by: Colin E. Flora
This week’s topic is one familiar to practitioners, but quite unfamiliar to those outside the practice. Today, we discuss pro hac vice admission. First things first, what does pro hac vice mean? Looking to Black’s Law Dictionary we get our answer: “For this occasion or particular purpose. • The phrase usually refers to a lawyer who has not been admitted to practice in a particular jurisdiction but who is admitted there temporarily for the purpose of conducting a particular case.” So there you have it; pro hac vice admission allows a lawyer licensed in one state to conduct a case in another. Almost invariably, this requires a person from the local jurisdiction to sponsor the application.
Pro hac motions are extremely common and routinely granted. This is the mechanism that allows my firm, located in Indianapolis, to carry on cases in Florida, California, Georgia, Puerto Rico, et cetera. Because they are usually granted as a matter of course, it is extremely rare to see an appeal that directly addresses the propriety of a decision to deny pro hac admission. Just such a decision is what spurs the topic for today. This past week, the Indiana Supreme Court handed down its decision in YTC Dream Homes, Inc. v. DirectBuy, Inc. Before we get into depth on YTC Dream Homes, let’s take a step back and look at the procedure for pro hac vice admission.
The authority to practice law in Indiana is vested in our Supreme Court. There was a time in our state’s history that the choice to admit attorneys was made on a court-by-court basis. This remains true in federal courts, but not Indiana state courts. The Indiana Supreme Court has outlined the procedure for admission in Indiana Admission and Discipline Rule 3(2). In relevant part, the rule states:
Any court of the State of Indiana, in the exercise of discretion, may permit a member of the bar of another state . . . to appear in a particular case or proceeding, only if the court before which the attorney wishes to appear … determines that there is good cause for such appearance [and that other specific conditions are met].
The Court of Appeals of Indiana has succinctly summarized the rule:
Our supreme court has provided that a member of the bar of another state may, in the trial court’s sole discretion, make an appearance for a temporary period only “so long as said attorney appears with local Indiana counsel after petitioning the trial court for the courtesy . . .”
The Court of Appeals decision before this case reached the Indiana Supreme Court outlined the state’s general view on pro hac admission.
[T]he Indiana Supreme Court in In re Fletcher declared that allowing “appearances in one state by an attorney regularly admitted and licensed to practice in another state are generally permitted as a matter of comity ” and that the relevant rule is Rule 3(2). Black’s Law Dictionary defines “comity” as “[a] practice among political entities … involving esp. mutual recognition of legislative, executive, and judicial acts.” Put another way, other states generally allow Indiana attorneys to practice pro hac vice, and similarly, members of another state’s bar are generally allowed, assuming the requirements of Rule 3(2) are met, to practice law in Indiana on a case-by-case basis.
The issue in YTC Dream Homes stems from the interpretation of a Lake County local rule. YTC sought to have out-of-state counsel granted pro hac vice admission. The trial court initially granted the motion, but, upon defendant’s objection, vacated its original order and then denied admission to YTC’s out-of-state lawyers. The trial court stated in its order:
There is no doubt that the five [Attorneys] are eminently qualified, knowledgeable[,] and have a high level of competence in the area of franchise law.
* * * *
[But there are] no less than seventeen licensed Indiana attorneys . . . that are members of the American Bar Association Forum on Franchising.
* * * *
Even assuming that the plaintiffs have shown good cause to admit these attorneys because of their specialized skills, the pro hac vice petitioner must overcome the presumption under Lake County Local Rule 5(C) that an attorney not licensed in Indiana is not permitted to practice before it. . . . [T]he Court is not persuaded that the plaintiffs cannot locate attorneys licensed in the State of Indiana that have expertise in the field of franchise law.
YTC was permitted interlocutory appeal to challenge the decision.
Trial courts are entitled to a great deal of discretion in determining whether to grant pro hac vice admission. However, because the trial court’s decision turned on its interpretation of Lake County Local Rule 5(C), the appellate courts can reverse the trial court’s decision for misinterpreting the rule because misapplication of the law is an abuse of discretion. Let us look at the Lake County Local Rule. It states:
A person not a member of the Bar of the State of Indiana shall not generally be permitted to practice in the Civil Division of the Lake County Court System. The Court in its discretion may permit such counsel to appear only for a specifically limited purpose and time. Counsel’s Motion shall strictly comply with Admission and Discipline Rule 3, and disclose such purpose, time, and all other cases in which the attorney or members of the firm have been permitted to appear in the State of Indiana.
