International Association of Defense Counsel

Model Rule On Pro Hac Vice Admission

    (a) Authority To Permit Appearance By Out-Of-State Lawyer. A court of this state may, in its discretion, admit an eligible out-of-state lawyer, who has been retained to appear in a particular proceeding pending before such court, to appear as counsel in that proceeding pro hac vice. If practice before an agency is limited to lawyers, the agency may, using the same standards and procedures as a court, admit an eligible out-of-state lawyer who has been retained to appear in a particular agency proceeding to appear as counsel in that proceeding pro hac vice.

    (b) Procedure on Application. An eligible out-of-state lawyer desiring to appear as counsel pro hac vice shall file with the court a verified application, with proof of service on all parties who have appeared in the cause and on the [ lawyer regulatory authority]. The [ lawyer regulatory authority] may, in its discretion, object to the application, provide the court with information bearing on whether the application should be granted, or move that admission pro hac vice be withdrawn. If there is no objection to an application, the court may grant it summarily. If a court contemplates denying an application to which no objection has been made or on grounds other than those stated in the objection, the court shall provide written notice to the applicant of the reasons contemplated by the court as possible grounds for denial. The applicant shall be permitted to make a written response to any objections or contemplated reasons for denial of the application. If the court denies the application, it shall state its reasons for doing so.

    (c) Eligible Out-Of-State Attorney. An out-of-state attorney is a person not admitted to the bar of this state but who is a member in good standing of the bar of any United States Court or of the highest court of any state, territory, or insular possession of the United States or of the District of Columbia. An out-of-state attorney is ineligible for admission pro hac vice if that attorney resides in this state, or is regularly employed at an office in this state. Notwithstanding the foregoing, an out-of-state attorney who would be ineligible for either of these reasons remains eligible pending action on a prompt and diligently pursued initial application for admission to the bar of this state.

    (d) Application: Required Information. An application shall state:

(1) the applicant’s residence and business address;

(2) the courts before which applicant has been admitted to practice generally, the respective dates of admission and the respective dates and circumstances of any termination of such admission;

(3) whether any disciplinary proceeding has ever been brought against the applicant and, if so: the nature of the allegations; the name of the authority bringing such proceedings; the date and style of the proceedings; and what findings were made and what action was taken in connection with those proceedings;

(4) whether the applicant has ever been held in contempt or otherwise sanctioned by any court for disobedience to its rules or orders, and, if so: the nature of the allegations; the name of the court before which such proceedings were conducted; the date and style of the proceedings and what action was taken in connection with those proceedings;

(5) the title of each court or agency and each proceeding in which the applicant or any lawyer in the applicant’s firm has filed an application to appear pro hac vice in this state in the preceding two years, the date of each application, whether it was granted, and whether any of the clients represented or sought to be represented in such cause resided or had a principal place of business in this state;

(6) whether any other lawyer practicing in the same firm as applicant now practices and has within the prior five years (1) been denied admission pro hac vice in this state, (2) had admission pro hac vice revoked in this state or (3) has otherwise been disciplined or sanctioned by any court in this state and, if so: the nature of the allegations; the name of the authority bringing such proceedings; the date and style of the proceedings, and what findings were made and what action was taken in connection with those proceedings;

(7) whether any client sought to be represented in the current proceeding resides or has a principal place of business in this state; and

(8) the name, address and telephone number of an in-state lawyer (i.e., an active member in good standing of the bar of this state) who is attorney of record for the client(s) applicant proposes to represent. If such attorney ceases to be an attorney of record for such client(s) after admission pro hac vice has been granted, another in-state lawyer must be substituted.

    (e) Application: Optional Information. An application may state any other matters supporting admission pro hac vice, such as:

(1) the applicant’s current employment by one or more of the clients applicant proposes to represent;

(2) the applicant’s prior or continuing representation in other matters of one or more of the clients applicant proposes to represent and any relationship between such other matter or matters and the proceeding for which applicant seeks admission;

(3) any special experience, expertise, or other factor deemed to make it particularly desirable that the applicant be permitted to represent the client(s) applicant proposes to represent in the particular cause;

(4) that the client(s) applicant proposes to represent were advised by another lawyer, duly authorized to render such advice, in deciding to retain applicant; or

(5) that none of the clients applicant proposes to represent resides or has a principal place of business in this state.

    (f) Standard for Admission. Discretion shall be liberally exercised to grant applications for admission pro hac vice unless the court finds reason to believe that such admission (1) may be detrimental to the prompt, fair and efficient administration of justice, (2) may be detrimental to the legitimate interests of parties other than the client(s) the lawyer proposes to represent, (3) one or more of the clients the lawyer proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk, or (4) the applicant has engaged in such frequent appearances as to constitute regular practice in this state. Admission to appear as counsel pro hac vice in a suit may be revoked for any of these reasons.

