PROPOSALS TO MODIFY NEW YORK COURT RULES CONCERNING THE ENGAGEMENT OF LOCAL COUNSEL AND THE PRO HAC VICE ADMISSION OF ATTORNEYS
Report of the Committee on Professional Responsibility
This Report examines the current rules in the New York state and federal courts requiring non-New York attorneys to “associate” with a local attorney in order to appear before those courts and the related rules regarding the admission and appearance of attorneys pro hac vice.1 Although these rules have deep roots, significant doubts arise concerning the continuing rationales for and the necessity of those rules, especially as the practice of law increasingly crosses state and international borders, court procedures grow more consistent from jurisdiction to jurisdiction, technological advances permit virtually instant communication among attorneys, clients and courts, and clients become more sophisticated and discriminating consumers of legal services. Given these compelling questions, the Committee believes that fundamental changes in New York’s “association” and pro hac vice rules should now be implemented.
Specifically, as discussed below, given the generally uniform nature of governing laws and procedures among the federal courts, we urge that the “association rule” should finally be abolished in the federal courts within New York.2 For the New York state courts, however, the Committee believes that, instead of blanket abolition of any local counsel requirements, the association rules and the pro hac vice rules in those courts should be modified to permit a party presumptively to dispense with local counsel at the outset of the litigation, upon satisfaction of specified requirements for the admission of out-of-state counsel pro hac vice to prosecute or defend the action. Such relief from the local counsel requirement would remain subject to reconsideration under appropriate circumstances, and would be available only to attorneys whose own states offer reciprocal privileges to New York attorneys.
These modifications would recognize New York’s status as a national commercial and legal center. The Committee finds it perverse that, while many New York lawyers seek to cross state lines to service their clients’ needs, the State clings to rules that impede out-of-state attorneys from practicing here, place an unnecessary economic burden on clients, and force them to choose additional counsel that they might not otherwise have retained. New York can and should take the lead in dispensing with these provincial, anachronistic and cost-inefficient rules. Moreover, by removing such obstacles to interstate practice for lawyers from any state that does likewise, New York would set an appropriate standard for modern law practice without competitively impairing the State’s lawyers. The Committee hopes that other states would follow New York’s lead.
B. The Current Rules, and Their Rationales
For decades throughout the nation, the conduct of litigation by out-of-state attorneys who are not admitted to practice in the forum state has been driven by rules that require the foreign attorney (i) to be admitted to the court pro hac vice in order to appear and participate in the proceeding, and (ii) to “associate” for the duration of the action with a local attorney in the forum state who, in turn, must be a counsel of record in the proceeding. All federal and state courts in New York have had some variant of these rules over the years, although they rarely define the scope of pro hac vice admission or the duties of local counsel. Enforcement of those rules has been sporadic and inconsistent, at best.
The rules governing pro hac vice admissions historically are viewed as regulating a privilege, not a right.3 Thus, the rules of the New York federal and state courts regulating the admission of attorneys pro hac vice, like those of other jurisdictions, permit the courts to grant such applications in the reasonable exercise of discretion, but do not preordain such results.4
1. The New York Federal Courts
Each of the federal courts in New York permits an attorney admitted in another federal district to appear before the court upon a minimum showing of professional qualification, good standing and competency, and familiarity with the local rules; most, but not all, of these courts require the out-of-state counsel to designate a local attorney to appear in the action.5
The pro hac vice attorney, once admitted, is subject to the same professional responsibilities and ethical standards as an attorney regularly admitted to practice in the forum,6 and will be subject to the supervision of the forum court.7 Once admitted pro hac vice, the foreign attorney may appear and participate in all aspects of the proceedings. Conversely, once designated, local counsel is responsible as an attorney of record for the conduct of the action on behalf of the client, and is thereby subject to the rules of practice, including discipline and sanctions for improper conduct.8 Thus, for example, local counsel is subject to sanctions for pleadings and papers bearing the out-of-state attorney’s signature, even if local counsel serves in only a titular or ministerial role (or, typically, as a “mail drop”) while foreign counsel effectively conducts the prosecution or defense of the litigation.9 Similarly, the out-of-state counsel, by virtue of admission to practice in the particular action, is subject to the district court’s disciplinary rules and must adhere to all local rules of procedure and practice.10
2. The New York State Courts
The New York state courts have historically subscribed to somewhat more stringent requirements for the pro hac vice admission of out-of-state counsel than have the federal courts. Pursuant to the rules promulgated by the New York Court of Appeals, a foreign attorney may be admitted to practice pro hac vice “in the discretion of any court of record” to participate in any matter, so long as the applicant “associates with a New York attorney who is a member in good standing of the New York bar.”11 Such local counsel “shall be the attorney of record in the matter.”12 The attorney admitted pro hac vice must “be familiar with and ... comply with the standards of professional conduct imposed upon members of the New York bar,”13 and is “subject to the jurisdiction of the courts of [New York] with respect to any acts occurring during the course of the attorney’s participation in the matter.”14
Notwithstanding the Court of Appeals’s general authorization for pro hac vice admission, three of the four Appellate Departments have rules that permit the admission of non-New York attorneys in the discretion of the court in which the matter is pending, but which expressly limit the non-New York attorney’s participation only to the “trial or argument” of the action or proceeding.15 This limitation, on its face, arguably does not authorize the foreign attorney to participate in depositions, other discovery proceedings or pretrial motion practice in the New York action. These rules have spawned litigation that resulted in inconsistent interpretations as to the permissible scope of the out-of-state counsel’s activities in the proceedings.16
As with the Court of Appeals rules, admission pro hac vice in a court within any of the Appellate Divisions subjects the foreign attorney to discipline by the court for misconduct or sanctionable activity in the action, as well as to New York disciplinary proceedings.17 More typically, the discipline to which an out-of-state attorney may be subjected involves a referral by the appropriate New York court grievance committee to the counterpart regulatory body in the lawyer’s home state of admission.18
C. Issues Concerning the Current Rules
Pro hac vice and local counsel rules historically have been defended as necessary to fulfill a variety of objectives identified by courts and commentators at various times and in various terms:19 (1) to assure accountability by counsel in an action to the court; (2) to assure that counsel is accessible to the court, for hearings, proceedings, service and filing of papers; (3) to assure that counsel has a minimum level of expertise and sufficient training to represent the client’s interest;20 (4) to assure adherence by counsel to standards of professional conduct, and to effectuate discipline;21 (5) to ensure against delays and other administrative inefficiencies;22 (6) to ensure that counsel continues in a case until it is completed;23 (7) assure competent representation of litigants, through counsel fully familiar and knowledgeable with local substantive law and local rules and practice;24 (8) to protect the integrity and quality of the local bar; and (9) to respond to other states’ reluctance to grant reciprocal practice privileges.25
Notwithstanding these traditional purposes, the Committee questions their continued force. As the nature of law practice generally, and litigation in particular, increasingly crosses state lines, the pro hac vice and local counsel rules more readily seem anachronistic or, worse, no more than naked protectionist devices that serve mainly to impose higher costs for legal consumers who litigate in New York. The proliferation of multi-state law firms is but one example of the increased cross-boundary nature of modern law practice.26 Concerns about accessibility to the courts have been relieved by the advent of new technologies including: instant access to other jurisdictions’ laws and precedents through on-line databases and Internet resources; high-speed electronic communications and capabilities for transmittal of data, audio and video information; telephone and video-conferencing capabilities (formally adopted by several courts, and increasingly used by individual judges to permit appearances at conferences and hearings by attorneys from remote locations without the cost and burden of having to travel to the court);27 authorizations by courts to permit filing of papers electronically;28 maintenance of electronic dockets and bulletin boards;29 and authorization (by rule or order or, more often, by stipulation) for service of papers by telecopy or by electronic means. These advances, coupled with the relative ease, speed, availability and economy of travel to out-of-state forums, make the courts and attorneys more accessible to each other than ever before. These considerations call into question the need for rules that, effectively, require non-resident parties to litigation to retain local counsel in the forum state in addition to their regular home-state attorneys.30
The local counsel requirement necessarily increases the client’s professional expense, and adds additional layers of administrative and procedural obligations on parties, attorneys, adversaries and courts alike. In addition, with respect to the availability of disciplinary remedies, it has been anecdotally reported to the Committee that the grievance tribunals of most states have shown increased receptivity to acting upon disciplinary referrals from other states’ courts and disciplinary authorities; thus, there is less reason to fear that foreign attorneys will escape discipline for egregious conduct committed in actions pending in the New York courts.31 Indeed, for lawyers who practice in “national” law firms having New York offices, the recent amendment to the New York Code of Professional Responsibility to permit discipline of law firms provides a powerful incentive for the out-of-state “big firm” lawyer to behave while representing clients in the New York courts.32
It is not clear that a requirement to retain local counsel necessarily protects the client’s interests. Many local counsel deal with clients only through the out-of-state counsel, an arrangement that lacks the traditional hallmarks of an attorney-client relationship. Frequently, local counsel is neither asked to provide, nor is in any position of knowledge to give, independent professional judgment to the client.
