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house of delegates resolutions
107C
ADOPTED AS REVISED

Amends the ABA Model Rule on Pro Hac Vice Admission

RESOLVED, That the _ amends the ABA Model Rule on Pro Hac Vice Admission and Appendix A as follows (insertions underlined, deletions struck through):

ABA Model Rule on Pro Hac Vice Admission

I.     Admission In Pending Litigation Before A Court Or Agency

  1. A. Definitions

1.         An “out-of-state” lawyer is a person not admitted to practice law in this state but who is admitted in another state or territory of the United States or of the District of Columbia, and not disbarred or suspended from practice in any jurisdiction.

2.         An out-of-state lawyer is “eligible” for admission pro hac vice if that lawyer:

a. lawfully practices solely on behalf of the lawyer’s employer and its commonly owned organizational affiliates, regardless of where such lawyer may reside or work; or

b. neither resides nor is regularly employed at an office in this state; or

c. resides in this state but (i) lawfully practices from offices in one or more other states and (ii) practices no more than temporarily in this state, whether pursuant to admission pro hac vice or in other lawful ways.

3.         A “client” is a person or entity for whom the out-of-state lawyer has rendered services or by whom the lawyer has been retained prior to the lawyer’s performance of services in this state.

4.         An “alternative dispute resolution” (“ADR”) proceeding includes all types of arbitration or mediation, and all other forms of alternative dispute resolution, whether arranged by the parties or otherwise.

5.         “This state” refers to [state or other U.S. jurisdiction promulgating this rRule]. This Rule does not govern proceedings before a federal court or federal agency located in this state unless that body adopts or incorporates this Rule.

B.        Authority of Court or Agency To Permit Appearance By Out-of-State Lawyer

1.         Court Proceeding. A court of this state may, in its discretion, admit an eligible out-of-state lawyer retained to appear in a particular proceeding pending before such court to appear pro hac vice as counsel in that proceeding.

2.         Administrative Agency Proceeding. If practice before an agency of this state is limited to lawyers, the agency may, using the same standards and procedures as a court, admit an eligible out-of-state lawyer who has been retained to appear in a particular agency proceeding to appear as counsel in that proceeding pro hac vice.

C.        In-State Lawyer’s Duties.  When an out-of-state lawyer appears for a client in a proceeding pending in this state, either in the role of co-counsel of record with the in-state lawyer, or in an advisory or consultative role, the in-state lawyer who is co-counsel or counsel of record for that client in the proceeding remains responsible to the client and responsible for the conduct of the proceeding before the court or agency. 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.

D.        Application Procedure

1.         Verified Application. An eligible out-of-state lawyer seeking to appear in a proceeding pending in this state as counsel pro hac vice shall file a verified application with the court where the proceeding litigation is filed.  The application shall be served on all parties who have appeared in the case and the [Disciplinary Counsel lawyer regulatory authority]. The application shall include proof of service. The court has the discretion to grant or deny the application summarily if there is no opposition.

2.         Objection to Application. The [Disciplinary Counsel lawyer regulatory authority] or a party to the proceeding may file an objection to the application or seek the court’s imposition of conditions to its being granted. The [Disciplinary Counsel lawyer regulatory authority] or objecting party must file with its objection a verified affidavit containing or describing information establishing a factual basis for the objection. The [Disciplinary Counsel lawyer regulatory authority] or objecting party may seek denial of the application or modification of it. If the application has already been granted, the [Disciplinary Counsel lawyer regulatory authority] or objecting party may move that the pro hac vice admission be withdrawn.

3.         Standard for Admission and Revocation of Admission.  The courts and agencies of this state have discretion as to whether to grant applications for admission pro hac vice. An application ordinarily should be granted unless the court or agency finds reason to believe that such admission:

a.         may be detrimental to the prompt, fair and efficient administration of justice,

b.         may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent,

c.         one or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk, or

d.         the applicant has engaged in such frequent appearances as to constitute regular practice in this state.

