Kansas Supreme Court Rule 116 governs the pro hac vice admission requirements for an out-of-state attorney and sets forth the responsibilities of the Kansas attorney.
Rule 116(b) states that the Kansas “attorney of record under subsection (a)” must:
- be actively engaged in the case;
- sign all pleadings, documents, and briefs;
- be present throughout all court or administrative appearances; and
- attend a deposition or mediation unless excused by the court or tribunal or under local rule.
Questions arise with respect to the meaning of “attorney of record” in this context. For example, if there are two attorneys from one firm that are of record on the case, must the attorney who filed the pro hac vice motion be the one that is present during court and during depositions with the attorney who has been admitted pro hac vice? Can the other Kansas attorney who has entered an appearance or even an associate from the same firm who has not entered an appearance on the case be the Kansas attorney in attendance?
To answer these questions, one must examine the intent of Rule 116. The purpose of the rule is to protect the public by ensuring familiarity with state and local practices. In the Matter of James M. Roswald, No. 105,257 (April 22, 2011); See also, In re Franco, 275 Kan. 571 (2003)(the Kansas attorney must be “actively engaged in the conduct of the matter or litigation.”) To ensure that this purpose is met, Rule 116 requires an attorney subject to the Kansas Rules of Professional Conduct to be present in the courtroom or in a deposition or mediation for each party. Therefore, to satisfy this purpose, it need not be the attorney that filed the pro hac vice motion that appears along with the out-of-state attorney, but the intent of the Rule can be satisfied if another attorney appears that has entered an appearance for that party or even another Kansas attorney from the same firm that represents that party.
To understand the importance of complying with Rule 116, one need only look to theRoswald matter. In Roswald, the respondent was licensed both in Kansas and Missouri and was partners with attorney Mark Schmid, who was only licensed in Missouri. Mr. Schmid accepted a Kansas case, but the respondent, who was the attorney of record in the case, simply reviewed and signed pleadings, never consulted with the client and never filed a pro hac vice motion for Mr. Schmid. As the case progressed, the defendants filed motions for summary judgment. Mr. Schmid did not inform respondent of said motions and, while Mr. Schmid informed the client about the motions, he never filed any oppositions and recommended settlement to the client. The court granted the motions and dismissed the case. Mr. Schmid never told the respondent about these events and falsely told the client that he settled the case for the amount authorized by the client. The client was displeased with the amount received in settlement after deductions for fees and expenses and hired another attorney, who then discovered the true nature of what had occurred.
In imposing sanctions on the respondent in this case which included a one year suspension from the practice of law, the Supreme Court stated that the respondent took no action to ensure the client was adequately represented and that, as the attorney of record, the respondent was the person responsible for keeping the client advised of the status of the case. The Court concluded that the respondent assisted Mr. Schmid, who is not a member of the Kansas bar, in the unauthorized practice of law since he knew that Mr. Schmid did not have a license to practice in Kansas and knew that he was meeting with, advising and otherwise representing a client in a Kansas case. The court also found that the respondent knowingly disregarded his professional responsibilities and assisted Mr. Schmid in the unauthorized practice of law by signing notices to take depositions that only Mr. Schmid planned to attend. “Without admission pro hac vice, out-of-state attorneys appearing in Kansas courts, or actively participating in pretrial proceedings such as depositions or mediations, would be engaged in the unauthorized practice of law in this state.” In the Matter of James M. Roswald, No. 105,257 (April 22, 2011). The Court stated as follows:
[W]e emphasize our rule does not require local counsel to actively present the case in person each time there is a proceeding. But it does require local counsel’s substantive attention by being actively engaged in the conduct of the case, signing all court filings, and being present at all court or administrative appearances.
District courts, of course, may require local counsel’s attendance – or excuse it- at any pretrial proceeding except court and administrative appearances as specified by Rule 116. And local counsel should be clear on the expectations of the trial court or tribunal while serving in a local counsel capacity. But just because local counsel may not be required to attend a deposition or mediation does not mean an out-of-state attorney may take or defend a deposition, or participate in mediation, without first having been authorized by the district court through Supreme Court Rule 116 to be admitted to practice law in this state for that particular purpose.
Rule 116 requires a Kansas attorney to be present at all court or administrative appearances, with no exceptions. However, Rule 116(b)(4) sets a different requirement for local counsel with respect to depositions or mediations. It requires the Kansas attorney to be present at that deposition or mediation, unless the court has excused the attendance of the Kansas attorney or, unless the local rules in that Kansas jurisdiction permit the Kansas attorney to not attend. Kansas attorneys acting as local counsel should exercise caution when scheduling depositions if the pro hac vice attorney will be appearing without the Kansas attorney. This situation can become especially difficult when the deposition is scheduled outside of the state of Kansas and the client, understandably, only wants one attorney to attend. It is necessary to seek permission of the court or determine if local rules excuse the attendance of the Kansas attorney before the deposition lest the Kansas attorney be subject to discipline or the deposition be challenged afterwards for failure to comply with the Kansas rules. If the situation is such that the Kansas attorney must attend the deposition, the Rule does not require the attorney to be physically present at the deposition and most likely would permit an appearance by telephone.
The requirements of Rule 116 are taken seriously by the Kansas bar and it is imperative upon local counsel to comply with its requirements to avoid the risk of assisting another attorney in the unauthorized practice of law. Always make sure when acting as local counsel that a Kansas attorney is present in the courtroom with the out-of-state attorney and always make sure to be present for depositions or mediations, unless expressly excused by the court or local rules.