Moreover, the Committee believes that the association requirement fails in practice to fulfill its traditional goals because most local counsel have only vague notions of, or otherwise pay relatively little attention to, their responsibilities.33 There is no single, authoritative codification of the duties and responsibilities of local counsel. Attorneys serving in the role of local counsel, therefore, must guide themselves in light of general statutory and common law, and the prevailing New York rules of professional conduct.
Under existing New York rules and practices, local counsel is, technically, the “counsel of record” for the party whose principal counsel is from outside New York.34 To the extent that rule restrictions in three appellate departments limit the pro hac vice attorney’s role only to trial or argument before the court, local counsel technically is responsible for the conduct of all other aspects of the New York action. Yet, as a practical matter, and as was repeatedly confirmed to the Committee anecdotally, clients in most cases will request that the non-New York attorney retain overall responsibility for strategic decisions, the form and content of papers, and the general administration of the case, thereby relegating the New York local counsel to the role of a so-called “mail drop”. Nevertheless, under the governing ethical and disciplinary rules, the local attorney is fully responsible for errors and improprieties in the conduct of the proceeding.35 Facing exposure to professional discipline and court sanctions as an “attorney of record,” while constrained at the same by tight limitations on fees, costs and scope of representation imposed by clients who did not want to form any relationship with local counsel at all, attorneys asked to serve as local counsel are often in a bind about how much or how little they must do to protect themselves while still discharging their professional obligations, dealing with out-of-state lead counsel, obeying client’s wishes and serving client’s interests in the case.36
Recommendations for Revisions of New York State and Federal Court Rules Requiring the Engagement of Local Counsel and Regulating Pro Hac Vice Admissions
A. Revision of Local Counsel Rules
The Committee recognizes that, regardless of the current or future state of the rules, many clients will desire to retain New York counsel in a particular litigation engagement, either as their exclusive counsel or as local counsel, whether in federal or state court. Two principal reasons underlie this motivation: First, although New York has attempted to make its state court system uniform and to conform its various court practices and procedures into a more unitary scheme,37 there remain legal pitfalls for the unwary. Second, both lawyers and clients are conscious of having an attorney-of-record who knows the local state or federal court intimately and with whom court personnel (including judges) may be familiar.
With respect to the state courts, the Committee believes that these concerns are sufficient to warrant that New York make sure that attorneys and clients have considered them before proceeding without local counsel, and that local counsel be required by the court in appropriate circumstances. Nevertheless, the Committee believes that the “association” requirement could be waived in many, and perhaps most, cases in the New York state courts without adverse consequences to the orderly conduct of litigation and the efficient operation of the court system. The Committee recommends, therefore, that the “association” requirement should be modified to permit foreign counsel presumptively to proceed in the state courts without local counsel, unless ordered by the court to retain and utilize local counsel.
The Committee further recommends that local counsel requirements be abolished in the New York federal courts.
1. Relaxation of the Local Counsel Rules In the New York State Courts
The Committee recommends a restructuring of the New York state court rules to permit foreign counsel to commence actions or proceedings on behalf of plaintiffs in the New York state courts, or to file initial motions or answers on behalf of defendants or respondents in those courts, without the formal appearance of local counsel at that stage of such matters.38 The Committee recommends that, at the time of such initial filing, foreign counsel must make the following additional submissions to the Court and each adversary counsel or party who has appeared (or, in the case of a new action or proceeding, to adverse parties at the time of service of process):
a. If the client intends to proceed in the action without local counsel, the foreign attorney must submit a certificate signed by the attorney and the client, stating that: (1) they are proceeding initially without local counsel; (2) the attorney has advised the client that the client could engage local counsel; (3) the client has elected not to engage local counsel; and (4) the attorney and the client understand that the Court may order the party to engage local counsel at any stage of the action or proceeding. In addition, the foreign attorney must also submit a formal application for admission pro hac vice.39
b. If the client in the action intends to proceed with local counsel (unless such counsel has already appeared in the action), the foreign attorney must submit a certificate that the client intends to obtain local counsel within thirty (30) days after the initial filing. Such local counsel must serve and file a notice of appearance in the action within that time period. If the foreign attorney intends to continue to participate as a counsel of record in the action, he or she also must simultaneously file an application for admission pro hac vice. If the client intends to be represented of record in the action after the initial filing only by a New York attorney, the foreign attorney does not need to file a pro hac vice application at that time. In that instance, however, the foreign attorney will not be permitted to participate in further pre-trial, trial or post-trial proceedings in the case without serving and filing, and receiving (prior to participating in the proceedings), an order of the court granting a pro hac vice application.
Given the nature of these proposed changes, the Committee believes that several other safeguards should be included in the new state court rules. First, the option to proceed without local counsel should be available only where the out-of-state attorney litigating the matter has practiced in good standing in his or her home state of admission for a minimum of five years. For out-of-state attorneys with less than five years of experience, the local counsel requirement would remain operative unless excused by the court having jurisdiction over the particular New York action or proceeding based on surrounding facts and circumstances.40
Second, the foreign attorney should be required to submit a sworn certificate concerning the requisite experience and good standing. While not a guarantee of professional competency or ethical rectitude, this requirement is designed to increase the likelihood that the client who elects to proceed in a New York state court without local counsel will be represented by an experienced attorney.
Finally, the Committee proposes that the new rules affording relief from the “association” rule in the New York state courts should be made available only to attorneys whose home states, in turn, afford reciprocal treatment to New York attorneys. For those states that do not currently provide for such treatment, the association rule would remain in place (but, presumably, subject to the new standardized requirements for pro hac vice admission discussed below),41 unless and until the adoption of comparable, reciprocal rules in the other states.
The Committee considered but narrowly defeated a proposal to forego any reciprocity requirements in order to afford attorneys from any other state the opportunity to appear in the New York courts without local counsel (assuming their pro hac vice admission). The majority of the Committee believed that such an open-door policy would place New York lawyers at a competitive disadvantage and would benefit attorneys from states whose rules are more restrictive.
The Committee also considered the following related issues:
(1) Creation of A New York “Mail Drop”: The Committee considered whether the New York courts should implement a formal mechanism to permit foreign counsel admitted pro hac vice to receive or make service of papers through a New York attorney of good standing before the court and who has an office in New York, without making that New York attorney a local counsel of record. This would have left the New York attorney responsible only for those activities undertaken in the course of the limited engagement to receive or serve papers. Such a departure from current practice, in effect formalizing the creation of a New York “mail drop,” would theoretically comport with modern notions of client sovereignty and containment of legal expense. But, in light of the basic proposal to relax the “association” rule, coupled with a restructuring of the pro hac vice rules, the Committee concluded that this scheme would make little practical sense. Under the Committee’s proposals, clients and out-of-state counsel will still be free formally to engage New York attorneys as local counsel. They will also be free to consult with New York attorneys on a less formal basis concerning matters of practice, court procedure and substance, and to seek the assistance of New York professionals for the filing or service of papers in New York actions, all without creating a formal attorney-client relationship.
(2) Admission Fees: The Committee recognizes that the New York courts may wish to impose a requirement that attorneys admitted pro hac vice pay a modest fee for such admission, as is the practice in other courts. The funds could be earmarked for deposit into a client protection fund or for other appropriate purposes.42 The Committee believes that such a requirement is not unreasonable, and would not unduly burden the opportunity for foreign attorneys to practice in the New York courts pro hac vice.