4.         Revocation of Admission. Admission to appear as counsel pro hac vice in a proceeding may be revoked for any of the reasons listed in Section I.D.3 above.

E.        Verified Application and Fees:

1.         Required Information. An application shall state the information listed on Appendix A to this rRule. The applicant may also include any other matters supporting admission pro hac vice.

    2. Application Fee.  An applicant for permission to appear as counsel

      pro hac vice under this Rule shall pay a non-refundable fee as set by the [court or other proper authority lawyer regulatory authority] at the time of filing the application.  The [court or other proper authority] shall determine for what purpose or purposes these fees shall be used.

        3. Exemption for Pro Bono Representation.  An applicant shall not be

          required to pay the fee established by I.E.2 above if the applicant will not charge an attorney fee to the client(s) and is:

          a.      employed or associated with a pro bono project or nonprofit

          legal services organization in a civil case involving the client(s) of such

          programs: or

          b.      involved in a criminal case or a habeas proceeding for an

          indigent defendant.

          4. Lawyers’ Fund for Client Protection.  Upon the granting of a request

          to appear as counsel pro hac vice under this Rule, the lawyer shall pay any required

          assessments to the lawyers’ fund for client protection. This assessment is in

          addition to the application fee referred to in Section (E)(2) above.

          F.         Authority of the [Disciplinary Counsel Lawyer Regulatory Authority], the

          and Court: Application of Ethical Rules of Professional Conduct, Rules of

          Disciplinary Enforcement Discipline, Contempt, and Sanctions

          1.         Authority Over Out-of-State Lawyer and Applicant.

          a.         During pendency of an application for admission pro hac vice and upon the granting of such application, an out-of-state lawyer submits to the authority of the courts and the jurisdiction of [Disciplinary Counsel lawyer regulatory authority] of this state for all conduct arising out of or relating in any way to the application or proceeding in which the out-of-state lawyer seeks to appear, regardless of where the conduct occurs. The applicant or out-of-state lawyer who has obtained pro hac vice admission in a proceeding submits to this authority for all that lawyer’s conduct (i) within the state while the proceeding is pending or (ii) arising out of or relating to the application or the proceeding. An applicant or out-of-state lawyer who has pro hac vice authority for a proceeding may be disciplined in the same manner as an in-state lawyer.

          b.         The court’s and the [Disciplinary Counsel’s lawyer regulatory authority’s] authority includes, without limitation, the court’s and the [Disciplinary Counsel’s lawyer regulatory authority’s] rules of professional conduct, rules of disciplineary enforcement, contempt and sanctions orders, local court rules, and court policies and procedures.

          2.         Familiarity With Rules. An applicant shall become familiar with all

          applicable the rules of professional conduct, rules of disciplineary enforcement of the [lawyer regulatory authority], local court rules, and policies and procedures of the court before which the applicant seeks to practice.

          II.        Out-of-State Proceedings, Potential In-State and Out-of-State Proceedings, and All ADR

          A.        In-State Ancillary Proceeding Related to Pending Out-of-State Proceeding.  In connection with proceedings pending outside this state, an out-of-state lawyer admitted to appear in that proceeding may render in this state legal services regarding or in aid of such proceeding.

          B.        Consultation by Out-of-State Lawyer

          1.         Consultation with In-State Lawyer. An out-of-state lawyer may consult in this state with an in-state lawyer concerning the in-state’s lawyer’s client’s pending or potential proceeding in this state.

          2.         Consultation with Potential Client. At the request of a person in this state contemplating a proceeding or involved in a pending proceeding, irrespective of where the proceeding is located, an out-of-state lawyer may consult in this state with that person about that person’s possible retention of the out-of-state lawyer in connection with the proceeding.

