that agency deems warranted. with enforcing state ethical 

•Refer to U.S. Attorney for investigation. standards for whatever 

action that agency deems 

warranted. 

08 N.D. lowa • Refer the matter to tp.e group or agency charged •Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged 

action that agency deems warranted. with enforcing state ethical 

standards for whatever 

action that agency deems 

warranted. 

08 S.D. Iowa • Refer the matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged 

action that agency deems warranted. with enforcing state ethical 

standards for whatever 

action that agency deems 

warranted. 

09 C.D.Cal. • • 

09 N.D.Cal. • • 

09 D. Nev. • • 

09 D.Or. • Refer the matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged 

action that agency deems warranted. with enforcing state ethical 

standards for whatever 

action that agency deems 

warranted. 

09 E.D. • Reler to panel or committee of Judges within distnct. • Refer the matter to the 

Wash. group or agency charged 

with enforcing state ethical 

standards for whatever 

action that agency deems 

warranted. 

• Refer to panel or committee 

of iudJ,!;es within district. 

09 W.D. • Refer the matter to the group or agency charged • 

Wash. with enforcing state ethical standards for whatever 

action that agency deems warranted. 

• Refer to panel or committee of attorneys in district 

for investigation and presentation to federal district 

court. 

09 D. N.M.I. • Refer to panel or conuruttee of attorneys m district • Refer to panel or committee 

for investigation and presentation to federal district of attorneys in district fo~ 

court. investilrntion and nresentation 

56 
Page407 

Circuit District Indicate Approaches Indicate Approach Distl'icl For Approach Reported 

District Reported Using: Reported Using Most As Most Frequently 

Frequently: Utilized, Indicate 

Whether in a Recent 

Case District Reported 

Dissatisfaction with: 

Outcome Procedure 

•Appoint an attorney to investigate and present to to federal district court. 

federal district court. •Appoint an attorney to 

investigate and present to 

federal district court. 

10 D.N.M. • Refer to a single Judge tn the <1istnct. • Refer the matter to the X 

• Refer to panel or committee of attorneys in district group or agency charged 

for investigation and presentation to federal district with enforcing state ethical 

court. standards for whatever 

action that agency deems 

warranted. 

• Refer to a single judge in 

the district. • Refer to panel or committee 

of attorneys in district for 

investigation and presentation 

to federal district court. 

II M.D.Ala. •Refer the matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged 

ai::tion that agency deems warranted. with enforcing state ethical 

standards for ·whatever 

action that agency deems 

warranted. 

II S.D.Ala. • Refer to a single judge in the district. •Refer to a single judge in 

the district. 

11 N.D. Fla. •Reier th-e matter to the group or agency charged • Refer the matter to the 

with enforcing state ethical standards for whatever group or agency charged 

action that agency deems warranted. with enforcing state ethical 

•Refer to U.S. Attorney for investigation. standards for whatever 

•Handle another way: used "order to show cause"·to action that agency deems 

remove attorney from roster of attorneys authorized warranted. 

to practice withi~ district without referring to state bar 

DTievance orocess. 

II S.D. Ga. •Refer to a single judge in the district. • Refer to a single judge in 

• Refer to ·panel or committee of judges within district. the district. 

•Refer to U.S. Attorney for investigation. 

57 

Circuit District 

01 D.Me. 

01 D. Mass. 

01 D.N.H. 

01 D. R.l. 

01 D.P.R. 

02 D. Conn. 

02 E.D.N.Y. 

02 N.D.N.Y. 

02 S.D.N.Y. 

02 W.D.N.Y. 

02 D. VI. 

03 D.Del. 

03 D.N.J. 

03 E.D.Pa. 

03 M.D.Pa. 

03 W.D.Pa. 

03 D. V.1. 

04 D.Md. 

04 E.D.N.C. 

04 M.D.N.C. 

04 W.D.N.C. 

04 D.S.C. 

04 E.D. Va. 

04 W.D. Va. 

04 N.D. W.Va. 

04 S.D. W.Va 

05 E.D.La. 

05 M.D.La. 

05 W.D.La. 

05 N.D.Miss. 

05 S.D.Miss. 

05 E.D. Tex. 

05 N.D. Tex. 

05 S.D. Tex. 

05 W.D. Tex. 

06 E.D.Ky. 

W.D.Ky. 

·~ E.D.Mich. 

·~ W.D.M1ch. 

= N.D.Ohio 

S.D. Ohio 

06 E.D. Tenn. 

06 M.D. Tenn. 

06 W.D. Tenn. 

07 C.D.111. 

07 N.D. Ill. 

07 S.D. Ill. 

07 N.D. Ind. 

07 S.D. Ind. 

07 E.D. Wis. 

07 W.D.Wis. 

08 E.D.A,-k. 

08 W.D. Ark. 

08 N.D. Iowa 

08 S.D. lowa 

08 D. Minn. 

08 E.D.Mo. 

08 W.D.Mo. 

08 D. Neb. 

Table A-18 

Frequency of Attorney Misconduct Complaints 

in the Federal District Courts 

for Calendar Year 1996 

Page409 

# Complaints Received in 1996 # Complaints Formal Action was 

Taken on in 1996: 

1 1 

3-5 0 

0 0 

0 0 

4 4 

14 14 

4-5 4-5 

0 0 

26 19 

1 1 

0 0 

1 1 

32 32 

0 0 

not available 

14 14 

5-h 5-h 

13 11 

16 16 

0 0 

0 0 

3 1 

0 0 

0 0 

0 0 

1 1 

21 18 

0 0 

7 7 

11 6 

1 1 

9 9 

1 1 

7 2 

1 1 

13 8 

1 1 

1 1 

5 5 

1 1 

0 0 

0 0 

not available 

unknown 

1 I 

8 8 

0 0 

0 0 

0 0 

0 0 

nofnrovided 

0 0 

3 3 

0 0 

5 5 

0 0 

0 0 

9 9 

11 11 

58 
'Page410 

Circuit District # Complaints Received in 1996 # Complaints Formal Action was 

Tak.co on in 1996: 

08 D.N.D. 0 0 

08 D.S.D. 0 0 

09 D. Alaska notllrovtded 

09 D. Ariz. 4 4 

09 C.D.Cal. I I 

09 E.D.Cal. I I 

09 N.D.Cal. 3 unknown 

09 S.D. Cal. 0 0 

09 D. Haw. 18 II 

09 D. Idaho 0 0 

09 D.Mont. 0 0 

09 D.Nev. 0 0 

09 D. Or. 0 0 

09 E.D. Wash. 2 2 

09 W.D. Wash. not orovided 

09 D. Guam 0 0 

09 D. N.M.l. notOrovided 

. IO D.Colo. 9 5 

IO D. Kan. 0 0 

IO D.N.M. 5 5 

IO E.D. -Okla. 0 0 

IO N.D. Okla. 2 0 

IO W.D. Okla. 5 5 

IO D.Utah 5 4 

IO D. Wvo. 4 4 

II M.D.Ala. 0 0 

II N.D. Ala. 0 0 

II S.D.Ala. 2 0 

II M.D.Aa. 4 3 

II N.D. Fla. 0 0 

II S.D. Fla notnrovtded 

II M.D. Ga. 0 0 

II N.D.Ga. I I 

II S.D.Ga. 2 2 

DC D.D.C. 29 16 

59