ABA Section of Litigation

Model Rule on Pro Hac Vice Admission
July, 2001

I. Admission in Pending Litigation Before a Court or Agency

A. Definitions

1. 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 District Court or of the highest court of any state, territory, or insular possession of the United States or of the District of Columbia.

2. An out-of-state attorney is " eligible" for admission pro hac vice if that attorney (a) does not reside in this state, and (b) is not regularly employed at an office in this state. An out-of-state attorney who is ineligible, becomes eligible once he or she has filed an application for admission to the bar of this state, and the application has not been pending more than one year.

3. A " client" is a person or entity for which the out-of-state attorney has rendered services or by whom the attorney has been retained prior to the attorney's performance of services in this state.

4. A " proceeding" includes a case filed in any court of this state or a proceeding before an administrative body in this state, but does not include an arbitration, mediation or other alternative dispute resolution ("ADR") (1) procedure.

5. " This state" refers to the [ state or other jurisdiction promulgating this rule]. This rule does not govern proceedings before a federal court or federal agency located in this state unless that body adopts this rule.

B. Authority of Court or Agency To Permit Appearance By Out-Of-State Attorney and In-State Lawyer's Duties Generally

1. Court Proceeding. A court of this state may, in its discretion, admit an eligible out-of-state attorney, who has been retained to appear in a particular proceeding pending before such court, to appear as counsel in that proceeding pro hac vice.

2. Administrative Agency Proceeding. If practice before an agency of this state is limited to lawyers, the agency may adopt standards to admit eligible out-of-state attorneys who have been retained to appear in a particular agency proceeding to appear as counsel in that proceeding pro hac vice. If an agency elects to adopt a pro hac vice procedure, the agency shall use the same standards and procedures as the courts of this state.

3. In-State Lawyer's Duties. When an out-of-state attorney appears for a client in a proceeding pending in this state, either in the role as an attorney of record, or in an advisory or consultative role, the in-state lawyer remains responsible to the client and remains responsible for the conduct of the proceeding before the court or agency. It is the duty of the in-state lawyer to advise the client 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 attorney.

C. Application Procedure

1. Verified Application. An eligible out-of-state attorney seeking to appear in pending litigation as counsel pro hac vice shall file a verified application with the court where the litigation is filed. The application shall be served on all parties who have appeared in the case and the [ lawyer regulatory authority (2) ]. The application shall include proof of service. The court has the discretion to grant or deny the application after expiration of a 30-day notice period.

2. Objection to Application. The [ lawyer regulatory authority] may file within the 30-day notice period an objection to the application or seek the court's imposition of conditions to its being granted. The [ lawyer regulatory authority] must file with its objection a verified affidavit containing or describing information establishing a factual basis for the objection. The [ lawyer regulatory authority] may seek denial of the application or modification of it. If the application has already been granted, the [ lawyer regulatory authority] may move that the pro hac vice admission be withdrawn.

3. Standard for Admission and Revocation of Admission. The courts and agencies of this state have discretion as to whether to grant applications for admission pro hac vice. An application ordinarily should be granted unless the court or agency finds reason to believe that such admission:

a. may be detrimental to the prompt, fair and efficient administration of justice,

b. may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent,

c. 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

d. the applicant has engaged in such frequent appearances as to constitute regular practice in this state.

4. Revocation of Admission. Admission to appear as counsel pro hac vice in a suit may be revoked for any of the reasons listed in Section I.C.3 above.

D. Application

1. Required Information. An application shall state the information listed on Appendix A to this rule. The applicant may also include any other matters supporting admission pro hac vice.

2. Application Fee. An applicant for permission to appear as counsel pro hac vice under this rule shall pay a non-refundable fee as set by the [ lawyer regulatory authority] at the time of filing the application.

E. Authority of the [ Lawyer Regulatory Authority] and Court: Application of Ethical Rules, Discipline, Contempt and Sanctions

1. Authority Over Attorney.

a. Upon submission of an application for admission pro hac vice, an applicant submits to the authority of the courts and the [ lawyer regulatory authority] of this state for all conduct relating in any way to the proceeding in which applicant seeks to appear. The applicant submits to this authority for all the applicant's conduct (i) within the state while the proceeding is pending or (ii) arising out of or relating to the proceeding. An applicant subject to the courts' and the [ lawyer regulatory authority's] authority may be disciplined in the same manner as an in-state lawyer.

b. The courts' and [ lawyer regulatory authority's] authority includes, without limitation, the courts' and [ lawyer regulatory authority's] rules of professional conduct, rules of discipline, contempt and sanctions orders, local court rules, and court policies and procedures.

