Pro Hac Vice Revocation in Oregon

One of the realities of the practice of law in the United States is that attorneys are generally licensed only in the state in which they practice law. Sometimes attorneys take the bar exams from other states and are admitted to practice there, also; sometimes states have "reciprocity" arrangements with other states so that lawyers from one jurisdiction automatically can practice in a (usually neighboring) jurisdiction. For example, Oregon lawyers can now, because of reciprocity arrangements with Washington and Idaho, practice there without having formally been admitted to practice law in those jurisdictions. In fact, the entire system of regulating lawyering by state is, in my judgment, a questionable practice. But, then again, I "came up" in the professional "system" through higher education, which has the nationwide/worldwide credential--the Ph. D.

What is Pro Hac Vice and What is the Issue?

Because there isn't reciprocity between most states on lawyer admission issues, you have the following common reality: a CA lawyer wants to argue a case in OR. In order to do this s/he must be admitted specially for that case. S/he doesn't have to become a member of the bar but has to pay a fee (a few hundred dollars), agree to participate in the court according to the rules in the new jurisdiction, and associate with local counsel who "meaningfully" participates in the case. If all these things are done, s/he is admitted proc hac vice ("for that turn"). Each state has rules about this. Oregon's, for example, is in Uniform Trial Court Rule ("UTCR") 3.170. Here is the text. So far, so clear.

But let's say that the out-of-state lawyer, in putting the case together before a judge in the new state, ticks off the judge. On what basis can the judge remove the out-of-state lawyer from the case? Or, to put it in legal terms, "What are the standards courts should use for the revocation of pro hac vice status?" Are they the same standards for holding an in-state attorney in contempt? Are they more lenient? Less so? The only words in the UTCR relating to this issue are in 3.170(3):

"At any time and upon good cause shown, the court or administrative body may revoke the out-of-state attorney's permission to appear in the matter."

Thus, the only standard articulated in the rule, and there is no case-law interpreting the rule, is that the court must show "good cause" to revoke the attorney's pro hac vice status.

Investigating "Good Cause" In More Detail

So, let us assume that a trial court judge gets ticked off at the out-of-state attorney and removes him/her from the case. The party who hired the out-of-stater feels disadvantaged, and if s/he loses the case, decides to appeal the case. Normally an appellate court will review a trial court's decision for "abuse of discretion." This is a very deferential standard to the trial court judge--for it hints that reversal will only be made if there is little or no evidence to support the trial judge's decision. But, using the Oregon standards, this is made more difficult because of a two-fold task that the appellate court must pursue. Whereas the court is supposed to judge the judge's decision by an "abuse of discretion standard," how is it to weigh the judge's good cause finding? Even though the standard of review is supposed to be pretty clear, I think that the dual assessment of the rightness of the cause and the rightness of the decision means that the appellate court really will be in the position of second-guessing the trial judge. Thus, the question generally boils down to whether the judges of the appellate tribunal would have given the out-of-state lawyer the heave-ho for his/her conduct.

Getting to Specifics

This isn't simply an academic exercise. In fact, a case presenting this problem was argued for one hour at the Oregon Court of Appeals this morning. The factual scenario centered on the out-of-state lawyer's apparent disregard of the trial court's order to pare down the number of documents he planned to introduce into trial by a specified time. When that time arrived, the attorney submitted nearly 23 notebooks of documents from which it would introduce its case. But the factual scenario, though important for ultimate determination of the case, shouldn't obscure the larger question--is there an identifiable standard a court should use to determine if the judge's revocation of pro hac vice status was an abuse of his/her discretion? I would suggest a "four test" model. Ask the following: (1) How severe was the lawyer's violation of the judge's order or Oregon rules?; (2) How repeated was/were the violations? (3) How greatly will the attorney's removal in the case prejudice the client's ability to get a hearing of his/her case? (4) When in the proceeding was the revocation made (the nearer to trial, the greater "cause" must be shown)?

Conclusion

If it can be shown, for example, that the attorney was removed for repeated violations of a judge's orders, and that the judge made efforts to give sufficient time for local counsel to get "up to speed" on the case (perhaps a week or two weeks, depending on when the pro hac vice was revoked), then the judge has shown good cause. If, however, the attorney made one comment that ticked off the judge near the end of the trial, one might conclude that the judge hadn't shown good cause. Because of the importance of permitting people to "get their day in court," revocations should rarely be permitted if there is no "back up" counsel, except when the attorney seems to be flouting the judge's authority in the courtroom. But the whole idea of associating local counsel is that office space and active legal participation is locally provided for the "out-of-state" attorney. The local counsel should be able to step in and do the trial, almost in all circumstances, especially if the judge grants a reasonable amount of time for the local counsel fully to prepare him/herself. I would say that the standards for removal of an out-of-state attorney should not be the same as those to hold a local attorney in contempt. Revocation should be for lesser cause--principally because the clients also have local counsel to argue their case.

So, I await the decision of the Court of Appeals--in this case that began more than seven years ago, to a large extent in my office.

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