    (g) Fee. An applicant for permission to appear as counsel pro hac vice under this rule shall pay a fee of $_________ to the [ lawyer regulatory authority] with the copy of the application served on it. This fee shall be used by the [ lawyer regulatory authority] (1) to defray the expenses of administering this rule and (2) partially to defray [ lawyer regulatory authority’s] expenses of administering its other responsibilities for enforcing statutes and rules relating to the competent and ethical delivery of legal services.

    (h) Contempt, Sanctions & Discipline. An applicant submits to the jurisdiction of the courts of this state for purposes of contempt, sanctions, and discipline for all conduct relating to the proceeding in which applicant seeks or is permitted to appear and for any other conduct in this state. An applicant is subject in the same manner as any in-state lawyer to the Rules of Professional Conduct during the pendency of any application to appear as counsel pro hac vice and for the duration of any such admission. An applicant shall become familiar with those rules.

    (i) Activities In Contemplation of Litigation. An out-of-state lawyer may consult in this state with a person contemplating possible proceedings before a court or agency in this state, in conjunction with that person’s in-state lawyer, and may engage in investigative and other activities, including settlement negotiations, preparatory to such possible litigation. So long as the out-of-state lawyer reasonably expects to be admitted to appear as counsel pro hac vice if the contemplated proceeding is filed in this state, such activities shall not be deemed unauthorized practice, even if no proceeding is filed or if admission pro hac vice is later denied.

    An out-of-state lawyer who has been lawfully consulted outside this state by a person contemplating possible proceeding before a court or agency in this state may engage in investigative or other activities, including settlement negotiations, in this state preparatory to such possible proceeding. So long as the out-of-state lawyer reasonably expects to be admitted to appear as counsel pro hac vice if the contemplated proceeding is filed in this state, such activities shall not be deemed unauthorized practice, even if no proceeding is filed or if admission pro hac vice is later denied.

    (j) Conduct Not Requiring Appearance. An out-of-state lawyer may consult in this state with an in-state lawyer who is or is contemplated to be counsel of record in a proceeding which has been or may be filed in this state and with that lawyer’s clients in that proceeding or contemplated proceeding. The out-of-state lawyer may play an advisory or consultative role, but the in-state lawyer shall remain responsible for the conduct of the proceeding before the court or agency and shall advise the client(s) in the suit of the in-state lawyer’s independent judgment on contemplated actions in the proceeding if that judgment differs from that of the out-of-state lawyer.

    An out-of-state lawyer may come into this state at the request of a person contemplating a proceeding which may be filed here or in some other jurisdiction for a preliminary consultation about whether that person wishes to retain the out-of-state lawyer in connection with that contemplated proceeding. An out-of-state lawyer in this state for other reasons is not authorized by this rule to hold himself or herself out, to non-lawyers who have not requested the out-of-state lawyer’s presence, as available to assist in potential suits.

    (k) Consultation Outside This State. This court’s rules do not limit any right of an out-of-state lawyer, consulted by a client from this state while such lawyer is physically outside this state, to render legal advice or services from outside this state to such in-state client in connection with a proceeding pending or contemplated to be filed in a court in this state.

    (l) Appearance In Arbitration. If a dispute is subject to arbitration within this state, a court for the [ district/circuit/etc.] in which such arbitration would be held and which would have authority to confirm the award pursuant to [ the state arbitration statute] or the Federal Arbitration Act may, in its discretion, admit an eligible out-of-state lawyer, who has been retained to appear in such arbitration, to represent a client or clients in that arbitration. If no party to the arbitration resides or has a principal place of business in this state, any client wishing to do so may be represented in such arbitration by an eligible out-of-state lawyer, without regard to pro hac vice admission, but any such lawyer must register with [ lawyer regulatory authority], pay a fee of $________, is subject to the Rules of Professional Conduct for any conduct in this state, and submits to the disciplinary and personal jurisdiction of the courts of this state for any conduct in connection with such arbitration or contemplated arbitration. If the parties have agreed that an arbitration is not to be governed by legal rules, but by religious, business or other standards, an eligible out-of-state lawyer may represent any party without pro hac vice admission.

    An eligible out-of-state lawyer may engage in activities in contemplation of arbitration or not involving an actual or contemplated appearance in arbitration in this state on the same basis as if it were a contemplated or actual proceeding before a court or agency.

