Commercial Litigation and Arbitration

Denial of Pro Hac Vice Application Due to Frequency of Appearance — Circuit Split as to Whether Pro Hac Appearance Is a Right or a Privilege

Mateo v. Empire Gas Co., 2012 U.S. Dist. LEXIS 6398 (D. P.R. Jan. 19, 2012):

Before the Court is pro hac vice attorneys Toby B. Fullmer and W. Douglas Matthews' show cause response (Docket # 97), requesting this court not to set aside their pro hac vice admissions in the case at bar. After a comprehensive analysis of the meaning and purpose of this term, and because sanctioning Matthews and Fullmer's six active pro hac vice appearances in this District would turn the meaning of this Latin phrase on its head, the Court finds their frequent appearances far from occasional, thus amounting to regular practice of law in this jurisdiction. Hence, in order to continue practicing law before this court, Matthews and Fullmer shall apply for regular admission to the District Court of Puerto Rico. ***

28 U.S.C. § 2071 and Fed. R. Civ. P. 83 authorize federal courts to promulgate local rules of practice. United States v. Hvass, 355 U.S. 570, 575, 78 S.Ct. 501, 504, 2 L.Ed.2d 496 (1958). Further, 28 U.S.C. § 1654 empowers each federal district to regulate the admissions of attorneys: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." Id.; see also In re Desilets, 291 F.3d 925, 929 (6th Cir. 2002) (finding that "[f]ederal courts have the right to control the membership of the federal bar"). As usual, such rules must "[b]e consistent with Acts of Congress . . . ." 28 U.S.C. § 2071. ***

Out-of-state attorneys not admitted to practice law in this District *** may move for admission pro hac vice pursuant to certain requirements imposed by Local Rule 83A(f). Among other exigencies, they must (1) "attest that the movant is not currently suspended from practicing law before any court or jurisdiction"; (2) "designate a member of this Court as local counsel"; and (3) pay the appropriate fee. D.P.R. Civ. R. 83A(f). Importantly, the rule provides that both the pro hac vice and local counsel "[s]hall sign all filings submitted to the Court". Id. And that once a pro hac vice attorney has been admitted "[f]or purposes of a particular proceeding, the attorney shall be deemed to have conferred disciplinary jurisdiction upon this Court . . . ." Id.

Although courts commonly have permitted out-of-state lawyers to appear pro hac vice, such practice is guaranteed neither by statute nor by the Constitution. See e.g., Leis v Flynt, 439 U.S. 438, 443, 99 S.Ct. 698, 701 58 L. Ed. 2d 717 (1979) (per curiam) ("The Constitution does not require that because a lawyer has been admitted to the bar of one State, he or she must be allowed to practice in another."), reh'g denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

Footnote 9. There appears to be a circuit split on whether an out-of-state attorney has an actual right—as opposed to a mere privilege—to appear pro hac vice. Compare Thomas v. Cassidy, 249 F.2d 91, 92 (4th Cir. 1957) (noting that "[p]ermission . . . to appear pro hac vice . . . is not a right but a privilege . . . ") and Atchison, T. & S. F. R. Co. v Jackson Railway, 235 F.2d 390, 393 (10th Cir. 1956) (same) with Schlumberger Technologies, Inc. v. Wiley, 113 F.3d 1553, 1562-63 (11th Cir. 1997) (concluding that "[b]inding circuit precedent requires a showing of unethical conduct . . . in order to justify the denial of an applicant's pro hac vice admission") and Fuller v. Diesslin, 868 F.2d 604, 607 n. 3 (3d Cir. 1989), cert. denied, 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989) (finding that pro hac vice applicant has a "[p]resumption that [his] request should be granted unless considerations of judicial administration supervene").

The Supreme Court has observed, approvingly, that "'in many District Courts, the decision on whether to grant pro hac vice status to an out-of-state attorney is purely discretionary.'" Roma Const. Co. v. aRusso, 96 F.3d 566, 576-77 (1st Cir. 1996) (quoting Frazier v. Heebe, 482 U.S. 641, 651 n. 13, 107 S.Ct. 2607, 2614 n. 13, 96 L.Ed.2d 557 (1987)); see also In re Clark, No. 88-5152, 861 F.2d 263, 1988 WL 105310, at *3 (4th Cir. 1988) (unpublished table opinion) (affirming a district judge's revocation of an attorney's pro hac vice status for failing to attend trial). This District is not the exception; the local rule confers the Court with ample discretion to deny pro hac vice admission. See D.P.R. Civ. R. 83A(f) ("The Court will not refund the [filing] fee if the [pro hac vice] motion is denied."); cf. id. ("The Court may at any time revoke pro hac vice admission for good cause without a hearing."); see also Puerto Rico American Ins. Co. v. Rivera-Vazquez, 603 F.3d 125, 133 (1st Cir. 2010) (noting that district courts have "[b]road discretion in the administration and enforcement of its own local rules") (citing United States v. Diaz-Villafane, 874 F.2d 43, 46 (1st Cir. 1989)).

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