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ABA Tort & Insurance Practice Section International Association of Defense Counsel Re:Model Pro Hac Vice Rule - Center for Professional Responsibility


TO: ABA Commission on Multijurisdictional Practice
FROM: ABA Tort & Insurance Practice Section
International Association of Defense Counsel
DATE: January __, 2002
RE: Model Pro Hac Vice Rule

TIPS and IADC submitted a proposed Model Pro Hac Vice Rule to this Commission at the Mid-Year Meeting in San Diego. The ABA Litigation Section submitted its own version of such a rule at the Annual Meeting in Chicago, which it has since revised. The Commission’s Interim Report indicated approval of the concept. We thank the Commission for that approval and now submit a revised version of our own, reflecting discussions with the Litigation Section and the deliberations of this Commission. We particularly urge the Commission’s adoption of comments to any proposed rule, along the lines contained in our proposal.

Comparison of Proposals

As far as the substance of the black letter rule itself is concerned, the revisions to the two draft rules have eliminated all significant differences. We have made inquiries about possible efforts to harmonize the drafting styles, but the Litigation Section has expressed no interest in such efforts. So the Commission will have to decide which style it prefers. If the Litigation Section’s is selected, it can consider whether to adopt either of the two minor points where we have provisions not found in the Litigation Section’s proposal.

Our section (b) does have some minor procedural protections for applicants:

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.

If the Litigation Section’s version is used, this could be added as a free-standing paragraph in its "Application Procedure" subdivision.

Our subsection (d)(6) requires disclosure of certain information about other lawyers in the applicant’s firm. We would have no objection to the omission of such a provision, but thought that some courts might want the information. If the Litigation Section’s version is used, this could be added to its Appendix A.

The important difference between the two proposals are the comments to the rule: we have comments and the Litigation Section has none. In our discussions, the Litigation Section has ever indicated any disagreement with the substance of our comments or with the concept of having comments. It has simply seemed to regard them as unnecessary and not worth the trouble to address. We respectfully disagree, and point out that our comments could accompany the Litigation Section’s black letter rule as readily as they accompany ours.

Utility of the Comments to the Proposed Rule

We think the comments will be useful in the administration of the rule. In particular, the comments are essential to delineation of the qualitative standard we advocate for determination of when the lawyer is engaged in regular practice which should lead to denial of admission pro hac vice. The Litigation Section proposal likewise employs regular practice as an exclusionary criterion, but makes no effort to delineate the intended meaning. We do not think that this sort of delineation can be made as effectively in black letter as in comments.

For example, our comment [13] deals with Commissioner Gillers’ concerns about efforts to create a "virtual presence" in the host state, through advertising and other forms of marketing, coupled with the use of telecommunications in the actual delivery of services. But defining when such a "virtual presence" should be found is difficult. It is doubtful, as a matter of constitutional law, that interstate marketing by out-of-state lawyers could be completely suppressed or admission pro hac vice denied in all matters where the retention grew out of such marketing. Nor does such a categorical restriction seem desirable as a matter of policy. Marketing directed to in-state lawyers seems entirely proper. Additionally, a lawyer with special qualifications to address a particular type of problem can surely call those qualifications to the attention of at least an occasional in-state resident known to have that type of problem. And these examples only begin to show the complexities of this issue. Accordingly, we simply make this a factor for the court to consider in determining whether the lawyer is engaged in regular practice in the host state.

Moreover, articulation of standards for use in the pro hac vice context is likely to have utility in addressing the more difficult issues presented by transactional practice, whether under existing statutes and common law or under whatever this Commission ultimately proposes with respect to such practice.