    (m) Ancillary Proceedings. Any lawyer admitted to appear in a proceeding pending in any court or agency of the United States, or of any state, territory or insular possession of the United States or of the District of Columbia may conduct, in this state, lawful discovery or investigative proceedings regarding or in aid of such proceeding. Any lawyer retained by a client or clients who neither reside nor have a principal place of business in this state may conduct in this state investigative activities, settlement negotiations, or other activities preparatory to contemplated proceedings or arbitrations to be conducted outside this state, so long as the lawyer would be entitled to represent the client(s) in such contemplated litigation or arbitration or reasonably expects to be admitted pro hac vice to do so.

COMMENTS:

    [a] Courts in all American jurisdictions regularly admit lawyers from other jurisdictions to appear as counsel pro hac vice. Such admission has been almost a matter of course when sought in conjunction with locally admitted counsel. As a result, there have been little procedural structure for addressing such applications and ruling on such applications has been entrusted solely to the discretion of the court asked to admit the lawyer. This rule seeks to provide a procedural framework, to provide standards to guide the discretion of the court, and to address ancillary issues not dealt with in traditional pro hac vice practice.

    [2] The purpose of pro hac vice procedure is to permit clients to obtain the assistance of the lawyers of their choice even though the lawyers do not have the sort of regular connection with the forum state that would give them reason to seek general admission to its bar. Lawyers who reside in or are employed in the state can reasonably be expected to seek general admission to the bar if they desire to practice there. They should not need access to pro hac vice admission and should not be encouraged to rely on it as an alternative to general admission. But lawyers who have just formed such a connection to the state may be permitted to seek pro hac vice admission while promptly and diligently pursuing an initial application for general admission to its bar.

    [3] The prohibition on practice of law by those not admitted to the bar of the state is primarily intended to protect prospective clients against unskilled or unethical practitioners. A secondary purpose is to protect courts, opposing parties, witnesses, and the public generally against practitioners who might breach professional obligations that protect the administration of justice and the interests of non-clients. Pro hac vice practice gives little attention to direct assessment of the competence of those seeking admission. Reliance is placed on a combination of (a) the out-of-state lawyer’s admission elsewhere, (b) the client’s possession of sufficient confidence in the lawyer to go to the trouble to bring the lawyer in from another state, (c) the ability of the locally-admitted co-counsel to protect against deficiencies in the out-of-state lawyer’s representation, and (d) the ability of the court to detect any obvious incompetence in the conduct of the case. Nonclients do not have the same ability as clients to protect themselves against potential improper conduct by the out-of-state lawyer. So it is necessary to give greater attention to information bearing on that lawyer’s observance of the requirements of professional responsibility. Much of the information in the application is intended to assist such an assessment. The requirement for disclosure of disciplinary proceedings and the identity of the authority commencing same is intended to apply only to formal disciplinary complaints or the equivalent, based on a finding of probable cause by a disciplinary authority. Mere grievances, not resulting in any finding of probable cause, need not be disclosed.

    [4] The [ lawyer regulatory authority] has special responsibilities to protect the public against unethical lawyers and special abilities to obtain information from other jurisdictions for that purpose. To permit [ the authority] to assist the court, the applicant is required to serve the application upon it and [ the authority] is given standing to object to the application or to seek revocation of admission once granted. Processing of applications imposes burdens on the agency, as does the potential responsibility to investigate and act on disciplinary complaints against the applicant. A fee is imposed to defray some of these costs. The court or agency to which the application is directed need not delay action on the application to await any response by [ the authority], but may freely reconsider any action in light of any information provided by or any objection expressed by [ the authority].

    [5] The rule assures that the applicant will have notice of and an opportunity to respond to any alleged grounds that may be relied upon to deny the application. If the propriety of admission turns on contested issues of fact, an evidentiary hearing must be held.

    [6] In accordance with traditional pro hac vice practice, there is a strong presumption that the application should be granted unless there is an affirmative reason to deny it. The client should ordinarily be permitted representation by the counsel of the client’s choice unless either the client is unable to appreciate evident risks of inadequate representation or there is a threat to non-client interests. (Of course, the lawyer has a duty to be sure the client understands that the lawyer is not admitted generally in the tribunal where pro hac vice admission is sought.)

    [7] Clients with sufficiently extensive legal affairs that they have employee lawyers handling some or all of those affairs are better situated than most other clients, in terms both of the ability to assess a lawyer’s competence and ethical standards and of the incentive to do so. They do not ordinarily require the protection of the unauthorized practice laws. The same may be said of clients who have the advice of another lawyer in retaining the applicant for pro hac vice admission.