(3) Limitation on Number of Appearances: The Committee also considered whether to recommend limitations on the number of new actions or proceedings in which an out-of-state attorney may be admitted in New York pro hac vice during any given calendar year.43 The Committee concluded, however, that no meaningful purpose is served by such restrictions, and that the numerical limitation itself could only be set arbitrarily.
(4) Prevention of Abuses Involving Non-Admitted Attorneys With Substantial Presence in the Forum State: Some states prohibit the admission pro hac vice of an attorney who is either a resident of the forum state, regularly employed in that state, or regularly engaged in substantial professional, business or other activities in that state.44 In order to prevent abuse of the privileges that would be extended under the Committee new local counsel rules, while maintaining the integrity of New York’s regular bar admission requirements, the Committee recognizes that some safeguards along these lines may be appropriate.
2. Abolition of the Local Counsel Requirement In the New York Federal Courts
The Committee supports the abolition of the association rule in the federal district and bankruptcy courts in New York.45 In contrast to the multi-tiered structure and jurisdictional scheme of the New York state courts, and the myriad institutional and individual judges’ rules and customs within those courts, the New York federal courts operate as part of a larger national judiciary with long-standing rules of national applicability. There is, in addition, an extensive body of precedent decided under those rules; while that jurisprudence historically has been widely available to practitioners throughout the nation through national reporters and court and law school libraries, among other channels, modern technology has made that information more widely and speedily accessible to the profession generally.
The Committee believes that there is basic uniformity in practice and procedure among the four federal districts in New York and their counterpart districts and jurists in the federal judiciary. The existence of federal rules of civil and admiralty procedure, criminal procedure, evidence, and bankruptcy procedure, militate against the notion that local attorneys must be retained to assure adherence to the practices and procedures of the various courts or to maintain quality and consistency in practice. The Committee believes as a general matter that out-of-state practitioners are as likely as local professionals to be familiar with federal rules of procedure.46 The district courts, moreover, generally hear a relatively steady subject matter of cases under their federal question jurisdiction, in addition to non-federal substantive disputes based on the diversity of the parties’ citizenship. The bankruptcy courts, as well, deal with a persistent federal subject matter, although they are frequently called upon to adjudicate issues of property and related rights based on local, state or foreign non-bankruptcy law. The Committee believes that out-of-state attorneys are equally likely to have dealt with such cases in their home states’ federal district and bankruptcy courts.47
Finally, although New York remains a central forum for commercial disputes,48 the Committee does not believe that the substances of those disputes necessarily requires the engagement of New York attorneys, whether in federal or state court. The Committee has confidence that the roster of attorneys qualified to litigate matters before the federal courts is truly nationwide.49
The Committee believes that, in the absence of the association rule, New York federal courts should adopt local rules granting all district judges the authority to exercise their discretion, based on facts and circumstances in particular cases, sua sponte or on motion, to require parties to engage local counsel or to grant other appropriate relief.50
B. Revision of Pro Hac Vice Admission Rules In the New York State Courts
The Committee believes that a number of changes should be made for pro hac vice rules in the New York state courts in order to create a common scheme of regulation and practice.51 First, the Committee believes that a single state-wide rule should be enacted to govern the practices and procedures for the admission of out-of-state attorneys pro hac vice, and the number of matters in which an attorney may obtain such admission during any calendar year. Second, the new rule should clearly state that attorneys admitted to practice pro hac vice may engage in all activities and proceedings in the action, whether before, at or after trial. These changes should be made whether or not the local counsel requirements are changed.
1. Enactment of A Single Pro Hac Vice Rule for All New York State Courts
The Committee recommends that the New York Court of Appeals, or the New York State Legislature, implement a single, common rule of state-wide application to regulate pro hac vice admissions in all New York state courts. This rule would establish common standards and procedures for the admission of out-of-state attorneys pro hac vice. In addition, the Committee recommends the adoption of a new rule that would clearly permit non-New York attorneys to participate in all pre-trial, trial and post-trial aspects of actions or special proceedings before New York state courts of record.
2. Standardized Application and Disclosure Requirements for Pro Hac Vice Attorneys
The Committee recommends that the new rule prescribe that each attorney seeking admission pro hac vice in any New York state court of record must submit a verified application for admission. The application should contain the following information, under the penalty of perjury.52
a. A statement of the applicant’s full name (and any aliases), residence and business addresses;
b. A list of all jurisdictions in which the applicant is admitted to practice law (on other than a pro hac vice basis), the date of each such admission, and a statement whether applicant is or is not in good standing in each such jurisdiction;
c. A statement of applicant’s education background and major areas of professional activities since his/her initial admission;
d. A statement whether the application has ever been held in contempt of any court, censured in a disciplinary proceeding (whether private or public), suspended or disbarred by any court or admonished by any disciplinary committee of any organized bar or bar association, and/or is the subject of any then-pending complaint seeking sanctions or disciplinary relief before any court. If the response is affirmative, the applicant should submit to the court a separate confidential statement, under seal, specifying all details, dates and facts concerning the response, and such other information (including any mitigating or exculpatory facts or circumstances that may be pertinent);
e. The name of all cases within the prior two years in which the applicant was granted leave to appear pro hac vice in any New York state court of record, and all cases in which the applicant’s application for such admission was denied;
f. A certificate that the applicant: (1) has read and is familiar with the provisions of the New York Judiciary Law, the New York Civil Practice Law and Rules, and any applicable New York court act pertaining to the jurisdiction of and venue in the court in which the action or proceeding is pending; (2) has read and is familiar with, for a civil action or proceeding, the New York Civil Practice Law and Rules, or for a criminal action or proceeding, the New York Criminal Procedure Law and the New York Penal Law; (3) has read and is familiar with the rules of practice and procedure of the court in which the action or proceeding is pending; and (4) has read, is familiar with, and agrees to comply with, the standards of professional conduct imposed upon members of the New York (including the rules of court governing the conduct of attorneys and the Disciplinary Rules of the Code of Professional Responsibility adopted as joint rules of the Appellate Divisions);53
g. A certificate that the application will be subject to the jurisdiction of the courts of New York with respect to any act occurring during the course of the applicant’s participation in the action or proceeding, including the imposition of sanctions and/or disciplinary relief.
The Committee also considered whether a member of the New York bar should be required to submit an affidavit in support of the out-of-state attorney’s application for admission. Most courts require such information, or similar submissions, as evidence of the applicant’s character, standing, and professional qualifications in the context of applications for plenary admission. The Committee believes, however, that the probative value of such affidavits or submissions is marginal, at best. Such rules require little more than conclusory statements by the attesting attorney, and are easily fulfilled. But for the risk of perjury, there appears to be no meaningful exposure to the sponsor for the submission. Accordingly, the Committee does not believe that a sponsor’s affidavit should be required.
3. Disposition of Pro Hac Vice Applications by the Court
The Committee recommends that the new rule provide that (a) the filing of the applicant’s certificate will operate as a motion for such admission pro hac vice, and (b) the application will be granted for good cause shown and in the discretion of the court.55 Any determination of the request, whether before or after the formal appearance of the adversary, should be subject to reconsideration or modification at any time during the action, upon motion and an opportunity for a hearing. The court, on its own motion or upon motion of any party, may reopen the determination and may, as warranted by the facts and circumstances, and in the discretion of the court, revoke any pro hac vice admission previously granted in the action, revoke any leave previously granted in the action to proceed without local counsel, require additional or new local counsel,56 or enter any other orders necessary and appropriate in the interests of justice.57
The Committee recommends that, in considering the motion and the existence or absence of sufficient cause to grant the request, the court should have broad discretion to consider such factors as: the timeliness of the motion, the nature of the action, the prejudice and/or expense that the client may incur, the anticipated scope of proceedings in the action (including judicial involvement in pre-trial discovery proceedings and pre-trial motion practice), the attorney’s credentials and qualifications, whether the state in which the attorney’s business is domiciled permits reciprocal treatment of New York attorneys; geographic considerations (i.e., delays or inconvenience posed by the possible distance of the attorney from the court, viewed in light of the nature and anticipated scope of the action and the extent of possible judicial involvement in pre-trial proceedings), the attorney’s prior record of discipline or sanctions, and any other facts and circumstances presented by the applicant party or any adversary party or counsel.58
4. Admission of Out-of-State Attorneys As Appellate Counsel Pro Hac Vice
Notwithstanding the foregoing proposal for general modification of the rules for admission of attorneys pro hac vice in courts of record in New York, the Committee believes that the New York Court of Appeals and the Appellate Divisions should be granted specific authority under the new rules to permit argument in particular cases or appeals by attorneys who are not members of the New York bar, but who are licensed to practice in another jurisdiction and who have special expertise in a field affected by the proceeding.59
With the reality that the practice of law, and the conduct of litigation, in particular, has become increasingly multi-state in nature, the Committee believes that archaic rules regulating admission of attorneys pro hac vice and the association rule should be seriously revisited. Profound, ongoing changes in the nature, geography, logistics, technology and economics of law practice lead the Committee to conclude that the association rule, in the case of the New York state courts, should be overhauled and, in the case of the New York federal courts, abolished.
