Model Rule 3.3

Subscribe to Model Rule 3.3

If you’re admitted to handle a case PHV, mind your P’s and Q’s.

Translation:  Pro hac vice admission to practice before a court outside the state where you’re licensed requires attention to a range of ethics duties, and running afoul of them can have bad consequences.  Two recent cases spotlight some of the issues.

We’re looking at you….

A Louisiana lawyer was admitted pro hac vice to represent a client in the Western District of North Carolina.  On the application, he certified that he had never been subject to a formal suspension or public discipline in Louisiana.  Whoops.  In 2014, the lawyer had been suspended in the Bayou State for neglecting a client matter and mishandling a client trust account, but the suspension was deferred pending successful completion of a two-year probation.

The lawyer argued that his certification on the PHV application was not a material misrepresentation.  Maybe not technically — but the district court in North Carolina was not buying it.  The lawyer’s missteps in his home state didn’t automatically disqualify from appearing in North Carolina, said the court.  But he was required to explain his disciplinary history.  The lawyer’s argument that he had to disclose only an actual interruption in his ability to practice was “manifestly not credible,” the court found.  Even making the argument demonstrated his lack of candor, the court noted.

The outcome:  revocation of the lawyer’s permission to represent his client in the case.

Lesson:  Your state has a version of Model Rule 3.3 (Candor toward the Tribunal), Model Rule 5.5 (Multi-jurisdictional Practice) and Model Rule 8.4(c) (dishonesty, misrepresentation).  Don’t try to shave the corner of the plate when you’re applying for PHV admission.  Explain anything that even arguably needs explaining.  Don’t try to justify a failure to disclose with an over-technical reading of the  requirements.  A court might not look kindly on that strategy.

Hand-flapping and harassment

An Ohio lawyer admitted pro hac vice before the Delaware Chancery Court was representing the defendants.  Things went awry when the lawyer deposed one of the plaintiff’s witnesses, and based on misconduct at the deposition, the court granted the lawyer’s own motion to withdraw his PHV admission.

From its review of the deposition transcript and video, the court noted that the lawyer

  • raised his hand and made yapping gestures toward plaintiff’s counsel while plaintiff’s counsel was speaking;
  • repeatedly interrupted plaintiff’s counsel and referred to him as “Egregious Steve,” and the “sovereign of Delaware”;
  • harassed the deponent with personal questions; and
  • called the deponent and plaintiff’s counsel “idiots.

For this conduct, which it called “not only rude, but tactically so,” the court granted the motion to withdraw, and also referred the matter to Delaware disciplinary counsel, along with imposing attorneys’ fees on the lawyer and his firm.

Lesson:  Be professional and dignified at all times, but especially when you are in someone else’s bailiwick.  As the court said, the lawyer was appearing in Delaware “as a courtesy extended to him to practice pro hac vice.”  Delaware, like many other jurisdictions, has a professionalism code, in addition to its Rules of Professional  Conduct.  The Delaware code stresses “civility,” respectfulness, “emotional self-control,” and refraining from “scorn and superiority in words or demeanor,” and is binding on those appearing pro hac vice, the court said.

The take-home from these two cases is obvious.  When you’re specially admitted before a court, any professional or ethical misconduct carries with it the added potential risk of being tossed from the case, with clear downsides for your client, as well as for you.  Mind those P’s and Q’s, and stay out of PHV trouble.

In a warning to semi-retired lawyers and others, the Sixth Circuit Court of Appeals earlier this month affirmed a 90-day suspension for a lawyer who let others draft and sign his name to deficient  pleadings, saying that “a lawyer’s good name and professional reputation are his primary stock in trade, an asset to be cultivated and safeguarded throughout his career — even after ceasing the active practice of law.”

“One size fits all” briefs

The case started out in a Michigan district court, which found that briefs filed under the lawyer’s name from 2012-2015 in multiple social security benefits cases were “woefully deficient both as to the quality of the briefs and the management and monitoring of the appeal process on behalf of clients.”  The briefs sometimes had little to do with the facts of the particular case in which they were filed; the district court hearing panel, in its opinion, called them “one size fits all” briefs.

The panel found that in the process of retiring from the firm in which he was a senior partner, and withdrawing from actively practicing, the lawyer authorized his firm for a period of some years to continue submitting district court filings in his name in numerous social security benefits appeals as though he were attorney of record.  But he didn’t review these filings, or supervise the lawyers who actually prepared them.  Rather, his participation was simply a “façade” to help the firm.  (In fact, said the panel, the firm’s social security practice was essentially run by a secretary.)

The panel described how once a brief was filed in the district court, no further work would be done on a social security appeal.  Neither the lawyer whose name was used nor any other lawyer at the firm saw the opposing party’s brief, no lawyer submitted any type of response, and none ever saw a report and recommendation or a final decision.

In this process, the clients obviously got short shrift.  The panel described at least one of them as having been “abandoned.”

Duty to supervise, duty of candor

In its panel opinion, the district court said that the lawyer violated Michigan’s versions of Model Rule 5.1 (duty to supervise subordinate lawyers) by not supervising preparation of briefs that were submitted using his signature and his filing credentials; and Rule 3.3 (candor to the tribunal), by authorizing submission of briefs bearing his name – thus falsely representing that he had reviewed or monitored their preparation.

The district court panel recommended a 90-day suspension; as one of the aggravating factors, the panel noted that the lawyer had a “selfish motive” in lending his name to the appeals, since it helped keep the firm profitable, and his retirement benefits flowing.

The Sixth Circuit adopted the panel’s findings and recommendations.  It wrote that “this case presents a sad example of a decent lawyer, who in the autumn of a successful career, became careless in permitting the use of his name for improper purposes and needlessly brought dishonor to himself, his firm, the profession and the justice system.”

Takeaways…

First, whether you’re winding down your practice or in your prime, it’s clearly risky to let anyone use your name to sign court filings you don’t have control over, even if it’s someone at your firm.

Second, and maybe not so well-known, is that your state’s disciplinary authority is not the only body that can mete out professional discipline.  The federal district courts have inherent power to regulate the conduct of the lawyers who appear before them; they usually have their own disciplinary procedures laid out in their local rules; and by local rule, the district court usually adopts the lawyer conduct rules of the jurisdiction as the ones that govern.

And last, the lawyer here came under extra criticism for his “continuing resistance to this disciplinary action and stubborn refusal to acknowledge his leading role in the failings.”  If you  ever find yourself in the disciplinary cross-hairs, don’t do that — it will seldom help your cause.