    [8] Clients have a special interest in being able to use lawyers with whom they have previously formed attorney-client relationships. Such clients have had the ability to assess the lawyer’s prior work, to develop trust in that lawyer, and to educate that lawyer on client affairs, objectives, and priorities. Clients ought not lightly to be deprived of the ability to use such lawyers in proceedings in other jurisdictions.

    [9] Because the primary purpose of the unauthorized practice laws is to protect clients against practitioners falling below minimum standards of competence, it would be perverse to deny a client the ability to use a lawyer with special experience or expertise beyond that of the average in-state lawyer.

    [10] While a lawyer admitted pro hac vice is subject to contempt, discipline, or other sanctions in this state, this state’s ability to protect client interests is still less than it would be were the lawyer generally admitted to the bar of this state. But, when the client(s) are residents of other states (or are organizations with their primary places of business in other states), the state’s interest in protecting its own residents as clients is not implicated. Such clients may be permitted to rely on the lawyer regulatory regimes of their own states and, if different, the state(s) where the lawyer is admitted. Attention may be focused on whether admission endangers non-client interests in this state.

    [11] Even if an out-of-state lawyer does not have connections with this state rendering the lawyer ineligible for pro hac vice admission, such admission should not be used repetitively as a way to engage in regular practice in this state. In assessing whether repetitive appearances would have this effect, such appearances must be viewed qualitatively. Appearances solely on behalf of clients who neither reside nor have principal places of business in this state have less tendency to constitute regular practice than a similar number of appearances on behalf of clients who do reside or have principal places of business in this state. Multiple appearances on behalf of the same client or group or clients have less tendency to constitute regular practice than a similar number of appearances on behalf of different clients or groups of clients. Multiple appearances in proceedings that are related to one another have less tendency to constitute regular practice than a similar number of appearances in unrelated proceedings. Five unrelated appearances by the same lawyer in two years, even including some for clients who reside or have principal places of business in this state, ordinarily do not constitute regular practice. But the court may inquire into pro hac vice appearances by other lawyers in the same firm and consider whether the firm as a whole is engaged in regular practice through pro hac vice appearances. In making such determinations, the court should consider the number of appearances in relation to the size of the firm. If the firm includes lawyers admitted generally in this state and actively practicing here, the number of pro hac vice appearances by out-of-state lawyers in that firm should be considered in relation to the size of the firm’s practice in this state by generally admitted lawyers.

    [12] Clients sometimes retain in-state lawyers to conduct litigation in this state but desire to have out-of-state lawyers advise and assist with the conduct of that litigation. The in-state lawyer’s exclusive role in proceedings before the court and under its authority allows that lawyer to substantially protect both the client(s) and any non-client interests. In such circumstances, the out-of-state lawyer’s involvement in the litigation does not require admission pro hac vice.

    [13] An out-of-state lawyer cannot be admitted pro hac vice until a case has already been filed by a locally-admitted lawyer as counsel of record. But, once suit is filed, admission pro hac vice is presumptively available in most circumstances. A lawyer who reasonably expects admission pro hac vice may conduct activities in contemplation of such a suit. If those activities include advising a client in this state, they must be performed in conjunction with locally admitted counsel. For purposes of this rule, mediation is regarded as a type of settlement negotiation.

    [14] Residents of this state are allowed to travel to other states and to use the instrumentalities of interstate commerce and communication to obtain services and advice from persons authorized to provide such services by the states where those persons provide the services and advice. Provision of such services and advice by an out-of-state lawyer, physically located in a state where that lawyer is authorized to provide such services and advice, does not violate the unauthorized practice laws of this state.

    [15] Arbitration occurs out of court, but this rule authorizes a court that could confirm an arbitral award to admit an out-of-state lawyer pro hac vice. Where none of the parties reside or have a principal place of business in this state, this state’s interests are limited and do not warrant subjecting the parties to the expense of the pro hac vice procedure. Registration is still required so [ lawyer regulatory agency] will be informed of the out-of-state lawyers practicing in this state. Where an arbitration is not governed by legal standards, the interests protected by the unauthorized practice laws are not sufficiently implicated to warrant subjecting the parties to either the expense of the pro hac vice procedure or to registration.

    [16] Lawyers engaged in proceedings in other states are primarily subject to the tribunals in which those proceedings are conducted. Even when discovery or investigative proceedings in connection with such out-of-state proceedings are conducted in this state, the interests protected by the unauthorized practice laws are not sufficiently implicated to warrant subjecting the parties to either the expense of the pro hac vice procedure or to registration.