Although the Committee believes that many non-New York attorneys and clients will continue to seek the advice and services of New York attorneys, either as primary counsel or as actively-participating local counsel in particular matters in the New York courts, such associations with New York attorneys should be optional, not mandatory. The Committee therefore seeks formally to maximize the choices available to out-of-state clients and litigants, without unnecessarily chilling or burdening client preferences and current practices.
Finally, recognizing the importance of removing barriers to clients’ selection of litigation counsel outside their home forums and of reducing excess expense and logistical burdens on litigants, the Committee hopes that New York’s innovation in offering reciprocal relief from the association rule to out-of-state attorneys will prompt other states – and preferably all states – to enact or promulgate comparable rules.
March 30, 1998
THE COMMITTEE ON PROFESSIONAL RESPONSIBILITY
John B. Harris, Chairman
Eric W. Golden, Secretary
Hon. Fritz W. Alexander, II
William D. Anderson, Jr.
Robert J. Anello
Jonathan I. Blackman
Wayne A. Cross
David S. Douglas
Prof. Charles A. Ehren, Jr.
Michael S. Feldberg
Eugene M. Gelernter
David L. Goldberg
Rosalind M. Gordon
Jerome I. Katz
Alan M. Klinger
Raymond A. Levites
Richard Levy, Jr.*
Hal R. Lieberman
Jeanne M. Luboja
Douglass B. Maynard
Guy T. Petrillo
Morton L. Price**
David M. Rubin
Emily J. Sack
Robert M. Simels
Jerome G. Snider
Beverly F. Sowande
William A. St. Louis
Debra M. Torres
Edward E. Vassallo
R. Paul Wickes
Laurence E. Wiseman
Prof. Ellen C. Yaroshefsky
* Member of the Subcommittee on Local Counsel and Pro Hac Vice Rules. Principal author of this Report.
** Member of the Subcommittee on Local Counsel and Pro Hac Vice Rules.
1 Preliminary Note: There are few published authorities that specifically concern the purpose and operation of the association requirement and pro hac vice rules in the New York state and federal courts. Given the relative similarities among the pertinent rules adopted in many other courts around the nation, the Committee believes that it is useful to refer to such materials in understanding the New York rules and the Committee’s recommendations set forth below. Accordingly, the notes to this Report include references to decisions and secondary materials concerning the rules and practices of other jurisdictions.
2 This recommendation comports with a position advocated long ago by this Association to the United States Court of Appeals for the Second Circuit, but which was not then adopted by the court:
The Association of the Bar of the City of New York urges us to take an even broader ground that would render the participation of a licensed in-state lawyer irrelevant. A good deal can be said for such a position; for example, in the case just put of the corporation having nationwide operations, it would seem absurd that when the out-of-state trademark specialist goes to a local branch, he should be required to obtain the assistance of a resident general practitioner for whose views he would have little regard. Yet there is also a case for the other side. The disparity in requirements for admission to the bar gives a state maintaining high qualification standards some interest in seeing that its residents do not take action even on a federal right solely on the advice of a lawyer from another state; moreover, what is basically a federal claim or defense may depend in part on an “issue or claim which has its source in state law.”
Spanos v. Skouras Theatres Corp., 364 F.2d 161, 171 (2d Cir.) (Friendly, J.) (citation omitted), cert. denied, 385 U.S. 987 (1966).
This proposal parallels a 1996 recommendation of the Committee on the Federal Courts of the New York County Lawyers’ Association. See generally New York County Lawyers’ Association, Report of the Committee on the Federal Courts on Pro Hac Vice Admissions to the Federal Courts, May 31, 1996.
The Federal Practice Section of the Connecticut Bar Association recently considered, but rejected, a similar proposal for the Connecticut federal court. “On the Table,” Conn. L. Trib., April 28, 1997.
3 See In re Snyder, 472 U.S. 634 (1984) (admission of an attorney to practice law is a privilege, not a right); Leis v. Flynt, 439 U.S. 438 (1979) (pro hac vice admission of an out-of-state attorney is not a constitutionally protected interest).
4 The regulation of pro hac vice admissions historically rests within the sound discretion of the courts considering such applications. See Pravda v. County of Saratoga, 224 A.D.2d 764, 637 N.Y.S.2d 509 (3d Dep’t 1996) (trial court did not abuse its discretion in allowing foreign counsel to appear for the limited purpose of argument on a motion to dismiss); United States v. Ries, 100 F.3d 1469 (9th Cir. 1996) (upholding trial court’s denial of motion for admission pro hac vice, where out-of-state counsel strongly suggested though his behavior that he would not abide by the court’s rules and practices, nor be readily answerable to the court); Panzardi-Alvarez v. United States, 879 F.2d 975 (1st Cir. 1989), cert. denied, 493 U.S. 1082 (1990); Pollitt v. General Motors Corp., 894 F.2d 858, 861 (6th Cir. 1990) (revocation of pro hac vice status previously granted to counsel rested within the trial court’s discretion; trial judge may consider the effects of the applicant’s past conduct on the on the administration of justice within the court); United States v. Collins, 920 F.2d 619, 620 (10th Cir. 1990) (court may consider if attorney seeking pro hac vice admission will provide competent representation and is ethically fit for such admission, but must articulate reasonable grounds to deny such an application), cert. denied, 500 U.S. 920 (1991); United States v. Gorman, 661 F. Supp. 1087, 1988 (D. Minn. 1987) (district court has authority to deny application for admission when court is not satisfied that applicant possesses good private and professional character, even though applicant was previously admitted to practice in a state court; record contained evidence of pro hac vice applicant’s past unprofessional conduct and substance abuse, and that the client had always been well represented in the action by local counsel); D.H. Overmyer Co. v. Robson, 750 F.2d 31 (6th Cir. 1984) (court has inherent authority to determine who may be granted the privilege of appearing pro hac vice; decision on application rests in court’s discretion and comport with the court’s rules); Thomas v. Cassily, 249 F.2d 91 (4th Cir. 1957), cert. denied, 355 U.S. 958 (1958); Thoma v. A.H. Robins Co., 100 F.R.D. 344, 348 (D.N.J. 1983) (“[w]hile the decision to admit out-of-state counsel is in the sound discretion of the court, it may not be exercised arbitrarily”); Hermann v. Summer Plaza Corp., 201 Conn. 263, 513 A.2d 1211 (1986) (in considering a motion for admission pro hac vice, the court should respect a party’s request to employ counsel of his own choice, unless a legitimate state interest is adversely affected by the admission of out-of-state counsel). See also People v. Epton, 248 F. Supp. 276, 277 (S.D.N.Y. 1965) (on petition for removal of state court criminal proceeding; state court’s refusal to admit attorney pro hac vice held not to be an abuse of discretion under applicable state rules promulgated by the New York Court of Appeals). The Second Circuit recently admonished that, even where the trial court is faced with an “irritating [out-of-state] attorney” the judge “must strive to be a model of patience and impartiality.” Santa Maria v. Metro-North Commuter R., 81 F.3d 265 (2d Cir. 1996) (vacating and remanding case for new trial based, among other things, on trial judge’s attitude, treatment of plaintiff’s out-of-state counsel (who was not formally admitted pro hac vice), and direction to plaintiff to retain new counsel midway through trial).
