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.

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.

Take-home lessons

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.