Drafter’s Notes

    (a) In one form or another, pro hac vice practice is ubiquitous in American courts. The ABA Center for Professional Responsibility has complied a table of "Pro Hac Vice Rule Information" referencing applicable state rules. [cite or append] Extension to administrative agencies of authority to admit pro hac vice is novel, though lawyers do not need such admission before federal agencies, and such agencies may have authority to admit lay practitioners. 5 U.S.C. § 500(b) (statutory right of lawyer admitted in any state to practice before federal agencies; 35 U.S.C. § 31 (patent office authority to admit lay practitioners). Agencies in some states have that power, and some states may not limit administrative representation to lawyers. E.g., Ala R. Gov. Admission, R. VII(A) (agency power to admit pro hac vice).

    (b) Most states require only an application to the court in which the lawyer seeks to appear. But a significant minority require service on a lawyer regulatory authority. Ala R. Gov. Admission, R. VII(D); Alaska R. Civ. P.. 81(a)(2); Calif. R. Ct. 983(b); Idaho St. Bar Comm’n R. 222; Mont. Admission R. § IV(D); Nev Sup. Ct. R. 42; N.D. R. Ct. 11.1; Or. Rev. Stat. 9.241 & Unif. Trial Ct. R. 3.170; Utah S. Ct. R. Prof. Prac. 11-302; D.C. Ct. App. R. 49(c)(7). This model follows the latter approach. See Comment [4].

    (c) Several states expressly preclude pro hac vice admission for local residents or those with other specified connections to the state. E.g., Ala R. Gov. Admission, R. VII(A); Calif. R. Ct. 983(a); Haw. R. Ct. 1.9; Mont. Admission R. § IV(B); Tex. R. Gov. Admission XIX(a); D.C. Ct. App. R. 49(c)(7)(iii). Other states impose a similar requirement indirectly. E.g.,  Tenn R. Ct. 19(b} (requiring applicant to certify licensure by state of residence). In other states, this may be a factor considered by individual judges in passing on requests for admission.

    (d) Some states specify little or nothing about the content of an application for admission. But many do. E.g., Ala R. Gov. Admission, R. VII(D); Ariz. Sup. Ct. R. Admission 33(d); Calif. R. Ct. 983(b); Conn. Prac. Book §§ 2-13 & -16; Del. Sup. Ct. R. 71(a)-(b); Fla. Jud. Admin. R. 2.060; Ga. St. Bar R. 1-203(1); Haw. R. Ct. 1.9; Idaho St. Bar Comm’n R. 222; Ill. Sup. Ct. R. 707; Ind. R. Admission & Discip. R. 3, § 2; Kan. Stat. 7-104 & Kan Sup. Ct. R. 101(f) & 705(b) & Kan. Dist. Ct. R. 116; Ky. Sup. Ct. R. 3.03; La. Rev. Stat. Tit. 37:214 & 37:215 and La. Sup. Ct. R. XVII, § 11; Me. Rev. Stat., tit. 4, § 802; Md. R. Gov. Admission 14 & Md. Ann. Code, Bus. Occ. & Prof. § 10-215; Mass. Gen. L. ch. 221, § 46A; Mich. R. St. Bar 15, § 2; Minn. Stat 481.02(6) & Minn. Gen. Prac. R. 5 & Minn. R. App. P. 143.05; Miss. Code § 73-3-37 & Miss. Sup. Ct. R. 46; Mo. Sup. Ct. R. 9.03; Mont. Admission R. § IV(D); Neb. R. Admission 6; Nev Sup. Ct. R. 42; N.H. Sup. Ct. R. 33, §1 & N.H. Super. Ct. R. 9; N.J. R. Ct. 1:12-2; N.Y. Ct. App. R. 520.11; N.C. Gen. Stat. 84-4.1; N.D. R. Ct. 11.1; Oh. Sup. Ct. R. Prac. 1, § 2 & Oh. Ct. Cl. R. 17; Okla. Sup. Ct. R. 1.5, art. 2, § 5; Or. Rev. Stat. 9.241 & Unif. Trial Ct. R. 3.170; Pa. R. Bar Admission 301; R.I. S. Ct. R., art II, R. 9; S.C. App. Ct. R. 404; Tenn Sup. Ct. R. 19; Tex. R. Gov. Admission XIX; Utah S. Ct. R. Prof. Prac. 11-302; Vt. R. Civ. P. 79.1(e) & Vt. R. Crim. P. 44.2(d) & Vt. R. App. P. 45.1(e) & Vt. R. Fam. Proc. 15(e); Va. Code 54.1-3900; Wash. Admission R. 8(b); D.C. Ct. App. R. 49(c)(7).   This model incorporates all of the common requirements and supplements them to broaden the court’s ability to assess the existence of any dangers to third parties from lawyers who have a record of problems with in complying with disciplinary or court rules.