          C.        Preparation for In-State Proceeding. On behalf of a client in this state or elsewhere, the out-of-state lawyer may render legal services in this state in preparation for a potential proceeding to be filed in this state, provided that the out-of-state lawyer reasonably believes he is eligible for admission pro hac vice in this state.

          D.        Preparation for Out-of-State Proceeding. In connection with a potential proceeding to be filed outside this state, an out-of-state lawyer may render legal services in this state for a client or potential client located in this state, provided that the out-of-state lawyer is admitted or reasonably believes the lawyer is eligible for admission generally or pro hac vice in the jurisdiction where the proceeding is anticipated to be filed.

          E.        Services Rendered Outside This State for In-State Client. An out-of-state lawyer may render legal services while the lawyer is physically outside this state when requested by a client located within this state in connection with a potential or pending proceeding filed in or outside this state.

          F.         Alternative Dispute Resolution (“ADR”) Procedures. An out-of-state lawyer may render legal services in this state to prepare for and participate in an ADR procedure regardless of where the ADR procedure is expected to take or actually takes place.

          G.        No Solicitation. An out-of-state lawyer rendering services in this state in compliance with this Rule or here for other reasons is not authorized by anything in this rRule to hold out to the public or otherwise represent that the lawyer is admitted to practice in this jurisdiction. Nothing in this Rule authorizes out-of-state lawyers to solicit, advertise, or otherwise hold themselves out in publications as available to assist in litigation in this state.

          H.        Temporary Practice. An out-of-state lawyer will only be eligible for admission pro hac vice or to practice in another lawful way only on a temporary basis.

            I. Authorized Services.  The foregoing services may be undertaken by the out-of-state lawyer in connection with a potential proceeding in which the lawyer reasonably expects to be admitted pro hac vice, even if ultimately no proceeding is filed or if pro hac vice admission is denied.

              III.  Admission of Foreign Lawyer in Pending Litigation Before a Court or Agency

              A.  A foreign lawyer is a person admitted in a non-United States jurisdiction and who is a member of a recognized legal profession in that jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a public authority, and who is not disbarred, suspended or the equivalent thereof from practice in any jurisdiction.

              B. The definitions of “client” and “state” in paragraphs I(A)(3) and (5) are incorporated by reference in this Paragraph III.

              C. A court or agency of this state may, in its discretion, admit a foreign lawyer in a particular proceeding pending before such court or agency to appear pro hac vice in a defined role as a lawyer, advisor or consultant in that proceeding with an in-state lawyer, provided that the in-state lawyer is responsible to the client, responsible for the conduct of the proceeding, responsible for independently advising the client on the substantive law of a United States jurisdiction and procedural issues in the proceeding, and for advising the client whether the in-state lawyer’s judgment differs from that of the foreign lawyer.  See paragraph III(E).

              1.  the legal training and experience of the foreign lawyer including in matters similar to the matter before the court or agency;

              2.  the extent to which the matter will include the application of:

              a. the law of the jurisdiction in which the foreign lawyer is admitted or

              b.  international law or other law with which the foreign lawyer has a demonstrated expertise;

              3.  the foreign lawyer’s familiarity with the law of a United States jurisdiction applicable to the matter before the court or agency;

              4.  the extent to which the foreign lawyer’s relationship and familiarity with the client or with the facts and circumstances of the matter will facilitate the fair and efficient resolution of the matter;

              5.  the foreign lawyer’s English language ability; and

              6.  the extent to which it is possible to define the scope of the foreign lawyer’s authority in the matter as described in paragraph III(EF) so as to facilitate its fair and efficient resolution, including by a limitation on the foreign lawyer’s authority to advise the client on the law of a United States jurisdiction except in consultation with the in-state lawyer.

              D.E.  The court or agency shall limit the activities of the foreign lawyer or require further action by the in-state lawyer, as appropriate in its discretion in light of paragraph III(D).  It may, for example, require the in-state lawyer to sign all pleadings and other documents submitted to the court or to other parties, to be present at all depositions and conferences among counsel, or to attend all proceedings before the court or agency.