5 The pertinent rules of the District Courts and Bankruptcy Courts in each of the four federal districts in New York State and the United States Court of the Appeals for the Second Circuit are summarized below:
SOUTHERN AND EASTERN DISTRICTS:
District Courts: S.D.N.Y. & E.D.N.Y. Civ. R. 1.3(c) (any attorney in good standing of the bar of any state or federal district court may be admitted to argue or try a particular case in whole or in part, upon motion and upon filing a current certificate of good standing; only an “attorney who has been so admitted or who is a member of the bar of this court” may appear for parties, sign stipulations, or receive payments upon judgments or orders of the court); S.D.N.Y. & E.D.N.Y. Crim. R. 1.1(b) (incorporating local civil rules regulating admission of attorneys).
The text of the revised local rules jointly promulgated by these Districts on April 15, 1997 suggests that both courts have now dispensed with the “association rule.” Prior to April 15, 1997, General Rule 3(a) of the Southern District provided that
If a judge of this court so requires, an attorney not having an office within the Southern or Eastern District of New York shall not appear as attorney of record without designating a member of the bar of either district having an office within either district upon whom service of papers may be made.
Former S.D.N.Y. Gen. R. 3(a) (adopted Oct. 26, 1983). This rule was not adopted by the Eastern District. The newly-revised joint rules do not include this provision, or any comparable restriction. Although there was no public explanation for this omission, a joint committee which reviewed this rule for both Districts recommended abolition of the local counsel requirement. See Final Report of the Joint Committee on Local Rules Concerning the Local Civil Rules of the Southern and Eastern Districts of New York, Nov. 12, 1996, at App. 2.
Bankruptcy Courts: Bankr. S.D.N.Y.R. 2090-1(b)-(c) (an attorney in good standing of the bar of any state or federal court may be admitted for a particular matter, upon motion; attorney for a debtor or petitioning creditors who is permitted to practice but does not have an office in the district must designate for service of papers a member of the district bar with an office in the district); Bankr. E.D.N.Y.R. 4(b) (upon motion, a member in good standing of the bar of any state or federal court may be admitted for a particular matter).
District Court: N.D.N.Y.R. Practice 83.1(e) (any attorney in good standing of the bar of any state or federal district court may be admitted to argue or try a particular case in whole or part, upon motion).
Bankruptcy Court: Bankr. N.D.N.Y.R. 910.2(b)-(c) (an attorney member in good standing of the bar of any state or federal court may be admitted for a particular matter, upon motion and upon filing a certificate of good standing; the court may require an attorney who does not have an office in the district to designate a local member of the court for service of papers).
District Court: W.D.N.Y. Civ. R. 83.1(j), 83.2, and Crim. R. 57.2(i), 57.3 (attorney duly admitted to any state, federal or foreign country court may be admitted in the discretion of the court to participate before the court in any matter; attorney who does not maintain an office in the district may commence an action, but to continue as counsel of record such attorney must apply within 30 days for permission to proceed without local counsel; the court may grant such application in its discretion for good cause shown; if granted, the attorney must apply for admission pro hac vice; attorney not admitted to the court may sign pleadings, motions and discovery papers only if a local counsel is appointed or if the court has granted the application to waive the local counsel requirement).
Bankruptcy Court: Bankr. W.D.N.Y.R. 2(E) (attorney admitted to practice in any state, territory, district or foreign country may be admitted pro hac vice under such conditions as may be appropriate). See also W.D.N.Y. Civ. R. 83.1(k) (practice in bankruptcy matters before district or bankruptcy judges is limited to attorneys admitted under the District Court’s rules of admission, including attorneys admitted pro hac vice; the local counsel requirement of the District Court’s rules shall not apply to bankruptcy matters unless otherwise directed by a district or bankruptcy judge in a specific matter).
2d Cir. R. 46(d) (“Under exceptional circumstances an attorney may be admitted to argue an appeal pro hac vice. Such admission will be extended as a matter of course to a member of the Bar of a District Court within this Circuit who has represented a criminal defendant at trial and appears for that defendant on an appeal taken pursuant to 18 U.S.C. § 3006A, or who is acting for a party in an appeal taken in formal pauperis.”).
6 E.g., In re Rappaport, 558 F.2d 87, 89 (2d Cir. 1977); United States v. Collins, 920 F.2d 619, 620 (10th Cir. 1990), cert. denied, 500 U.S. 920 (1991). Compare S.D.N.Y. & E.D.N.Y. Civ. R. 1.5(b)-(c)(discipline and other relief in the case of attorneys admitted and not admitted to the bar of the court) and W.D.N.Y. Civ. R. 83.3 (“any person admitted to practice in this Court” may be disciplined or disbarred pursuant to stated procedures) with D.N.J. Civ. R. 101.1(c)(4) (attorney admitted pro hac vice is within the disciplinary jurisdiction of the court) and N.D. Tex. Civ. R. 83.9(c) (by appearing in any action, an attorney admitted pro hac vice becomes subject to the rules of the court).
7 In re Rappaport, 558 F.2d at 89.
8 E.g., S.D.N.Y. & E.D.N.Y. Civ. R. 1.5; N.D.N.Y.R. 83.4; W.D.N.Y. Civ. R. 83.3.
9 See Long v. Quantex Resources, Inc., 108 F.R.D. 416 (S.D.N.Y. 1985) (holding, under Fed. R. Civ. P. 11, that “at the very least, a local counsel that signs the papers of foreign counsel must read the papers, and from that have a basis for a good faith belief that the papers on their face appear to be warranted by the facts asserted and the legal arguments made, and are not interposed for any improper purpose.”); Ingemi v. Pelino & Lentz, 866 F. Supp. 156, 162 (D.N.J. 1994) (“Even if pro hac vice attorneys attempt to delegate solely routine or ministerial tasks to local counsel, local counsel remains counsel of record and wittingly or unwittingly exposes itself to liability for penalties such as sanctions.”), citing Itel Containers Int’l’ Corp. v. Puerto Rico Marine Mgt., Inc., 108 F.R.D. 96 (D.N.J. 1985); Nash v. United States Dep’t of Justice, 955 F. Supp. 146, 149 n.4 (D.D.C. 1997) (in a case where local counsel’s role appeared limited to signing pleadings prepared by the out-of-state counsel, “the court expects [that local counsel] to review Rule 11(b) of the Federal Rules of Civil Procedure, and his signature on the pleading will be interpreted to mean that he considers it to be in full compliance with Rule 11.”). Compare Golden Eagle Distrib. Corp. v. Burroughs Corp., 103 F.R.D. 124, 125 n.1 (N.D. Cal. 1984) (local counsel must satisfy itself before signing that the pleading or paper complies with applicable rules; but in this case, “in the absence of an indication of active participation in the preparation or decision to file the paper by local counsel -- for which there is none here -- it does not seem appropriate to subject them to sanctions other than criticism for their apparent neglect” (emphasis added)). But see D. Conn. R. 2(d) (local attorney who sponsors admission pro hac vice of non-resident attorney may be excused from further attendance in court, but is not excused from any other obligations of an appearing attorney).
10 E.g., Penguin Books USA, Inc. v. New Christian Church of Full Endeavor, Ltd., 1997 U.S. Dist. LEXIS 4301 (S.D.N.Y. April 7, 1997) (denying defendants’ motion for leave to file a third-party complaint where their foreign counsel, who had been granted permission to appear pro hac vice, failed to designate local counsel or to file a certificate of active standing from his home court). See also Urbatek Sys., Inc. v. Lochrie (In re Lochrie), 78 B.R. 257, 260 (Bankr. 9th Cir. 1987) (notwithstanding directive in local bankruptcy court rule requiring out-of-state attorney to “associate” with local counsel, bankruptcy court held to have properly exercised its discretion by permitting the attorney either to associate with local counsel or to file a summary judgment motion, and thereby appear once for a possible end to the proceeding through summary judgment; the court’s order “clearly indicated” that any other appearance would require association with local counsel).
