The North Carolina Business Court recently issued an order revoking the pro hac vice admission of a Florida attorney and barring him from practicing in North Carolina courts for an entire year. The order arose from a series of misrepresentations and failures to correct inaccuracies made in connection with pro hac vice applications, as well as a failure to notify the court of an adverse ruling on another PHV request in the Tar Heel state. The order reminds us that our duty of candor requires attentiveness to detail in all dealings with the court, including PHV filings. Out-of-state counsel and their local sponsors must ensure the accuracy of all representations to the court and promptly correct any errors or omissions, or risk significant disciplinary consequences.
A Scrivener’s Error?
The facts – as related in the Order – are slightly hard to follow. What they suggest is that a Florida lawyer and local NC counsel filed PHV Motions seeking permission to participate in two different class action cases. Both were accompanied by the required supporting declarations and both also represented that the Florida lawyer regularly practices in Florida and had not been admitted PHV in North Carolina in the last five years.
But the declarations – which were examined by two different judges, contained several inconsistencies. One listed a different Florida bar number in the declaration than what was listed on the PHV motion itself. And one declaration contained a different list of states where the out of state lawyer practiced than the other.
The Judge in the first case granted the Motion. But two hours before the scheduled hearing in the second case, the lawyer filed a revised declaration whereby he retracted his previous assertion that he is licensed and regularly practices in the State of Colorado. As it turns out, he was not licensed in Colorado according to the judge, who looked it up on the Colorado Attorney Registration website.
When the Judge asked him why he signed a document with a misrepresentation as to his state of licensure to practice law, the lawyer said it was the result of a “scrivener’s error.” Then the Court also discovered that, contrary to his representation, the lawyer has been admitted pro hac in at least two other matters in North Carolina in the last five years.
The Judge was not amused. He said the lawyer’s explanations were “alarming” and denied the Motion. And when he did, no one updated the lawyer’s statements in the Motion filed in the first case.
PHV Reconsidered
Three weeks later, the Judge in the first case learned of the denial in the second case and sua sponte noticed a hearing to determine whether reconsideration of his pro hac vice status was warranted.
On the Friday before the scheduled hearing), the lawyer and his local counsel filed an Amended Pro Hac Motion the lawyer disclosed that he had been admitted to practice pro hac vice in at least five other cases within the past five years – not zero as he had represented.
Duty of Candor to the Court
Noting that PHV admission into NC is a discretionary privilege and not a right, the Court found that the lawyer violated his duty of candor imposed under N.C. R. Pro. Conduct 3.3(a)(1), (“a lawyer shall not knowingly make a false statement of material fact or law to tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”). The court also pointed to Comment 3 to the Rule, which explains that any statement proclaiming to be based on the lawyer’s own knowledge, including statements made in a lawyer’s affidavit or in court, is only properly made when the “lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry”.
Comedy of Errors
When asked how he could list the wrong Florida bar number and how he wouldn’t have known he appeared in at least five North Carolina cases though PHV admission, the Florida lawyer explained that it was a “comedy of errors” due to circumstances surrounding the case and firm staffing issues. The court found that even if there was no nefarious intent or attempt to withhold information, as the Florida lawyer claimed, his conduct still amounted to gross negligence in keeping past PHV records and in making representations to the court. The court found it even more troublesome that the Florida lawyer failed to notify it of the order in the second data breach case denying the PHV motion. The court emphasized that is difficult to understand how the Florida lawyer did not find it necessary to examine the PHV filings in this case to determine if they contained the same inaccuracies contained in the PHV filings in the other case. Based on the affirmative misrepresentations he made to the court and the fact that the Florida lawyer failed to notify this court of the adverse ruling in the other breach case, the court found there was sufficient basis to revoke his PHV admission.
The court explained that the duty of candor requires lawyers to correct their false factual or legal statements previously made to the tribunal even in circumstances where the lawyer believed the statement to be true when the statement was made. But the court found that merely revoking the PHV status was not enough to protect the court’s integrity and the administration of justice. Accordingly, the court barred the Florida lawyer from practicing in North Carolina courts for a year (though North Carolina law allows courts to suspend attorneys for up to 5 years for violating a rule of professional conduct).
Local Counsel is Not Off of the Hook
Local counsel was also admonished by the court, underscoring the responsibility of local counsel to ensure compliance with court rules and to act as a conduit for the court’s oversight of out-of-state attorneys. Though the court noted local counsel was not as culpable, his conduct was nonetheless inexcusable. The court found that while local counsel may not have been aware of the inaccuracies in the PHV filings, once he had actual notice of the adverse order in the other case, as local counsel, he had a duty to bring it to the court’s attention.