Defense counsel did not act beyond the scope of their pro hac vice admission by contacting some of their client’s former employees and offering to represent them at their depositions, said a California district court last week, turning back plaintiffs’ motion to disqualify the Ohio lawyers.  In its opinion the court analyzed both pro hac vice principles and the Golden State’s ethics rules on client solicitation.

Extent of PHV admission

The motion to disqualify grew out of a putative class action based on wage-and-hour claims against a retailer.  In their applications for pro hac vice admission, the Ohio lawyers identified the defendant as the party they represented.  Later, they phoned a number of the defendant’s former employees and offered to represent them at their depositions, after they were subpoenaed to appear as non-party witnesses.  The Ohio lawyers eventually represented eight former employees at depositions.

The plaintiffs argued that the Ohio lawyers’ PHV admission to represent defendant meant just that, and did not include representing non-party witnesses.  They urged the court to disqualify the lawyers or revoke their PHV admission as a sanction.  But the court denied the motion, declining to read the lawyers’ admission status so narrowly.  Instead, said the court, “counsel, admitted on a pro hac vice application, ought to be able to fully prosecute or defend the action in which they were admitted within the bounds of the law.”

Solicitation for pecuniary gain?

The plaintiffs also argued that by phoning some of the defendant’s former employees, the Ohio lawyers had violated California’s rules on client solicitation.  Like Model Rule 7.3, California’s version bars telephone contact to solicit professional employment when a significant motive for doing so is the “lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer.”

The rationale for the rule is that “A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal services. This form of contact subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter,” in a situation that can be “fraught with the possibility of undue influence, intimidation, and overreaching.”  Model Rule 7.3, cmt. [2].

But, argued the defendants, the Ohio lawyers did have a preexisting professional relationship with the employees, because they were all former managers of the client.  The court acknowledged that these were  management-level employees who were being deposed as a result of that employment relationship.

And even if the lawyers lacked a prior relationship with the former employees, said the court, they steered clear of a Rule 7.3 violation because they did not solicit for “pecuniary gain.”  Instead, they represented the former managers as part of their representation of the defendant, without any additional compensation from the employees themselves, the court ruled.

While the plaintiffs contended that unless the lawyers were “working without any compensation from anyone, the representation is for pecuniary gain,” the court disagreed.

Watch yourself…

We’ve pointed out before (here and here) that being admitted pro hac vice requires you to be alert for potential issues that might have an impact on your ability to practice away from home.  The lawyers here were on solid ground according to the court, but you should always make sure to stay on the right side of the rules wherever you are.