    (e) No explicit counterpart in existing rules, though arguably implicit..

    (f)        No explicit counterpart in existing rules, though arguably implicit. See Enquire Printing & Publishing Co v. O’Reilly, 477 A.2d 648, 651 (Conn. 1984) ("[a] litigant’s request to be represented by counsel of his choice, when freely made, should be respected by the court, unless some legitimate state interest is thwarted by admission of the out-of-state attorney"); In re Evans, 524 F.2d 1004, 1007 (5 th Cir. 1975) (admission to bar of a state creates presumption that attorney is entitled to admission pro hac vice in federal court, absent showing of cause for denial of admission); Schlumberger Technologies, Inc. v. Wiley, 113 F.3d 1553, 1558-60 (11 th Cir. 1997) (same); State ex rel. H.K. Porter Co. v. White, 386 S.E.2d 25, 26 (W. Va. 1989) (where requirements of pro hac vice rule met, applications for admission ordinarily should be granted).

    (g) A number of states impose fees on lawyers admitted pro hac vice. Ala R. Gov. Admission, R. VII(D); Alaska R. Civ. P.. 81(a)(2); Calif. R. Ct. 983(b); Del. Sup. Ct. R. 71(b); Haw. R. Ct. 1.9; Idaho St. Bar Comm’n R. 222; Ind. R. Admission & Discip. R. 3, § 2; Mont. Admission R. § IV(D); Nev Sup. Ct. R. 42; N.D. R. Ct. 11.1; S.C. App. Ct. R. 404 (court may waive); Utah S. Ct. R. Prof. Prac. 11-302; D.C. Ct. App. R. 49(c)(7). This model follows that approach. See Comment [4].

    (h) Explicit in some rules, probably implicit in all.

    (i)        No explicit counterpart in any existing rule, though consistent with common and unchallenged practice. Restatement (Third) of the Law Governing Lawyers § 3, cmt e. (Perm. Vol. 2000) ("[a]ctivities in contemplation of such admission are . . . authorized, such as investigating facts or consulting with the client within the jurisdiction prior to drafting a complaint and filing the action."); ABA Commission on Evaluation of the Rules of Professional Conduct, Prop. Model Rule 5.5(b)(1) & cmts. 3-4 (Nov. 27, 2000); Cf. Shapiro, Lifschitz & Schram, P.C. v. Hazard, 24 F.Supp.2d 66, 82 (D.D.C. 1998) (retainer agreement for California litigation not unlawful merely because case not yet filed and pro hac vice admission not obtained prior to agreement).

    (j)        No explicit counterpart in any existing rule, but consistent with common and unchallenged practice and supported by case law. Spanos v. Skouras Theatres Corp., 364 F.2d 161, 170 (2d Cir. 1966) (en banc; per Friendly, J.; alternate holding) (party with federal claim or defense has constitutional right under Fourteenth Amendment privileges and immunities clause to engage out-of-state lawyer to collaborate with an in-state lawyer and give out-of-court advice on the matter in the forum state); Fought & Co. v. Steel Engineering & Erection, Inc., 951 P.2d 487 (Haw. 1998) (party’s regular out-of-state counsel, who worked with counsel of record. and directly advised client on litigation did not engage in unauthorized practice in forum state); Condon v. McHenry, 76 Cal. Rptr. 2d 922 (Cal. Ct. App. 1998) (same); Brooks v. Volunteer Harbor No. 4, 123 N.E. 511 (Mass. 1919) (Maine lawyer did not engage in unauthorized practice when summoned by client to Massachusetts where Maine lawyer selected and worked with Massachusetts lawyer to prosecute lawsuit). But see Spivak v. Sachs, 211 N.E.2d 329, 331 (N.Y. 1965) (California lawyer did engage in unauthorized practice when summoned to New York to advise client also represented by locally admitted lawyers on Connecticut child custody proceeding and related negotiations), criticized by Restatement, § 3, cmt. e & Reporter’s Note.