              E.F.  The provisions of Section I, paragraphs (D), (E), and (F)  and  Section II, paragraphs (G) and (H), applicable to out-of-state lawyers, also apply to foreign lawyers for purposes of the requirements of Paragraph III of this Rule.


              APPENDIX A

              The out-of-state or foreign lawyer’s verified application for admission pro hac vice shall include:

              1.         the applicant’s residence and business address, telephone number(s), and e-mail address(es);

              2.         the name, address, and telephone number(s), and e-mail address(es) of each client sought to be represented;

              3.         the U.S. and foreign jurisdictions in, and agencies and courts before which the applicant has been admitted to practice, the contact information for each, and the respective period(s) of admission;

              4. the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this state within the preceding two years and the date of each application;

              45. a statement as to whetherthe applicant (a) within the last [five (5)] years has been denied admission pro hac vice in any jurisdiction, U.S. or foreign, including this state, (b) has ever had admission pro hac vice revoked in any jurisdiction, U.S. or foreign, including this state, or (c) has otherwise ever formally been disciplined or sanctioned by any court or agency in any jurisdiction, U.S. or foreign, including this state. If so, specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings;. A certified copy of the written finding or order shall be attached to the application.  If the written finding or order is not in English, the applicant shall submit an English translation and satisfactory proof of the accuracy of the translation

              56.       whether any formal, written disciplinary proceeding has ever been brought against the applicant by a disciplinary counsel or analogous foreign regulatory authority in any other jurisdiction within the last [five (5)] years and, as to each such proceeding:  the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated, which, if any, of the proceedings are still pending, and, for those proceedings that are not still pending, the dates upon which the proceedings were finally concluded; the style caption of the proceedings; and the findings made and actions taken in connection with those proceedings;, including exoneration from any charges. A certified copy of any written finding or order shall be attached to the application.  If the written order or findings is not in English, the applicant shall submit an English translation and satisfactory proof of the accuracy of the translation.

              67.       whether the applicant has been held formally in contempt or otherwise sanctioned by any court in a written order in the last [five (5)] years for disobedience to its rules or orders, and, if so:  the nature of the allegations; the name of the court before which such proceedings were conducted; the date of the contempt order or sanction, the caption of the proceedings, and the substance of the court’s rulings. (a A copy of the written order or transcript of the oral rulings shall be attached to the application. If the written finding or order is not in English, the applicant shall submit an English translation and satisfactory proof of the accuracy of the translation);

              7.         the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this state within the preceding two years; the date of each application; and the outcome of the application;

              8.         an averment as to the applicant’s familiarity with the rules of professional conduct, rules of disciplineary enforcement of the [lawyer regulatory authority], local or agency rules, and court policies and procedures of the court or agency before which the applicant seeks to practice;

              9.         the name, address, telephone number(s), e-mail address(es), and bar number of an the active member in good standing of the bar of this state who will sponsor supports the applicant’s pro hac vice request. ,who The bar member shall appear of record together with the out-of-state lawyer, and who shall remain ultimately responsible to the client as set forth in Paragraph C of this Rule; and

              10. for applicants admitted in a foreign jurisdiction, an averment by the in-state lawyer referred to in Paragraph 9 above and by the lawyer admitted in a foreign jurisdiction that, if the application for pro hac vice admission is granted, service of any documents by a party or Disciplinary Counsel upon that foreign lawyer shall be accomplished by service upon the in-state lawyer or that in-state lawyer’s agent.

              1011.  Optional:  the applicant’s prior or continuing representation in other matters of one or more of the clients the applicant proposes to represent and any relationship between such other matter(s) and the proceeding for which applicant seeks admission.

              1112.   Optional:  any special experience, expertise, or other factor deemed to make it particularly desirable that the applicant be permitted to represent the client(s) the applicant proposes to represent in the particular cause.