The important language is in the first sentence: “shall not generally be permitted to practice[.]” The trial court read that provision as creating a presumption against pro hacadmission. The court of appeals disagreed:
[W]e interpret the provision of Local Rule 5(C) that members of another state’s bar “shall not generally be permitted to practice” in the Lake County Court System to simply mean that such attorneys must seek pro hac vice admission in accordance with Rule 3(2)(a). Indeed, if Local Rule 5(C) were to contain a presumption against allowing members of another state’s bar to practice pro hac vice, then it would be “in conflict” with Rule 3(2)(a).
The Indiana Supreme Court agreed with the court of appeals’ interpretation of the rule.
There was only one major portion of the court of appeals’ decision that was not affirmed by the supreme court. The court of appeals chose to step a bit beyond the mere question of whether the trial court applied the wrong standard and, because the court of appeals believed the issue would be one to recur on remand to the trial court, the court of appeals determined that the out-of-state lawyers met the requirements for admission and ordered the trial court to grant pro hac vice admission. The Indiana Supreme Court, however, stopped short of ordering that the attorneys should be admitted. Rather, the supreme court remanded the case “to the trial court with instructions to determine, without restriction by local rule and within the discretion granted by Indiana Admission and Discipline Rule 3(2), whether good cause exists for the admission of the Attorneys.”
As a final note, this is not the type of decision that can be appealed as a matter of right prior to the end of the case; any such appeal would be interlocutory and require the trial court’s permission to do so. We have discussed the right to interlocutory appeals in prior installments and will not go into depth on the distinction here. I mention this to bring to your attention the troubling reality that stems from this and other decisions excluding an attorney of a client’s choosing from participating in a case being left to either the end of the case or the trial judge’s discretion to allow an appeal. Here, the trial judge certified the matter for interlocutory appeal and the court of appeals chose to review the decision. However, nothing obligated the trial judge to do so. If he had not, the appeal would only have been permitted after the case had concluded. If the only issue for appeal is whether the lawyers should have been part of the case, waiting until the end is too late–the case is over. The same is true when a judge disqualifies an attorney for a potential host of reasons. In so doing, the judge has removed the client’s chosen counsel and, unless the judge permits interlocutory appeal, it’s a decision that cannot be readily challenged.
To illustrate this, let us take the example of the YTC Dream Homes case and add a cynical spin on our interpretation. To be clear, I am not saying this is what actually happened or casting any aspersions on the trial judge here. We are manipulating the facts a bit to prove a point. Here, one of the stated reasons for denying admission was that there are a great many qualified Indiana attorneys who could do the work. If we extrapolate this notion and spin it in a cynical light, it could be taken as protecting the local bar from being supplanted by out-of-state attorneys. If that were the trial judge’s intention, he can easily block an interlocutory appeal and functionally meet his goal. Clearly, that was not the intention here–the trial judge granted the interlocutory appeal. But, you see the danger. The decision to prevent an attorney from participating in the case strips the client of the right to his/her choice of lawyer, but without allowing an appeal of that decision as a matter of right, any challenge can be rendered functionally moot.
Consequently, it is my firm opinion that Ind. Appellate Rule 14(A) should be amended as follows:
A. Interlocutory Appeals of Right. Appeals from the following interlocutory orders are taken as a matter of right by filing a Notice of Appeal with the Clerk within thirty (30) days after the notation of the interlocutory order in the Chronological Case Summary:
* * * * *
(10) Granting or refusing to grant admission pursuant to Ind. Disciplinary Rule 3(2).
(11) Granting or refusing to grant disqualification of an attorney.
Then again, last I checked, I don’t make the rules. So don’t expect a change any time soon.
Join us again next time for further discussion of developments in the law.
- YTC Dream Homes, Inc. v. DirectBuy, Inc., 30 N.E.3d 701 (Ind. 2015) (per curiam).
- YTC Dream Homes, Inc. v. DirectBuy, Inc., 18 N.E.3d 635 (Ind. Ct. App. 2014) (Brown, J.), aff’d in part.
- Prof’l Laminate & Millwork, Inc. v. B & R Enterprises, 651 N.E.2d 1153, 1156 (Ind. Ct. App. 1995) (Najam, J.).
- In re Fletcher, 655 N.E.2d 58 (Ind. 1995) (per curiam)
- Ind. Admission and Discipline Rule 3(2).
- Lake County Local Rule 45–TR3.1–5(C).
- Colin E. Flora, Indiana Court of Appeals Addresses Right to Appeal Denial of Motion to Dissolve a Preliminary Injunction, Hoosier Litig. Blog (Feb. 28, 2014).
- Ind. Appellate Rule 14(A).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.