The risks in undertaking pro hac representation apply equally to local counsel and out-of-state lawyers, as Rule 11 contains no safe harbor for local counsel. Thus, by signing a paper prepared by pro hac counsel, local counsel certifies that to the best of his or her knowledge, “formed after an inquiry reasonable under the circumstances,” (1) the paper is not being presented for any improper purpose; (2) its substance is warranted by existing law or a non-frivolous argument for its modification; (3) the factual contentions have or likely will have evidentiary support; and (4) the denials of factual contentions are warranted.
Failure to comply with these requirements can be sanctionable conduct. In Val-land Farms Inc. v. Third National Bank in Knoxville, the Sixth Circuit upheld monetary sanctions against local counsel who signed a complaint containing frivolous allegations drafted by pro hac counsel. The court rejected local counsel’s argument that his reliance on pro hac counsel’s research and representations constituted “reasonable inquiry.” Many cases are to the same effect.
Often, pro hac counsel is the lead attorney. In that event, he or she may take responsibility for tactical and strategic decisions, client communications, and document review. It is a practical, cost-savings measure that makes sense, but the ABA Model Rule on Pro Hac Vice Admission (adopted in whole or in part in many states) cautions, at I.1.B.C., that
[w]hen an out-of-state lawyer appears for a client in a proceeding pending in this state . . . the in-state lawyer . . . remains responsible to the client and responsible for the conduct of the proceeding. . . . It is the duty of the in-state lawyer to 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 lawyer.
This mandates an expenditure of funds and degree of substantive involvement—including ongoing direct communication with the client—that pro hac counsel and the client, understandably, would rather avoid. Yet, local counsel stands exposed to sanctions for misguided actions of pro hac counsel, taken at the client’s direction, of which local counsel was ignorant.
Another risk that local counsel run is in-state assistance to out-of-state counsel (for example, in conducting depositions) before the motion for admission has been granted. While some states authorize limited actions by out-of-state counsel in that instance, others do not. At least one court has imposed sanctions on local counsel in that circumstance for aiding in the unauthorized practice of law.
The principal concerns of counsel applying for pro hac vice admission should be absolute adherence to the requirements for admission in that jurisdiction and recognition that he or she will be held to full knowledge of the rules of procedure as locally applied. This may sound easier than it is. Many states require that an applicant verify whether he or she has ever been suspended, disbarred, or “otherwise disciplined,” and if so, describe the facts. Some lawyers omit these details and later seek to excuse them. Others may forget prior instances of discipline, especially if they seemed trivial at the time—an oral admonition by a court, for example, rather than imposition of monetary sanctions. Full disclosure is essential in order to comport with ethical standards and avoid later repercussions.
As for knowledge of the rules, imagine the burden on a California lawyer litigating cases simultaneously in five or six jurisdictions. The burden is even greater when considering that some jurisdictions’ local rules conflict with those of other jurisdictions.
Fittingly, just as pro hac vice is Latin, another Latin phrase should be the watchword for parties to a motion for admission pro hac vice: caveat emptor.
Charles S. Fax is an associate editor for Litigation News.
Keywords: pro hac vice, Rule 11, pro hac counsel, ABA Model Rule on Pro Hac Vice Admission
Corp. of the Catholic Archbishop of Seattle v. the Nat’l Catholic Risk Retention Grp., Inc., No. 2:17-cv-364 (W.D. Wash.).
Fed. R. Civ. P. 11.
Val-land Farms Inc. v. Third Nat’l Bank in Knoxville, 937 F.2d 1110 (6th Cir. 1991).
ABA Model Rule on Pro Hac Vice Admission.
State Implementation of ABA MJP Policies (Apr. 20, 2016), available at http://bit.ly/aba-mjp-by-state.
Curb Records v. Adams & Reese LLP, 1999 U.S. App. LEXIS 39003 (5th Cir. Nov. 29, 1999).
In re Anonymous, 932 N.E. 2d 1247 (Ind. 2010).
231 Pa. Code R. 1012.1, Admission Pro Hac Vice. Motion. Content., available at http://bit.ly/pa-code-1012-1.