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Attorney E-Newsletter

July 2007

New Rules Establish Standardized Pro Hac Vice Procedures for Out-of-State Lawyers

The Supreme Court of Pennsylvania has created a uniform process for eligible out-of-state lawyers to apply for permission to participate in a particular case in the Commonwealth.

Separate orders to amend rules governing civil case procedures and attorney professional conduct were issued by the Supreme Court with the aim of establishing a standardized method for determining eligibility to practice in Pennsylvania as counsel pro hac vice — a legal term meaning “for this occasion.” The orders take effect Sept. 4. They are published as follows:

In addition to the new standards, the court also adopted a first-time-ever fee for pro hac vice admission, and designated the proceeds to go to the Interest On Lawyers Trust Account program, which funds civil legal services for Pennsylvanians who cannot afford to pay for those services. The fee applies to those practicing in the state’s trial and appellate courts. The fee is set at $100.00 for each case in which the attorney appears pro hac vice. The fee is not required if the client has been granted in forma pauperis status.

Even though a lawyer may be admitted to practice in another state, he or she must request permission to appear as a counsel of record in the Commonwealth if not licensed here. While Pennsylvania currently requires such a request to be filed, there have been no uniform statewide rules to govern an evaluation of the application or an admission fee. New revisions to Rule 1012.1 of the Rules of Civil Procedure set forth requirements for what the motion for admission pro hac vice must state, and also require that the sponsoring attorney enter an appearance in the matter, remain attorney of record, and appear in all proceedings (other than depositions), unless excused by the court. Such a motion must be granted unless the court finds good cause to deny it, several grounds for which are set forth in the rule.

“These rule amendments underscore the Judiciary’s desire to do as much as possible to encourage and foster administrative standardization in Pennsylvania’s Unified Judicial System,” Chief Justice of Pennsylvania Ralph J. Cappy said. “Implementing a statewide pro hac vice admission process is yet another important step in enhancing efficiency in our court system, and promoting a more equitable approach to addressing attorneys not licensed in Pennsylvania who wish to practice in the Commonwealth on a limited basis.”

The new rules were adopted with input from the IOLTA Board, Pennsylvania’s Board of Law Examiners, Pennsylvania Lawyers Fund for Client Security Board and the Civil Procedural Rules Committee.

Lawyer Discipline in the News

Lawyer disciplinary systems generally function beneath the radar of public attention, even in an era when they are increasingly public. Thus, it is a surprise to find several stories about sanctions for lawyer misconduct becoming high-profile news stories, even with the general public.

The biggest story, of course, is the disciplinary proceedings which resulted in an order of disbarment of Mike Nifong, former District Attorney of Durham County, North Carolina, for misconduct relating to the prosecution of three Duke University lacrosse players on rape charges which were subsequently dismissed. The hearing on the Nifong was, as one observer noted, probably the first attorney disciplinary proceeding ever televised on national cable channels, and the decision, rendered a day later on June 16, 2007, was a widely reported national news story.

The Nifong case has been widely and vigorously debated, and need not be recounted here. Two points, however, are worthy of mention.

First, observers familiar with the Pennsylvania disciplinary system were probably startled at the rapid pace at which the case unfolded, proceeding in barely two months from filing of the complaint to an order of disbarment. Disciplinary proceedings in North Carolina are conducted under rules very different from those of Pennsylvania. In North Carolina, the case is argued before and decided by a disciplinary committee, which has the power to actually impose discipline, subject to appeal to the state Supreme Court.

In contrast, disciplinary cases in Pennsylvania are heard by a Hearing Committee. The Pennsylvania rules provide that after the hearing, first Disciplinary Counsel, and then the respondent-attorney are given an opportunity to file briefs. The Hearing Committee then files a report containing findings of fact, conclusions of law, and its recommendation for action to the full Disciplinary Board. The Disciplinary Board can dismiss the case or impose private discipline, but if it concludes that public discipline such as suspension or disbarment is warranted, it in turn must file a report with the Supreme Court of Pennsylvania, and once again the parties have the opportunity to file briefs on exceptions to the Disciplinary Board’s findings. Public discipline such as disbarment and suspension can only be imposed by the Supreme Court of Pennsylvania. Thus, disciplinary proceedings in Pennsylvania take much more time than the Nifong case did in North Carolina, unless Disciplinary Counsel and the respondent-attorney stipulate to discipline upon consent.

Some commentators have claimed that the Nifong case “puts prosecutors on the firing line” for disciplinary action – stating or implying that prosecutors have to be more careful as unsuccessful prosecutions may subject them to disciplinary action. It should be noted that Nifong was charged with 32 different violations of the Rules of Professional Conduct and found guilty of violating 27 of them, based not just on the weakness of the case he brought, but on a broad range of misconduct including: making inappropriate statements to the media; knowingly withholding exculpatory evidence from the defense; and lying to investigators. This was a flagrant pattern of misconduct, far outside the scope of normal prosecutorial conduct and far more serious than just bringing a bad case. Lawyers in general, and prosecutors in particular, will probably not face serious discipline merely for bringing or proceeding with a marginal case. Lawyers who lie to investigators, however, almost certainly will.

The following note discusses the Rules of Professional Conduct that address the balance of the attorney’s competing duties to the client, opposing parties, and the courts.

Limits on Zealous Advocacy and Duties to Opposing Parties and the Courts

Generally speaking, the Pennsylvania Rules of Professional Conduct are mainly concerned with duties owed to clients, including duties of competence and diligence created by Rules 1.1 and 1.3.

