Pro hac vice admission is a valuable tool for an attorney seeking to practice in a state in which she is not licensed. A Latin term meaning “for this turn,” pro hac vice is a relatively simple process, requiring only a sponsor attorney and that the out-of-state attorney seeking admission be in good standing in her home state. However, pro hac vice admission is not without risks, as illustrated by a recent New Jersey case.
In Pender v. Beiter, a New York attorney was admitted pro hac vice on the motion of a New Jersey attorney, based upon the NY attorney’s pre-existing relationship with the client and his good standing in his home state of New York. In compliance with a local rule that stipulates the contents of a pro hac vice order, the NY attorney stipulated that he would comply with local rules and would “have all pleadings, briefs and other papers filed with the court signed by an attorney of record authorized to practice in New Jersey.” The order further cautioned that noncompliance would constitute grounds for removal.
Opposing counsel subsequently reported to the judge that the NY attorney had signed pleadings, discovery notices, and other court papers for over a year; he also noted that certain discovery requests propounded by the NY lawyer evidence his unfamiliarity with local law and lack of oversight by an appropriate supervising attorney licensed in New Jersey. Despite the NY attorney’s apology and request to refile the papers with signatures by the sponsoring New Jersey lawyer, the Court removed the NY attorney from the case.
The attorney’s firm was permitted to stay on the case, with the proviso that any other attorneys admitted pro hac vice be supervised by local counsel.
This case contains many valuable lessons, both for those attorneys who are admitted pro hac vice, and for the local counsel tasked with supervising them. Some things to remember:
Tips for the pro hac vice attorney:
- Get admitted early. Courts have rendered varying decisions regarding whether an attorney’s late-occurring pro hac vice admission retroactively legitimizes the legal work performed prior to the admission. Be safe and find local counsel when you first take the case.
- Collaborate. To make sure your legal work is compliant with the foreign jurisdiction’s rules, have local counsel review the legal work in earnest rather than simply acting as a mail drop
- Protect yourself against lost fees. Rules about fee sharing are not always clear cut, and clients will often seek to avoid payment obligations if the attorney-client relationship sours. To that end, in your engagement letter, include a severability provision, stating that the invalidity of some portions of the fee agreement will not void the entire contract. Keep a complete record of hours worked too.
Tips for local counsel
- Check out your co-counsel. Most pro hac vice applications require the attorney seeking admission to certify that she is a member of the bar in good standing in her home state and that no disciplinary proceedings are pending against her. While local counsel are not necessarily required to verify that the pro hac vice applicant’s certification is accurate and in good faith, it can’t hurt to do so and could prevent a sticky situation down the road. Verifying that counsel has malpractice insurance is also a good idea.
- Check conflicts. Agreeing to serve as local counsel may conflict your firm out of future representation.
- Define the scope of representation. Local counsel’s role can range from substantial joint responsibility with pro hac vice counsel for all decisions and activities to the passive role of a mere mail drop. Clear definition of roles will prevent duplication of effort, and clients will respect this. This also helps limit exposure in a case in which local counsel’s duties are clearly and expressly limited. An engagement letter should do the trick.
- Remember the rules. The rules apply regardless of your level of involvement in a case. Specifically, be wary of MRPC 5.1(c)(1), which holds a lawyer responsible for knowing ratification of another lawyer’s violation of the Rules, as well as MRPC 1.5(e), which cautions that you may divide fees with an attorney not in your firm as long as the fee is proportionate to the respective services rendered and the client agrees to the arrangement, all in writing. Also, in reviewing/signing pleadings, keep in mind Federal Rule of Civil Procedure 11, which has analogs in many states and provides that by presenting a pleading an attorney is certifying that to the best of his “knowledge, information, and belief” it is well grounded.
These tips will help you be a pro at pro hac vice admission.