If your opposing counsel is from out of state and jumps the gun by filing a complaint before being admitted pro hac vice, can you get the complaint tossed? According to a recent opinion from the Seventh District Ohio Court of Appeals, the answer is “yes.” By implication, the opinion also points to some limits on multi-jurisdictional practice under Rule 5.5 of the Ohio Rules of Professional Conduct.
Practicing without a license
In State ex rel. Hadley v. Pike, the plaintiff’s lawyer was licensed in Pennsylvania, but not Ohio. He nonetheless filed a complaint in the court of common pleas in Columbiana County, Ohio; he only registered with the Ohio Supreme Court, as required, two weeks later. And it was six weeks later before he filed a motion with the trial court to be admitted pro hac vice. Under these circumstances, the court of appeals held, the Pennsylvania lawyer was violating the Ohio statute barring the practice of law by anyone not admitted to practice by order of the state supreme court in accordance with its rules. That effectively made the Pennsylvania lawyer a non-lawyer at the time he filed the complaint, the court ruled, and therefore it was void ab initio as not being properly filed.
Faced with these undisputed facts, the trial court had no discretion to do anything but dismiss the complaint without prejudice for lack of jurisdiction, according to the court of appeals. The defect was not cured by the lawyer’s later registration with the supreme court, his subsequent motion for admission pro hac vice, or the filing of an amended complaint that was intended to relate back to the original filing date.
Two requirements for pro hac vice admission
Rule XII of Ohio’s Rules for the Government of the Bar requires two steps in order for an out-of-state lawyer to be admitted pro hac vice: (1) registering with the Ohio Supreme Court; and (2) filing a motion seeking permission to appear in the court where the lawyer intends to appear as counsel. The rule also prescribes the necessary registration fee, and places an annual limit on the number of “proceedings” that an out-of-state lawyer can appear in. Being admitted pro hac vice is not only required for court appearances; the rule also applies to appearing before any “body acting in an adjudicative capacity,” including a legislative body and an administrative agency.
Impact of multi-jurisdictional practice Rule 5.5
Left unexamined by the court of appeals in Hadley is Rule 5.5, the Ohio ethics rule on multi-jurisdictional practice. That rule permits out-of-state lawyers to practice temporarily in Ohio “if the services are reasonably related to a pending or potential proceeding before a tribunal in [Ohio] if the lawyer … is authorized … to appear in such proceeding or reasonably expects to be so authorized.”
The comments to Rule 5.5 cite the process demanded by the Rules for the Government of the Bar for pro hac vice admission, and gives examples of the kinds of conduct in Ohio that a lawyer can engage in “in anticipation of a proceeding” in which the lawyer “reasonably expects to be admitted pro hac vice,” including:
- meeting with the client;
- interviewing potential witnesses;
- reviewing documents; and
- taking depositions.
Notably absent from the list of examples is filing a complaint on behalf of the client before being admitted, even though the lawyer might “reasonably expect” to be admitted.
Reading Hadley together with Rule 5.5 suggests that there is no ability under Ohio’s unauthorized practice statute, its bar government rules or its ethics rules for an out-of-state lawyer to file a complaint before being formally admitted to practice via the pro hac vice process.
Lawyers not admitted in Ohio who need to represent clients before tribunals in the state should certainly take notice of Hadley. But many other states have similar pro hac vice rules that require something more than merely filing a motion with the court. See, for example, Indiana, Florida, Kentucky, and Tennessee. A website that might also help identify various state requirements is linked here.
If you are a litigator, you should be aware of pro hac vice requirements whenever you need to represent your client in a tribunal in a state where you are not licensed.