2. Familiarity With Rules. An applicant shall become familiar the rules of professional conduct, rules of discipline of the [ lawyer regulatory authority], local court rules, and policies and procedures of the court before which the applicant seeks to practice.

II. Out-of-State Proceedings, Potential In-State and Out-of-State Proceedings, and All ADR

A. In-State Ancillary Proceeding Related to Pending Out-of-State Proceeding. In connection with proceedings pending outside this state, an out-of-state attorney admitted to appear in that proceeding may render in this state legal services regarding or in aid of such proceeding.

B. Consultation by Out-of-State Attorney

1. Consultation with In-State Lawyer. An out-of-state attorney may consult in this state with an in-state lawyer concerning the in-state's lawyer's client's pending or potential proceeding in this state. The out-of-state attorney may play an advisory or consultative role, but the in-state lawyer remains responsible to the client and shall advise the client 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 attorney.

2. Consultation with Potential Client. At the request of a person in this state contemplating a proceeding or involved in a pending proceeding, irrespective of where the proceeding is located, an out-of-state attorney may consult in this state with that person about that person's possible retention of the out-of-state lawyer in connection with the proceeding.

C. Preparation for In-State Proceeding. On behalf of a client in this state or elsewhere, the out-of-state attorney may render legal services in this state in preparation for a potential proceeding to be filed in this state, provided that the out of state attorney reasonably believes he is eligible for admission pro hac vice in this state.

D. Preparation for Out-of-State Proceeding. In connection with a potential proceeding to be filed outside this state, an out-of-state attorney may render legal services in this state for a client or potential client located in this state, provided that the out of state attorney is admitted or reasonably believes he is eligible for admission generally or pro hac vice in the jurisdiction where the proceeding is anticipated to be filed.

E. Services Rendered Outside This State for In-State Client. An out-of-state attorney may render legal services while the attorney is physically outside this state when requested by a client located within this state in connection with a potential or pending proceeding filed in or outside this state.

F. ADR Procedures. An out-of-state attorney may render legal services to prepare for and participate in an ADR procedure regardless of where the ADR procedure is expected to take or actually takes place.

G. Not the Unauthorized Practice of Law. The foregoing rendition of legal services shall not be deemed the unauthorized practice of law by the out-of-state attorney, even if ultimately no proceeding is filed or if admission pro hac vice is later denied.

H. No Solicitation. Nothing in this rule authorizes out-of-state attorneys to solicit, advertise, or otherwise hold themselves out in publications directed solely to this state as available to assist in litigation in this state.

 

APPENDIX A

The out-of-state attorney application shall include:

1. the applicant's residence and business address;

2. the name, address and phone number of each client sought to be represented;

3. the courts before which applicant has been admitted to practice and the respective period(s) of admission;

4. whether the applicant (a) has been denied admission pro hac vice in this state, (b) had admission pro hac vice revoked in this state, or (c) has otherwise formally been disciplined or sanctioned by any court in this state. If so, specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings;

5. whether any formal, written disciplinary proceeding has ever been brought against the applicant by a disciplinary committee in any other jurisdiction within the last five (5) years and, as to each such proceeding: the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated and finally concluded; the style of the proceedings; and the findings made and actions taken in connection with those proceedings;

6. whether the applicant has been held formally in contempt or otherwise sanctioned by any court in a written order in the last five (5) years 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 of the contempt order or sanction, caption of the proceedings, and the substance of the court's rulings (a copy of the written order or transcript of the oral rulings shall be attached to the application);

7. the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this state within the preceding two years; the date of each application; and the outcome of the application;

8. an averment as to the applicant's familiarity with the rules of professional conduct, rules of discipline of the [ lawyer regulatory authority], local rules and court procedures of the court before which the applicant seeks to practice; and

9. the name, address, telephone number and bar number of an active member in good standing of the bar of this state who will sponsor the applicant's pro hac vice request. The bar member preferably will be the attorney of record for the client(s) the applicant seeks to represent.

10. Optional: the applicant's prior or continuing representation in other matters of one or more of the clients the applicant proposes to represent and any relationship between such other matter(s) and the proceeding for which applicant seeks admission.

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

 

Endnotes:

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1. Reference to ADR is comprehensive; it includes contractual arbitration, voluntary arbitration, mediation, and all other forms of alternative dispute resolution, whether arranged by the parties otherwise.

2. The entity that regulates the conduct of attorneys should be mentioned by name in the rule wherever the term "lawyer regulatory authority" is included in this model rule.


 

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