11 N.Y. Ct. App. R. 520.11(a)(1), (b), 22 NYCRR 520.11(a)(1), (b). See Matter of Clifford J. Fearn Family Trust No. 1, N.Y.L.J., Sept. 5, 1996, at 26 (Surr. Ct. Suffolk Co.)(denying application because of failure of foreign counsel to associate with New York local counsel; “[w]hile the court is sympathetic to the objectant’s desire to benefit from the experience possessed by her attorney, [that attorney’s] failure to comply with the requirements for admission constrains the court to deny the application.”). This rule does not specifically require the associated attorney to maintain an office in New York, but only to be admitted to the New York bar. Section 470 of the New York Judiciary Law, however, requires that the New York-licensed attorney must maintain an office “for the transaction of law business [in] the state” in order to practice in the New York courts, although the attorney may reside in another state. N.Y. Jud. L. § 470 (McKinney 1983). See Keenan v. Mitsubishi Estate, 228 A.D.2d 330, 644 N.Y.S.2d 241 (1st Dep’t 1996); Lichtenstein v. Emerson, 171 Misc. 2d 933, 936-37, 656 N.Y.S.2d 180, 181 (Sup. Ct. N.Y. Co. 1997) (summons and complaint filed by out-of-state law firm in which no partner or associate was a member of the New York bar was a nullity, which required dismissal of the action; non-resident New York attorney, whose name appeared on the complaint as “of counsel” to plaintiff’s law firm, did not maintain a bona fide office in New York for the transaction of law business that would satisfy Judiciary Law § 470); Darden v. Yonkers Motor Corp., N.Y.L.J., Aug. 1, 1997, at 28 (Yonkers City Ct.) (Connecticut plaintiff’s engagement of New York counsel after commencement of action by out-of-state counsel did not satisfy local office statute); White R. Paper Co., Ltd. v. Ashmont Tissue, Inc., 110 Misc. 2d 373, 441 N.Y.S.2d 960 (N.Y.C. Civ. Ct. Bronx Co. 1981). Two recent federal court decisions upheld in-state office requirements for attorneys under state laws in New Jersey and West Virginia. See Tolchin v. Supreme Ct. of N.J., 111 F.3d 1099 (3d Cir.), cert. denied, 118 S. Ct. 435 (1997); Parnell v. Supreme Ct. App. of W. Va., 110 F.3d 1077 (4th Cir. 1997) (member of West Virginia state bar who resides in West Virginia but does not practice on a daily basis in an office within the state did not qualify to sponsor an out-of-state attorney for admission pro hac vice in the West Virginia courts). The Committee previously recommended the elimination of local office requirements. See “Local Office Requirements Should Be Abolished,” 48 Rec. 3 (1993).
12 N.Y. Ct. App. R. 520.11(b), 22 NYCRR 520.11(b).
13 N.Y. Ct. App. R. 520.11(c)(1), 22 NYCRR 520.11(c)(1).
14 N.Y. Ct. App. R. 520.11(c)(2), 22 NYCRR 520.11(c)(2).
15 See N.Y. App. Div. 1st Dep’t R. 602.2(a), 22 NYCRR 602.2 (foreign attorney “may be admitted pro hac vice to participate in the trial or argument of a particular cause” (emphasis added)); N.Y. App. Div. 2d Dep’t R. 690.3(a), 22 NYCRR 690.3(a) (same); N.Y. App. Div. 3d Dep’t R. 805.3(a), 22 NYCRR 805.3(a) (application for admission pro hac vice “to participate in the trial or argument of any particular cause” (emphasis added)) The Third Department rules specifically direct that an order granting admission pro hac vice must “specify the scope and extent of the authorized legal services, the courts in which applicant may appear and the period of authorization.” N.Y. App. Div. 3d Dep’t R. 805.3(c), 22 NYCRR 805.3(c). The Fourth Department’s rule on pro hac vice admissions simply adopts the procedure for admission pro hac vice under the Court of Appeals Rules without any language concerning the scope of activities in which the foreign counsel may participate. See N.Y. App. Div. 4th Dep’t R. 1022.9(a), 22 NYCRR 1022.9(a) (referring to N.Y. Ct. App. R. 520.11, 22 NYCRR 520.11).
16 Compare Largeteau v. Smith, 197 A.D.2d 832, 603 N.Y.S.2d 62 (3d Dep’t 1993) (Third Department rule construed to prohibit out-of-state counsel from representing client in pretrial depositions) with Johnson v. Mesch Eng’g, P.C., 212 A.D.2d 970, 624 N.Y.S.2d 710 (4th Dep’t 1995) (Fourth Department rule construed not to prevent out-of-state counsel from participating in pretrial activities, in addition to trial), 18 Int’l Ltd. v. Interstate Express, Inc., 116 Misc. 2d 66, 455 N.Y.S.2d 224 (Sup. Ct. N.Y. Co. 1982) (the use of the word “participate” in the pro hac vice rule is not restrictive to connote a requirement for non-New York counsel to associate with New York local counsel, but rather to confer wide discretion on the court in determining the scope of the admission pro hac vice), and Bivens v. American Baler Co., 166 Misc. 2d 198, 632 N.Y.S.2d 774, 775 (Sup. Ct. Kings Co. 1995). In Bivens, all of the parties stipulated to an out-of-state attorney’s admission pro hac vice in the action. One defendant later moved to vacate such admission to prevent the attorney from participating in pretrial discovery. The court denied the motion, concluding, contrary to Largeteau, that “there is no aspect of the litigation process which the [pro hac vice rule] has expressly excluded. On the contrary, argument is often required in defining the parameters of pre-trial discovery and pretrial discovery has become an almost indispensable predicate for trial practice…. Pro hac vice admission, in furtherance of New York’s policy favoring representation by counsel of one’s own choosing, should not be determined by semantic niceties.” Accord, People v. Leslie, 232 A.D.2d 94, 662 N.Y.S.2d 761, 764-65 (1st Dep’t 1997) (First Department rule construed to encompass matters of trial preparation, including pretrial discovery, citing Johnson v. Mesch Eng’g, supra).
17 See N.Y. App. Div. 1st Dep’t R. 603.1(a), 22 NYCRR 603.1(a) (First Department rules regulating conduct of attorneys apply to “all attorneys who are admitted to practice, reside in, commit acts in or who have offices in this judicial department ... [and] any attorney from another [jurisdiction] admitted pro hac vice to participate in the trial or argument of a particular cause in any court in this judicial department, or who in any way participates in any action or proceeding in this judicial department” (emphasis added)); N.Y. App. Div. 2d Dep’t R. 806.1, 22 NYCRR 806.1 (Second Department rules regulating conduct of attorneys apply to “all attorneys who are admitted to practice, reside in, commit acts in or who have offices in [this] Department ... [and] any attorney from another [jurisdiction] admitted pro hac vice to participate in the trial or argument of a particular cause in any court in [this] Department, or who in any participates in an action or proceeding therein” (emphasis added)); N.Y. App. Div. 3d Dep’t R. 806.1, 22 NYCRR 806.1 (Third Department rules regulating conduct of attorneys applies “to all attorneys who are admitted to practice, reside or have an office in, or who are employed or transact business in” the department (emphasis added)); N.Y. App. Div. 4th Dep’t R. 1022.1, 22 NYCRR 1022.1 (Fourth Department rules regulating conduct of attorneys applies “to all attorneys who are admitted to practice, or have offices or practice within” the department (emphasis added)).
18 This is not to suggest that forum courts will decline to address issues of attorney misconduct directly and immediately in appropriate cases. E.g., Baldwin Hardware Corp. v. Franksu Enterprise Corp., 78 F.3d 550, 560-62 (Fed. Cir.) (upholding, as appropriate exercise of discretion, trial court’s order barring an out-of-state defense attorney in patent action from appearing before the trial judge in any future cases, as a sanction for unprofessional conduct), cert. denied, 117 S. Ct. 360 (1996); In re Richard J. Rubin, N.J.L.J., July 8, 1996 (N.J. Sup. Ct. May 20, 1996) (order barring a New York attorney from appearing pro hac vice in New Jersey courts for three years, based on misconduct during a previous pro hac vice admission); Paramount Communics. Inc. v. Viacom Inc., 637 A.2d 34, 51-57 (Del. 1994) (recounting objectionable conduct by Joseph Jamail, a Texas attorney not admitted in Delaware, in the defense of a deposition taken in Delaware by a New York attorney (also not admitted pro hac vice) in a Delaware court action; court states that it may be fair to take into account the behavior in the event that the attorney seeks future admission pro hac vice, and admonishes that counsel admitted pro hac vice are “expected to put an end to conduct such as that perpetrated by Mr. Jamail on this record”).
