Must You Have a Trial Bar Member on Your Team?

In many common-law jurisdictions, their are two classes of lawyers: barristers and solicitors. Barristers tend to specialize in courtroom advocacy and litigation. Solicitors tend to focus on transactional matters and general legal advice to clients.

Legal systems in the United States generally do not respect such distinctions. For the most part, lawyers are of one class. Any lawyer admitted to the bar in a jurisdiction may advise clients in transactions or appear in court on their behalf.

But the Northern District of Illinois (like many other federal courts) does make one significant distinction: some members of its bar may appear alone in all matters; others may not.

The Court distinguishes between members of its “General Bar” and members of its “Trial Bar.”

Northern District of Illinois Local Rule 83.12 (What Only Trial Bar Members May Do)

All attorneys admitted to practice (except pro hac vice) are members of the General Bar. Usually, one must at least be a General Bar member to appear in a case:

But being a member of the General Bar does not allow you to appear alone in all proceedings. To appear alone in some proceedings, you must also be a Trial Bar member:

Attorneys admitted to the trial bar may appear alone in all matters. Attorneys admitted to the general bar, but not to the trial bar, may appear in association with a member of the trial bar in all matters and may appear alone except as otherwise provided by this rule.

Local Rule 83.12(a) (Who May Appear).

That is, only Trial Bar members may appear alone in “testimonial proceedings.” In any such proceeding, at least one member of the Trial Bar must be present to advise a General Bar member not admitted to the Trial Bar:

An attorney who is a member of the trial bar may appear alone during testimonial proceedings. An attorney who is a member of the bar, but not of the trial bar, may appear during testimonial proceedings only if accompanied by a member of the trial bar who is serving as advisor.

Local Rule 83.12 (b) (Testimonial Proceedings).

This requirement will only be waived in “exceptional circumstances.”

A judge may grant permission in a civil or criminal proceeding pending before that judge to an attorney admitted to the general bar, but not to the trial bar, to appear alone in any aspect of the matter only upon written request by the client and a showing that the interests of justice are best served by waiving the experience requirements otherwise required by these rules. Such permission shall apply only to the proceeding in which it was granted. Granting of such permission shall be limited to exceptional circumstances.

Local Rule 83.12(d) (Waiver).

Northern District of Illinois Local Rule 83.14 (Pro Hac Vice Admissions)

Attorneys admitted pro hac vice, by definition, are not members of the General Bar (and therefore, not members of the Trial Bar).

The local rules are somewhat unclear about how the Trial Bar requirement should affect lawyers admitted pro hac vice. Local Rule 83.14 (one we’ve visited before) concerns pro hac vice admission:

Local Rule 83.14 makes no mention of the Trial Bar requirement. Neither does Local Rule 83.15 concerning local counsel. The Court appears to have broad discretion to admit, temporarily, any attorney to argue or try a case (that is, to appear in testimonial proceedings). Thus, one might argue that under Local Rule 83.14, the Trial Bar requirement does not strictly apply to lawyers admitted pro hac vice; such lawyers should be permitted to appear, alone, in testimonial proceedings.

Here’s the counterargument. While Local Rule 83.14 does not mention the Trial Bar explicitly, it does express that appearances pro hac vice are subject to Local Rule 83.12—the rule that substantially describes the Trial Bar requirement. This, one might argue, means that any attorney admitted pro hac vice (like any member of the General Bar), must have at least one lawyer present who is a Trial Bar member.

I want to hear others’ experiences on how the judges in the Northern District of Illinois, in practice, have dealt with the Trial Bar requirement in pro hac vice situations. My cases have always included Trial Bar members in testimonial proceedings, so it is not an issue I have faced.

In a future post, I will describe some of the requirements for Trial Bar admission. For now, you should understand that not lawyers admitted to practice in the Northern District of Illinois (including potential local counsel) are Trial Bar members, and it may be to your advantage (if not required) to have a Trial Bar member on your team.

So you have a case in federal court outside Illinois and you need to subpoena someone in Chicago. What court must issue the subpoena?

Federal Rule of Civil Procedure 45(a)(2) addresses this:

Issued from Which Court. A subpoena must issue as follows:

(A) for attendance at a hearing or trial, from the court for the district where the hearing or trial is to be held;

(B) for attendance at a deposition, from the court for the district where the deposition is to be taken; and

(C) for production or inspection, if separate from a subpoena commanding a person’s attendance, from the court for the district where the production or inspection is to be made.

So basically this:

• for trial or hearing, the court where the case is pending;
• for deposition, the court where the deposition will take place (if the deposition has to take place in Chicago because the witness resides here, issue the subpoena from the Northern District of Illinois); and
• for documents and inspection, the court where the production or inspection will happen (again, Northern District of Illinois if in Chicago).

Under FRCP 45(a)(3), the attorney who signs the subpoena can be one admitted where the case is pending, even if the subpoena is coming from a different federal court. So you probably don’t need local counsel to sign the subpoena. But recognize that any proceedings or motions regarding the subpoena may occur in the issuing court, and an appearance or filings might require local counsel and pro hac vice admittance.