New Pro Hac Vice Rule Increases Scrutiny of Non-Resident Lawyers

Limiting Pro Hac Vice Appearances

The ABA amended the Model Rules of Professional Conduct governing multijurisdictional practice by lawyers in August 2002. ABA Model Rule 5.5 addresses lawyers temporarily licensed in another jurisdiction practicing law.

Many states have adopted rules that are identical or similar to ABA Model Rule 5.5. Twelve states specifically limit the number of pro hac vice appearances. Those states are Alabama, Arkansas, District of Columbia, Florida, Michigan, Mississippi, Montana, Nevada, New Mexico, Ohio, Rhode Island, and Virginia.

With the Arkansas rule overhaul, which went into effect on January 1, 2017, it limits to three the number of appearances a non-resident lawyer can make each year. "I thought it was interesting that the rule specifically stated that the court shall deny if the attorney is pro hac vice three times a year. That is more stringent than some other states," says Kenneth M. Klemm, New Orleans, LA, cochair of the ABA Section of Litigation's Pretrial Practice & Discovery Committee.

States naturally want lawyers who are competent in the local laws. "The states want to control who can come in and practice before the courts in that state. If you appear pro hac vice on regular basis, the state wants you to get admitted," Klemm adds. Arkansas's new rule limiting the number of appearances means attorneys "can't become a member of the bar by appearing pro hac vice," says Robert J. Will, St. Louis, MO, cochair of the Section of Litigation's Pretrial Practice & Discovery Committee.

Denying Pro Hac Vice Admission for Good Cause

The requirements for pro hac vice admission set out in the amended Arkansas rule permits the trial court to review the non-resident attorney. The trial court may deny the motion if it finds other good cause exists. "This provision isn't inconsistent with other state rules for pro hac vice admission. There is an inherent ability for the court and the judge to question the lawyer to make sure the lawyer is competent and reputable before granting admission," states Klemm.

Most states rely upon the courts' inherent authority to determine who gets admitted. "I think what is unique here is that the Arkansas Supreme Court set it out in the rule," notes Klemm. "By setting the provision out in the rule, it makes it clear in Arkansas that the judge has the authority to not admit a lawyer pro hac vice. If the lawyer fulfills all the other requirements with the court, and the court denies the motion, it appears that the attorney has no grounds to challenge the judge's decision to examine the attorney," he argues.

Allowing the trial court to go beyond its inherent authority to decide who practices to allowing courts to look closely at the lawyer, at least one Section leader finds surprising. "The good-cause rule is an open-ended standard. I am not aware of other jurisdictions having that kind of rule," notes Will.

"It could pose potential problems in application, depending on the judge and what that judge thinks about good cause. I am not aware of other jurisdictions where the judge can examine the lawyer and that they get that kind of latitude to make that determination. Good cause is in the eye of the beholder," states Will.

Pro Hac Vice Rules Sometimes a Form of Protectionism

Arkansas lawyers are not the only group protected by pro hac vice rules. "There are multiple reasons for enacting some controls as to who you allow to be admitted before the courts," says Klemm. "The rule protects the clients to ensure they are getting competent representation in the state. It protects the courts, ensuring counsel knows the laws," he adds.

"A critic could call it a form of protectionism. You are protecting the lawyers who are admitted in the state. On the other side of the coin you are protecting the clients to ensure they are getting competent representation," concludes Klemm.

Protectionism remains one reason for pro hac vice rules though. "Pro hac vice rules are often protectionist legislation, they are protecting members of the state bar from inordinate amount of competition. The local lawyers don't want lawyers from out of jurisdiction practicing without taking the bar exam," notes Will.

"I don't think this rule would dissuade attorneys from getting admitted pro hac vice. If the rule is used liberally to exclude people from coming in then it would dissuade people. The rule is new and there is no track record, and it is too early to tell," concludes Will.

Christina M. Jordan is immediate past chair of Litigation News.

Keywords: pro hac vice, model rules, non-resident attorney, non-resident lawyer

Related Resources

• Rule XIV of the Rules Governing Admission to the Arkansas Bar, 2016 Ark. 354 (Oct. 20, 2016).
• ABA Model Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law.
• Comparison of ABA Model Rule for Pro Hac Vice Admission with State Versions and Amendments Since August 2002, ABA Center for Professional Responsibility CPR Policy Implementation Committee (Jan. 26, 2017).

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