19 See Tolchin v. Supreme Ct. of N.J., 111 F.3d 1099, 1103 (3d Cir.) (describing rationales underpinning 1966 rejection of proposal that would have eased New Jersey rules regulating appearances by attorneys lacking a “bona fide office” in the state), cert. denied, 118 S. Ct. 435 (1997); Ingemi v. Pelino & Lentz, 866 F. Supp. 156, 162 (D.N.J. 1994), quoting Hoffman v. Marino Games, Case No. 90-267(NHP) (D.N.J. Oct. 31, 1990). See generally Misher, “Local Associate Counsel in the Federal District Courts: A Call for Change,” 67 Cornell L. Rev. 345 (1982); Kalish, “Pro Hac Vice Admissions and Proposal,” 3 So. Ill. U.L.J. 367 (1979); New York County Lawyers’ Association, Report of the Committee on the Federal Courts on Pro Hac Vice Admissions to the Federal Courts, May 31, 1996, at 3, 29.
20 18 Int’l Ltd. v. Interstate Express, Inc., 116 Misc. 2d 66, 455 N.Y.S.2d 224, 226 (Sup. Ct. N.Y. Co. 1982). But see Enquire Printing & Publ’g Co. v. O’Reilly, 193 Conn. 370, 477 A.2d 648 (1984) (the nature and difficulty of the case are not relevant to the consideration of a pro hac vice application, and lead to mistaken perceptions).
21 See, e.g., In re Admission Pro Hac Vice of Chokwe Lumumba, 526 F. Supp. 163 (S.D.N.Y. 1981) (application for admission pro hac vice denied where criminal defendant already was represented by two experienced criminal attorneys, and the record compelled the conclusion that a clear objective of the application, if granted, was to enable the applicant to engage in a publicity campaign beyond the limits of proper representation of a client); 18 Int’l Ltd. v. Interstate Express, Inc., 116 Misc. 2d 66, 455 N.Y.S.2d 224, 225-26 (Sup. Ct. N.Y. Co. 1982). Cf. Matter of Kasson, 141 N.J. 83, 600 A.2d 1187 (1995) (upholding discipline of out-of-state attorney who failed to maintain a bona fide office in New Jersey, because of the trial court’s difficulty locating the attorney during the litigation). See also Ross v. Reda, 510 F.2d 1172 (6th Cir. 1975) (on petition for writ of habeas corpus, circuit court ruled that state court’s denial of pro hac vice admission was properly denied where the attorney refused to limit out-of-court statements about the action, in violation of the forum’s rules and ethical canons prohibiting such disclosures).
22 In re Titus, 49 B.R. 75, 78 (W.D. Wis. 1985).
24 See Erbacci, Cerone & Moriarty, Ltd. v. United States, 923 F. Supp. 482, 485-86 (S.D.N.Y.) (denying pro hac vice application with prejudice, based on examples of attorney’s pre-application conduct demonstrating a failure to understand or comply with local rules, despite the applicant’s having averred familiarity with local practice and rules), rehearing denied, 166 F.R.D. 298 (S.D.N.Y. 1996); John K. Larkins, Jr., “Oral Argument on Motions,” Litig., Winter 1997, at 16 (“Associating local counsel should be considered whenever you appear in an unfamiliar ... particularly if your local counsel is also ‘local.’ Local counsel will, of course, be knowledgeable about the judge and local customs and practices of the bar. Just as important, local counsel can fulfill the traditional role of helping to blunt local prejudice.”).
25 Pro hac vice rules have been attacked as protectionism for the forum state’s bar by maximizing revenue-generating professional opportunities for local attorneys. Courts have not been receptive to such challenges. See 18 Int’l Ltd. v. Interstate Express, Inc., 116 Misc. 2d 66, 455 N.Y.S.2d 224, 225 (Sup. Ct. N.Y. Co. 1982) (pro hac vice and local counsel requirements are “not due to a monopolistic desire on the part of the state to keep New York lawyers employed”); Enquire Printing & Publ’g Co. v. O’Reilly, 193 Conn. 370, 477 A.2d 648 (1984) (economic protection of in-state attorneys is not a valid basis on which to deny a pro hac vice application).
26 See Leis v. Flynt, 439 U.S. 438, 449-50 (1979) (Stephens, J., dissenting) (“Interstate law practice and multistate law firms are now commonplace” and the bar is characterized by “increased specialization and high mobility”). Cf. Supreme Ct. of N.H. v. Piper, 470 U.S. 274 (1985) (attorney need not be a resident of the state in which the attorney maintains his or her office).
27 The Second Circuit, for example, sponsored a pilot program under which the advocates for parties in an appeal can participate in oral arguments through video-conferencing from remote facilities in Albany, New York, Rochester, New York, or Hartford, Connecticut. “Appeal Argued Via TV During Seminar,’” N.Y.L.J., Oct. 21, 1996, at 1. See also “Second Department Strives to Make Efficient Use of Limited Resources,” N.Y.L.J., Jan. 24, 1996, at S1 (reporting on efforts of Chief Judge Judith S. Kaye to expand ability for appeals to be transferred to any appellate department in New York State, while preserving attorneys’ ability to participate through television hookups); “Second Circuit Court Explores Video-Arguing,” N.Y.L.J., Dec. 4, 1995, at 1 (reporting on federal and state court use of two-way television systems for oral arguments). The use of telephonic arrangements for status conferences and motion practice also appears to be commonplace practice for federal courts in jurisdictions such as the Southern District of Florida and the Central District of California.
28 E.g., In re Electronic Means for Filing, Signing and Verification of Documents, Order No. M-97-421 (Bankr. S.D.N.Y. June 26, 1997), approving and implementing “Administrative Procedures for Electronically Filed Cases (Bankr. S.D.N.Y. June 26, 1997), and “Electronic Filing System User’s Manual (Bankr. S.D.N.Y. rev. June 18, 1997); see also S.D.N.Y. Civ. R. Appendix C (permitting receipt by the court of correspondence by telecopy, but not permitting filing of court papers by telecopy).
29 An example is the Public Access to Court Electronic Records (PACER) system used in the United States Courts.
30 See Bivens v. American Baler Co., 632 N.Y.S.2d 774, 775 (Sup. Ct. Kings Co. 1995). See also Leis v. Flynt, 439 U.S. 438, 452-53 (1979) (Stevens, J., dissenting) (acknowledging interest in allowing a client to be represented by counsel of its choice); Pravda v. County of Saratoga, 637 N.Y.S.2d 509 (3d Dep’t 1996). The right to select counsel of a client’s choosing, however, is not unfettered. Thus, the regulation of pro hac vice admissions should be considered in light of the “need to maintain the highest standards of professional responsibility, the public’s confidence in the integrity of the judicial and the orderly administration of justice.” United States v. Collins, 920 F.2d 619, 626 (10th Cir. 1990) (citations omitted), cert. denied, 500 U.S. 920 (1991). See also Chichelo v. Hoffman-La Roche Inc., 1997 U.S. Dist. LEXIS 16262, at *9 & n.3 (S.D.N.Y. Oct. 17, 1997) (granting motion to transfer federal court action from New York to New Jersey; although plaintiff’s counsel, a Connecticut-based attorney, was admitted in New York but not in New Jersey, “[p]laintiff’s argument that it will be unable to find affordable counsel skilled in the type of litigation contemplated here in New Jersey, and that New Jersey is an inconvenient forum for her present counsel, is not sustainable. The case should be assigned to the District Court sitting in Newark and counsel can be admitted pro hac vice[, which admission] defendant’s counsel indicated at oral argument that it would not oppose ....”).