    (k) No explicit counterpart in any existing rule, but consistent with common practice and supported by some case law. Cowen v. Calabrese, 41 Cal. Rptr. 441, 442 (Cal. Ct. App. 1964) (portion of services performed in Illinois after client visit there treated as unassailable, even though lawyer then came to California to continue those services); Lindsey v. Ogden, 406 N.E.2d 701 (Mass. Ct. App. 1980) (New York lawyer did not engage in unauthorized practice by coming to Massachusetts to oversee execution of will by Massachusetts client whose estate he had planned in his New York office); In re Waters, 447 P.2d 661, 664 (Nev. 1968) (correspondence between Texas attorney, now residing but not yet admitted in Nevada, and California prisoner about latter’s California legal problems not unauthorized practice, because lawyer could properly have corresponded from Texas); Westcott v. Baker, 85 A. 315 (N.J. 1912) (New Jersey lawyer could recover for work done in New Jersey on corporate reorganization and real estate transfer in North Carolina); El Gemayel v. Seaman, 533 N.E.2d 245,248-49 (N.Y. 1988) (Lebanese lawyer, residing in D.C., who assisted New York client in recovering child abducted to Lebanon did not engage in unauthorized practice by reporting to client by phone on progress of representation; other services rendered in Lebanon or in states other than New York). But see Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 70 Cal. Rptr. 2d 304, 309, 949 P.2d 1, 6 (Cal. 1998) ("one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means") (dictum). Yet even Birbrower recognized that the lawyer could recover for work done in New York (where the lawyer was admitted), at least so long as the lawyer was not then in communication with California. Id. at 307, 949 P.2d at 12-13.

    Notwithstanding the Birbrower dictum, the limitation expressed in this model rule is arguably required by constitutional limits on territorial scope of a state’s power. Condon v. McHenry, 64 Cal. Rptr. 2d 789, 793 (Cal. Ct. App. 1997), vacated, 76 Cal. Rptr. 2d 176 (Cal. 1998) (doubting "that the legislature is authorized to prevent an unlicensed person in New York or Zurich from plying California law or transmitting legal communications to anyone within the state, so long as the unlicensed person remains outside the state."); Bigelow v. Virginia, 421 U.S. 809, 824 (1975) (state may not prohibit its citizens from traveling to other states to obtain services lawful there, even if unlawful in their home state; abortion). See also Restatement § 3, cmt. e (practice of this sort "clearly permissible"). Regardless of constitutional limitations, it would be an extreme breach of interstate comity for a forum state to impose penal sanctions—discipline, fee forfeiture, or criminal penalties—on a lawyer engaging in practice fully authorized by the laws of the state in which the lawyer acted.

    (l)        No counterpart in existing rules. A California statute now permits what amounts to pro hac vice admission by any arbitrator if the attorney certifies a lack of regular California connections. Calif. Code Civ. Proc. § 1282.4(b)-(c).

    (m) No explicit counterpart in existing rules, though consistent with common and unchallenged practice. See Restatement § 3, cmt. e ("A lawyer who is properly admitted to practice in a state with respect to litigation pending there, either generally or pro hac vice, may need to conduct proceedings and activities ancillary to the litigation in other states, such as counseling clients, dealing with co-counsel or opposing counsel, conducting depositions, examining documents, interviewing witnesses, negotiating settlements, and the like. Such activities incidental to permissible practice are appropriate and permissible."); ABA Commission on Evaluation of the Rules of Professional Conduct, Prop. Model Rule 5.5(b)(1) & cmt. 3 (Nov. 27, 2000).

    [1] No note.

    [2] Paciulan v. George, ___ F.3d ___, 2000 WL 1528604 (9 th Cir. Oct. 17, 2000) (state may deny its own residents who are not locally admitted the right to practice pro hac vice).

    [3] No note.

    [4] No note.

    [5] These are routine procedural standards. They have not been explicitly applied to pro hac vice practice because denials of pro hac vice admission have been rare. But even if denials remain rare, any that occur should be attended by fair procedures.

    [6] An express presumption in favor of admission and a requirement to state reasons for any denial protect against possible arbitrariness that an unconstrained discretionary standard might permit. Reliance on such a discretionary procedure has its troubling aspects. It is not so long ago that bar admission requirements were utilized in the South to obstruct access to the courts by blacks asserting civil rights claims, claims local attorneys were afraid or unwilling to assert. Comment, Retaining Out of State Counsel: The Evolution of a Federal Right, 67 Colum. L. Rev. 731, 734-35 (1967) (discussing problem); Note, Attorneys: Interstate and Federal Practice, 80 Harv. L. Rev. 1711, 1722-23 (1967) (same).

