If you’re admitted to handle a case PHV, mind your P’s and Q’s.
Translation: Pro hac vice admission to practice before a court outside the state where you’re licensed requires attention to a range of ethics duties, and running afoul of them can have bad consequences. Two recent cases spotlight some of the issues.
We’re looking at you….
A Louisiana lawyer was admitted pro hac vice to represent a client in the Western District of North Carolina. On the application, he certified that he had never been subject to a formal suspension or public discipline in Louisiana. Whoops. In 2014, the lawyer had been suspended in the Bayou State for neglecting a client matter and mishandling a client trust account, but the suspension was deferred pending successful completion of a two-year probation.
The lawyer argued that his certification on the PHV application was not a material misrepresentation. Maybe not technically — but the district court in North Carolina was not buying it. The lawyer’s missteps in his home state didn’t automatically disqualify from appearing in North Carolina, said the court. But he was required to explain his disciplinary history. The lawyer’s argument that he had to disclose only an actual interruption in his ability to practice was “manifestly not credible,” the court found. Even making the argument demonstrated his lack of candor, the court noted.
The outcome: revocation of the lawyer’s permission to represent his client in the case.
Lesson: Your state has a version of Model Rule 3.3 (Candor toward the Tribunal), Model Rule 5.5 (Multi-jurisdictional Practice) and Model Rule 8.4(c) (dishonesty, misrepresentation). Don’t try to shave the corner of the plate when you’re applying for PHV admission. Explain anything that even arguably needs explaining. Don’t try to justify a failure to disclose with an over-technical reading of the requirements. A court might not look kindly on that strategy.
Hand-flapping and harassment
An Ohio lawyer admitted pro hac vice before the Delaware Chancery Court was representing the defendants. Things went awry when the lawyer deposed one of the plaintiff’s witnesses, and based on misconduct at the deposition, the court granted the lawyer’s own motion to withdraw his PHV admission.
From its review of the deposition transcript and video, the court noted that the lawyer
- raised his hand and made yapping gestures toward plaintiff’s counsel while plaintiff’s counsel was speaking;
- repeatedly interrupted plaintiff’s counsel and referred to him as “Egregious Steve,” and the “sovereign of Delaware”;
- harassed the deponent with personal questions; and
- called the deponent and plaintiff’s counsel “idiots.
For this conduct, which it called “not only rude, but tactically so,” the court granted the motion to withdraw, and also referred the matter to Delaware disciplinary counsel, along with imposing attorneys’ fees on the lawyer and his firm.
Lesson: Be professional and dignified at all times, but especially when you are in someone else’s bailiwick. As the court said, the lawyer was appearing in Delaware “as a courtesy extended to him to practice pro hac vice.” Delaware, like many other jurisdictions, has a professionalism code, in addition to its Rules of Professional Conduct. The Delaware code stresses “civility,” respectfulness, “emotional self-control,” and refraining from “scorn and superiority in words or demeanor,” and is binding on those appearing pro hac vice, the court said.
The take-home from these two cases is obvious. When you’re specially admitted before a court, any professional or ethical misconduct carries with it the added potential risk of being tossed from the case, with clear downsides for your client, as well as for you. Mind those P’s and Q’s, and stay out of PHV trouble.