31 The forum court presumptively has the inherent power to regulate the conduct of attorneys who appear before it. See Chambers v. NASCO, 501 U.S. 32 (1991). See also note 17 above.
32 N.Y. Code of Professional Responsibility D.R. 1-104, 22 NYCRR 1200.5.
33 For example, after the admission of an out-of-state attorney pro hac vice, must local counsel appear at all court conferences, oral argument and evidentiary proceedings before the court? Must local counsel physically sign all court papers? Must local counsel appear in discovery proceedings conducted in the action, wither inside or outside the forum state? Must local counsel participate in the negotiation and documentation of settlements?
34 See N.Y. Ct. App. R. 520.11(b), 22 NYCRR 520.11(b) (the New York attorney with whom pro hac vice counsel associates “shall be the attorney of record in the matter”). It is also clear from recent developments that these restrictions are enforced. See Certilman v. Becker, N.Y.L.J., Apr. 9, 1996, at 25 (Sup. Ct. N.Y. Co.) (action dismissed for lack of New York attorney following the closing of a Baltimore law firm’s New York branch office).
35 See note 8 above.
36 Many of these issues also arise when a client insists that the lawyer perform (or not perform) certain tasks in a specified manner. See generally “The Evolving Lawyer-Client Relationship, and Its Effect on the Lawyer’s Professional Obligations,” 51 Rec. 443 (June 1996).
37 See Awards of Costs and Imposition of Financial Sanctions for Frivolous Conduct in Civil Litigation, 22 NYCRR Pt. 130 (amendments effective Jan. 1, 1998, modeled after Fed. R. Civ. P. 11). The New York Legislature is also considering a proposal to simplify the structure of the New York courts by eliminating or consolidating various courts of inferior jurisdiction or special subject matter jurisdiction. The current proposal would create a two tiered system of district courts to handle all low level criminal and civil cases, and a supreme court to hear all other cases (with special divisions for family, probate, major civil and major criminal proceedings). See Hernandez, “Lawmakers Are Confident A Court-Reform Plan Will Pass Next Year,” N.Y. Times, Oct. 22, 1997, § B, at 1, col. 2. The Association’s Council on Judicial Administration recently endorsed a restructuring plan for the state court system. See “The Chief Judge’s Court Restructuring Plan, With Certain Modifications, Should be Adopted,” 52 Rec. 929 (1997).
38 This recommendation borrows from the model of the United States District Court for the Western District of New York. See W.D.N.Y. Civ. R. 83.2 (a):
An attorney who does not maintain an office in this District may commence an action. If such attorney wishes to continue as attorney of record, he or she shall, within 30 days of the initial filing, apply in writing for permission to proceed without local counsel, which application shall be granted for good cause shown and in the discretion of the Court. Such attorney shall also, as appropriate, apply for admission pro hac vice pursuant to [these Local Rules].
39 See pages 32-38 below for the Committee’s recommendations concerning revision of the pro hac vice admission rules in the New York state courts.
40 The Committee does not believe that this restriction is burdensome or excessive, given that in most cases a party should have or be able to engage satisfactory counsel to fulfill the minimum experience requirement.
The Committee recognizes that younger attorneys often participate in pro bono matters such as capital punishment proceedings and civil rights actions under programs sponsored by bar associations, courts and public interest groups. Senior attorneys from law firms normally oversee the participation of their junior colleagues in such engagements, thereby taking responsibility for the adequacy of the services. The Committee does not intend to restrict such activities by imposing a minimum experience requirement for out-of-state counsel.
41 See pages 32-38 below.
42 See, e.g., D.N.J. Civ. R. 101.1(c)(2) (upon admission pro hac vice, and for any year in which an attorney admitted pro hac vice continues to represent a client in a matter pending before the court, the attorney must made a payment to the New Jersey Lawyers’ Fund for Client Protection established under New Jersey state court rules); N.J. Ct. R. 1:20-1(b) (attorney admitted pro hac vice must make an annual payment to the Disciplinary Oversight Committee, for us in attorney discipline and fee arbitration systems).
43 See, e.g., D.C. Ct. App. R. 49(c)(1) (limiting an out-of-state attorney to a maximum of five pro hac vice appearances in the District of Columbia courts in any year).
44 See, e.g., Cal. R. Ct. 983(a); N.J. Civ. R. 1:21-2 (attorney admitted in another state and in good standing “who does not maintain in this state a bona fide office for the practice of law” may be admitted pro hac vice).
45 In 1996, a committee of the New York County Lawyers’ Association made a similar recommendation. See generally New York County Lawyers’ Association, Report of the Committee on the Federal Courts on Pro Hac Vice Admissions to the Federal Courts, May 31, 1996.
46 Unlike many other states, New York has not patterned its rules of procedure and evidence on the federal rules.
47 The Committee does not believe that variations in substantive law in diversity of citizenship cases justify retention of the association rule, although that category of cases conceivably could be excepted from a general repeal of the association rule.
48 See J. Zeevi & Sons, Ltd. v. Grindlays Bank (Uganda) Ltd., 37 N.Y.2d 220, 227, 333 N.E.2d 168, 172-73, 371 N.Y.S.2d 892, 898 (1975).
49 Recognizing that bankruptcy is a national practice, the National Bankruptcy Review Commission recently recommended that “[a]dmission to practice in one bankruptcy court … should entitle an attorney, on presentation of a certificate of admission and good standing in another district, to appear in the other bankruptcy court without the need for any other admission procedure.” National Bankruptcy Review Commission, Final Report 883 (Oct. 20,1997) (emphasis added). The Commission concluded that special local admission requirements burden creditors and their counsel, and impose additional expense that chills participation in bankruptcy cases and proceedings in jurisdictions remote to the creditor’s or its attorney’s home forum. The Commission, however, did not recommend any alteration of local counsel requirements Id. at 883-88.
50 While the courts may well have sufficient authority to take such actions under their inherent powers to regulate the conduct of attorneys appearing before them and to control their dockets, the Committee believes that the specific reservation of such authority will avoid any confusion on the matter.
51 The Committee does not propose any amendment to the pro hac vice admission rules of the federal courts in New York. Given that there are some variations among the districts (see note 5 above), the Committee recommends that those courts explore the promulgation of joint rules, as was done, for example, by the Southern and Eastern Districts of New York for civil and criminal cases and proceedings.
52 See N.Y. Ct. App. R. 520.11(c), 22 NYCRR 520.11(c); W.D.N.Y. Civ. R. 83.1(b).
53 The New York Disciplinary Rules are codified at 22 NYCRR Pt. 1200. This provision would specifically include the matrimonial rules.
54 E.g., N.Y. Ct. App. R. 520.12, 22 NYCRR 520.12 (every applicant for admission to practice must file, with the character and fitness committee appointed by the respective Appellate Division, affidavits attesting, to the knowledge of the affiants, that the applicant is of good moral character and possesses the general fitness to be an attorney). In some courts, such affidavits may only be submitted by local attorneys who have known the applicant for a minimum stated period of time and who, therefore, presumably have more than a nominal basis on which to make the attestation. E.g., S.D.N.Y. & E.D.N.Y. Civ. R. 1.3(a) (application for admission to the court must be accompanied by an affidavit of a person who has known the applicant at least one year, which describes the length and circumstances of the affiant’s knowledge of the applicant and the character and experience of the applicant; the affiant also must personally move the admission of the applicant at the call of the motion for admission).
55 See W.D.N.Y. Civ. R. 83.2(a).
56 See, e.g., Bankr. C.D. Cal. R. 102(d) (the court “may, in the exercise of discretion, require the designation of an attorney who is a member of the Bar of the Court and who maintains an office within this District as co-counsel with authority to act as attorney of record for all purposes.”).
57 Consistent with current rules relating to the imposition of sanctions, the Committee believes that, because of the potential for a party or its counsel to misuse the device of seeking reconsideration, remedies such as attorney’s fees, sanctions and/or disciplinary relief should be available to the respondent party if the request is found to be frivolous or made in bad faith.
58 Cf. 18 Int’l Ltd. v. Interstate Express, Inc., 116 Misc. 2d 66, 455 N.Y.S.2d 224 (Sup. Ct. N.Y. Co. 1982).
59 See, e.g., Cal. R. Ct. 983(e).