    [7] ABA Commission on Evaluation of the Rules of Professional Conduct, Prop. Model Rule 5.5(b)(2)(i) & cmt. 4 (Nov. 27, 2000). Nine states provide special procedures for admission of in-house counsel. See Carol A. Needham, The Multijurisdictional Practice of Law and the Corporate Lawyer: Rules for a New Generation of Legal Practice, 36 S. Tex. L. Rev. 1075, 1085 (1995). Of those, one (Minnesota) provides in-house lawyers only with a one-year grace period before they need local licensure. Id. at 1086-87. Even where there is no express special authorization for in-house practice, the unauthorized practice rules are rarely enforced against in-house lawyers. See, Mary C. Daly, Resolving Ethical Conflicts in Multijurisdictional Practice -- Is Model Rule 8.5 the Answer, an Answer, or No Answer at All?, 36 S. Tex. L. Rev. 715, 728-31 (1995).

    [8] ABA Commission on Evaluation of the Rules of Professional Conduct, Prop. Model Rule 5.5(b)(ii) & cmt. 4 (Nov. 27, 2000); Appell v. Reiner, 204 A.2d 146 (N.J. 1964) (where New York lawyer had preexisting relationship to New Jersey client on New York estate matters and where client’s corporation had intertwined indebtedness to New York and New Jersey creditors, not unauthorized practice for lawyer to perform work re New Jersey debts in New Jersey); In Re Estate of Waring, 221 A.2d 193 (N.J. 1966) (where New Jersey decedent and her husband had preexisting relationship with New York attorney regarding New York business affairs, not unauthorized practice for attorney to handle federal tax and other matters for estate, which was also represented by New Jersey counsel); Lamb v. Jones, 202 So.2d 810 (Fla. Dist. Ct. App. 1967) (lack of local admission would not preclude South Carolina attorney from recovering for services rendered to his sister in Alabama and Florida to protect her rights as recipient of gifts and bequests; fees claimed denied or limited on other grounds); Fought & Co. v. Steel Engineering & Erection, Inc., 951 P.2d 487, 497 (Haw. 1998) ("a commercial entity that serves interstate and/or international markets is likely to receive more effective and efficient representation when its general counsel, who is based close to its home office or headquarters and is familiar with the details of its operations, supervises the work of local counsel in each of the various jurisdictions in which it does business"); Restatement § 3, cmt. e (factors to be considered in determining whether out-of-state lawyer’s representation permissible include "whether the lawyer’s client is a regular client of the lawyer").

    [9] ABA Commission on Evaluation of the Rules of Professional Conduct, Prop. Model Rule 5.5(b)(ii) & cmt. 5 (Nov. 27, 2000); Spanos v. Skouras Theatres Corp., 364 F.2d 161, 170 (2d Cir. 1966) (interest in having assistance of out-of-state counsel with specialized expertise in federal law supports constitutional right to obtain such assistance); In re Opinion 33 of Comm. on Unauthorized Practice of Law, 733 A.2d 478, 489 (N.J. 1999) (client should be permitted to engage out-of-state with special expertise and experience not available from in-state counsel).

    [10] Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 70 Cal. Rptr. 2d 304, 309, 949 P.2d 1, 6 (Cal. 1998) ("[t]he primary inquiry [determining whether out-of-state lawyer engaged in practice ‘in California’] is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations" (emphasis added)); Condon v. McHenry, 76 Cal. Rptr. 2d 922, 927 (Cal. Ct. App. 1998) (reading Birbrower to hold that the object of the statute prohibiting unauthorized practice was solely to protect California clients—individual residents and companies with their principal places of business in California); Spivak v. Sachs, 211 N.E.2d 329, 331 (N.Y. 1965) (unauthorized practice law protects "local citizens ‘against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work"); Ill. St. Bar Ass’n, Op. on Prof. Cond. 94-05, 1994 WL 904188, at *2 (1994) (not unauthorized practice for out-of-state lawyer to represent out-of-state client in transaction with Illinois party, even if part of work done in Illinois; "the Committee does not believe it is necessary for Illinois to protect a New York client in a multi-state transaction from representation by a New York lawyer") (dictum).

    [11] Some existing rules specify a fixed maximum number of pro hac vice appearances and some specify no standard for what constitutes impermissible regular practice. This model rule relies on a qualitative standard recognizing that some types of appearance have stronger justifications or present fewer concerns than others.

    [12] See comment j.

    [13] See comment i.

    [14] See comment k.

    [15] There is some authority that representation in an arbitration is not the practice of law. Williamson, P.A. v. John D. Quinn, 537 F. Supp. 613 (S.D.N.Y. 1982). Birbrower holds otherwise. 70 Cal. Rptr. 2d at 316, 949 P.2d at 12-13. This model rule would vary the requirement for admission depending on whether it is necessary to protect a local resident and on whether the arbitration is intended to be governed by legal standards.

    [16] See comment m.

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