Report of the Unauthorized Practice of Law Committee

Ohio State Bar Association Council of Delegates November 2005 Meeting 19 Report of the Unauthorized Practice of Law Committee To the Council of Delegates: The OSBA Unauthorized Practice of Law Committee respectfully requests your consideration of the following proposal, marked as Exhibit A. Specifically, a proposed amendment to the Rules for the Government of the Bar of Ohio concerning admission to practice pro hac vice. Committee Comments: Respectfully submitted, John N. MacKay, Toledo Chair The Unauthorized Practice of Law Committee requests the Council of Delegates recommend to the Supreme Court of Ohio that it adopt an amendment to the Rules for the Government of the Bar of Ohio which provides a uniform process by which a lawyer not admitted to practice in Ohio may appear pro hac vice. It is generally based on ABA Model Rule 5.5, but differs in five respects: First, ABA Model Rule 5.5 has no effective means of determining whether a person maintains a systematic and continuous presence in Ohio for the practice of law. The proposed rule would resolve this deficiency by requiring central notification with the Supreme Court of Ohio for each admission pro hac vice. Initial notification would result in issuance of a number. Subsequently, notice to the Supreme Court would be required. This will provide a record of the number of times an attorney is admitted pro hac vice. Proof of malpractice insurance would be required. Second, ABA Model Rule 5.5 excludes administrative agency proceedings from coverage, and does not integrate with the authority of the Supreme Court of Ohio to regulate the practice of law. For example, Comment [9] of Rule 5.5 recently proposed by the Ohio Supreme Court Task Force on the Model Rules defers to administrative agencies in derogation of the constitutional responsibility of the Supreme Court of Ohio: Lawyers not admitted to practice generally in [Ohio]... may be authorized by... order of... an administrative agency... to appear before the tribunal or agency. The proposed Rule follows established Ohio law that the matter is regulated by the Supreme Court of Ohio. Third, the proposed Rule establishes a threshold of two times per year that a lawyer may appear pro hac vice, which, if exceeded, would require a lawyer to seek admission to practice in Ohio. Fourth, the proposed Rule clarifies the authority of the Supreme Court of Ohio to regulate the conduct of an out-of-state attorney. Fifth, the proposed Rule creates a presumption for admission pro hac vice subject to four exceptions. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44

20 Ohio State Bar Association Council of Delegates November 2005 Meeting Exhibit A Rule Proposed Amendment to the Rules for the Government of the Bar of Ohio as Recommended by the Unauthorized Practice of Law Committee of the Ohio State Bar Association. Rule on Pro Hac Vice Admission I. Admission in Pending or Anticipated Litigation before a Court or Agency A. Definitions 1. An alternative dispute resolution ( ADR ) proceeding includes all types of mediation and all other forms of alternative dispute resolution, whether arranged by the parties or otherwise, except binding arbitration in which [a] one or more of the parties is a resident of Ohio or in which [b][i] one or more of the parties has offices in Ohio and [ii] the subject of the arbitration arose in whole or in part in Ohio. 2. 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. 3. 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 (ii) practices no more than two times in any one year in this state, whether pursuant to admission pro hac vice or in other lawful ways and has malpractice insurance that provides coverage for practice within this state. 4. 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, suspended or inactive from practice in any jurisdiction. 5. Tribunal means a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity. 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

Ohio State Bar Association Council of Delegates November 2005 Meeting 21 6. This state refers to the State of Ohio. B. Authority of Court or Agency to Permit Appearance by Out-of-State Lawyer 1. Court Proceeding. Tribunals of this state may, in their discretion, admit an eligible out-of-state lawyer who has associated with local counsel in good standing, and has been retained to appear in a particular proceeding pending before such tribunal to appear pro hac vice as counsel in that proceeding. If the results of a proceeding are appealed, appearance in the appeal does not invoke the two case per year rule as set forth in A, 2, c, ii. This rule does not affect the requirement of making an application to be admitted pro hac vice in the appellate tribunal. 2. Administrative Agency or Legislative Body Proceeding. If practice before an administrative agency or legislative body of this state is limited to lawyers, the administrative agency or legislative body 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 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 tribunal. 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. Notification Procedure. 1. Notice Requirements. An eligible out-of-state lawyer seeking to appear in a proceeding pending in this state as counsel pro hac vice shall associate with local counsel in good standing, and file a notice with the Supreme Court of Ohio, the tribunal where the proceeding is filed and the parties and attorneys involved in the proceeding. Upon receipt of the notice, the Supreme Court of Ohio shall issue a permanent identification number to the attorney seeking admission pro hac vice. The out-of-state lawyer seeking admission pro hac vice must file the notice for each proceeding in which he or she wishes to appear. The notice must be accompanied by a certificate of insurance showing proof of malpractice insurance in an amount equal to or exceeding the minimum amount that, under state requirements for an Ohio lawyer, an Ohio lawyer is required to maintain to avoid giving notice to a client. The tribunal has the discretion to grant or deny the out-of-state lawyer admission to the case. 2. Objection to Notice. The Supreme Court of Ohio, tribunal, or a party to the proceeding may file an objection to the notice or seek the court s 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140

22 Ohio State Bar Association Council of Delegates November 2005 Meeting imposition of conditions to its being granted. The objection of a party must include an affidavit containing or describing information establishing a factual basis for the objection. The Supreme Court of Ohio, tribunal or objecting party may seek denial of the notice or modification of it. If the application has already been granted, the Supreme Court of Ohio, tribunal 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 admission pro hac vice. Ordinarily, admission 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 interest of parties to the proceedings other than the client(s) the applicant proposes to represent; c. may result in one or more of the clients that the applicant proposes to represent becoming at risk of receiving inadequate representation; or d. may result in the applicant engaging in more than two appearances during any one year. 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 or in the discretion of the tribunal or the Supreme Court of Ohio. E. Notification. 1. Required Information. Notice shall state the information listed on Appendix A to this rule. The applicant may also include any other matters supporting admission pro hac vice. 2. Notification 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 Supreme Court of Ohio at the time of filing the notice. 3. Exemption for Pro Bono Representation. An applicant shall not be required to pay the fee established in 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 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187

Ohio State Bar Association Council of Delegates November 2005 Meeting 23 b. involved in a criminal case or habeas proceeding for an indigent defendant. F. Authority of the Supreme Court of Ohio and Tribunal: Application of Ethical Rules, Discipline, Contempt and Sanctions: 1. Authority over Out-of-State Lawyer and Applicant. a. During pendency of the case and upon the granting of such admission, an out-of-state lawyer submits to the authority of the Supreme Court of Ohio and tribunal for all conduct relating in any way to the proceeding in which the out of-state lawyer seeks to appear. The outof-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 out-of-state lawyer who has pro hac vice authority for a proceeding may be disciplined in the same manner as in in-state lawyer. b. The Supreme Court of Ohio and tribunal s authority includes, without limitation, the Supreme Court of Ohio and tribunal s rules of professional conduct, rules of discipline, contempt and sanctions orders, local court rules, and court policies and procedures. 2. Familiarity with Rules. An out-of-state lawyer shall become familiar with the rules of professional conduct, rules of discipline of the Supreme Court of Ohio and tribunal, and policies and procedures of the tribunal 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 the Pending Out-of-State Proceeding. In connection with proceedings pending outside this state, an out-ofstate 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, 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234

24 Ohio State Bar Association Council of Delegates November 2005 Meeting 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 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 rule 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 two times in any one year. I. Authorized Services. The foregoing services may be undertaken by the outof-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. 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275