The principal limitation on the duty of zealous representation is Rule 3.1, which states, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

Pennsylvania courts have used various definitions of the term “frivolous,” but in recent years have settled on a formulation set forth in Smith v. Com., Pennsylvania Bd. of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990), that a case is frivolous if it “lacks any basis in law or fact.” The Smith case adds,

The concept of frivolity should not be construed as disfavoring legitimate attempts to change existing law. Even where long-standing case law on a particular point is contrary to an appellant's point of view, there may be a reasonable basis for arguing for the re-evaluation of that law. [citation omitted] In this context a distinction must be made as to situations where the repetitive appeal is being sought to perpetuate a concededly discredited position.

Disciplinary prosecutions for violation of Rule 3.1 are fairly rare; the rule has been cited in only five published disciplinary cases since 2000, all of them complex cases involving violation of many other Rules of Professional Conduct as well. Discipline is often the least of the concerns of the lawyer who brings a questionable case or makes a dubious argument. It is much more likely that the lawyer would face sanctions under rules such as Rule 11 of the Federal Rules of Civil Procedure or Rule 1023.1 of the Pennsylvania Rules of Disciplinary Enforcement.

Particular Duties of Prosecutors

As the Nifong case illustrates, prosecutors have some distinct duties which go beyond those of lawyers representing clients. Rule 3.8 of the Pennsylvania Rules of Professional Conduct creates special duties of a prosecutor in a criminal case to:

  1. refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
  2. protect the right of the accused to counsel;
  3. refrain from seeking waivers of important protections from unrepresented accused persons;
  4. disclose to the defense evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense or sentence; and
  5. refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused, and exercise care to prevent others involved in the prosecution from doing so.

Comment 1 states that “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” From the Nifong case it became clear that a prosecutor is not merely a lawyer-advocate, but a public official charged with using the power of his office responsibly.

Other Lawyers in the News

The Nifong case got the headlines, but it wasn’t the only case in the news about lawyers behaving badly.

On May 7, Chicago lawyer William P. Smith, arguing a bankruptcy matter before Bankruptcy Judge Laurel Myerson Isicoff in Miami, Florida, bit off a lot more than he counted on when, in open court, he responded to the judge’s predictions as to the resolution of a matter by saying, “I suggest with respect, your honor, that you're a few french fries short of a Happy Meal in terms of what's likely to take place." (If this is suggested with respect, one must wonder how Mr. Smith addresses judges he doesn’t respect).

After reviewing the transcript, Judge Isicoff issued a rule to show cause why Attorney Smith should not be suspended from practice in the court. This was a serious matter, as Mr. Smith was in Florida on a pro hac vice basis, and if suspended he would have had to reveal that in any pro hac vice application he filed anywhere in the country. A hearing was held in which both Mr. Smith and the head of his firm expressed their profound apologies. The firm also lost the client, which retained other counsel.

In the end, Judge Isicoff accepted the apologies and discharged the rule, requiring Mr. Smith to take an online course in professionalism, but only after he downed a supersized Extra Value Meal of grilled crow, with a piping hot side of humble pie. Lesson learned: when dining at the food court of law, leave the sarcasm in the car.

Finally, we come to the case that gave a whole new meaning to the term “press a suit.” This would be the matter of Pearson v. Classic Cleaners, in which Roy Pearson, Jr., a District of Columbia lawyer and administrative law judge, sued Korean immigrants Soo and Jin Chung and their business, Classic Cleaners, for loss of a pair of pants he had brought to them for alterations. Pearson originally sought $67 million in damages (a demand later reduced to $54 million), a figure which he reached by aggregating a $1500 statutory penalty on a daily basis, along with various damages including weekly car rentals (as there was no other cleaner within walking distance of his home) and attorney fees for his time at a rate between $390 and $425 per hour. He argued that the Chungs had breached the Consumer Protection Act because they posted a sign which said “Satisfaction Guaranteed,” and his satisfaction had not been accomplished.

After a trial on the case, during which Mr. Pearson became emotionally overcome and left the courtroom, Judge Judith Bartnoff filed an opinion determining that Pearson had established no claim to any damages, stating, "A reasonable consumer would not interpret 'Satisfaction Guaranteed' to mean that a merchant is required to satisfy a customer's unreasonable demands or to accede to demands that the merchant has reasonable grounds to dispute." She dismissed all counts of the complaint. The case is not over; Pearson has filed for reconsideration and indicated he may appeal, and the Chungs have filed a petition seeking $83,000 in attorney fees. It has been reported that a disciplinary complaint has been filed, although no public information on this is available. Pearson’s reappointment to his judicial position, for which his term is expiring, is also in question.

Pearson may see himself as a blazer of new trails in consumer protection, or just to vent his frustration at the Chung’s breach of contract (or contracting of his breeches), but many have been slack-jawed at the level of his demands. After his dressing-down by Judge Bartnoff, he may be cuffed with attorney’s fees, loss of his position, and possibly discipline. It does not seem he will be let out easily.

Tip of the Month

As the practice of law develops into a multijurisdictional, interstate discipline, more attorneys than ever are relying on pro hac vice admission to practice in jurisdictions where they have not been fully admitted. Rules regarding pro hac vice admission vary widely, and a lawyer considering practice elsewhere must carefully review both the rules of admission in the other jurisdiction, and also the Rules of Professional Conduct that apply, as the pro hac vice attorney must conform to local ethical rules, which may differ from those of his or her home state. A useful Web site for quick reference to pro hac vice and multijurisdictional practice in the various states is www.crossingthebar.com.

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