Whether in Little League, college, or the pros, any baseball player will likely tell you they prefer to be the home team.  Being away from the friendly confines (shout out Wrigley) comes with a certain level of discomfort.  The unfamiliarity of the accommodations, locker room amenities, and stadium can affect a player’s performance, even if they are a seasoned veteran.  Professional baseball teams go to great lengths to ensure that their players can adapt to the the unfamiliar environment and overcome the unique challenges of a road game. Without a doubt, home field advantage can be critical to a team’s success.

If you apply for admission to practice pro hac vice in another state, you should similarly prepare to enter what could be construed as a hostile environment (but leave your helmet at home).  Not only are you likely facing an unfamiliar opponent in opposing counsel, the jurisdiction and its rules can be a challenge to navigate.  However, being mindful of the potential ethical or practice pitfalls you could encounter can help you succeed in your pro hac vice admission.    

The Application Process

Pro hac vice is a Latin phrase meaning “for this occasion only.”  State and federal courts have their own pro hac rules, specifying how an attorney who is not a member of the local bar can appear and practice before the court. Courts typically require that local counsel file an Appearance and a Motion to Appear Pro Hac Vice on behalf of the attorney seeking to be admitted. The attorney applying for pro hac vice status is often further required to provide additional information for the court’s consideration. For example, in Massachusetts, the attorney must provide a certification stating that they are a member in good standing in every jurisdiction where they are admitted to practice, have no pending disciplinary proceedings against them, and are familiar with the local rules.

This certification is not only your first impression, it requires your strict adherence to  Model Rule 3.3, the rule concerning candor to the tribunal. Ensure that you err on the side of disclosing all disciplinary matters, even if you consider the matter a nuisance claim. Specifically, if you have any pending disciplinary matters, be sure you explicitly detail the circumstances of those proceedings. Not only will you comply with the Rules of Professional Conduct, the court will appreciate your honesty and perhaps be more inclined to grant your motion. 

Your Appearance In Court

Walking into an unfamiliar courthouse can feel a bit daunting when you do not know any of the court personnel or how the courtroom itself is set up.  When you are on someone else’s home turf, recall the privilege of being permitted to appear as pro hac vice counsel and go above and beyond to demonstate your respect, professionalism, and civility with the judge, court staff, and members of the local bar.  Determine whether the local rules include any professionalism standards, including for attire or addressing the court.  For example, the Orange County Bar Association has Civility Guidelines, outlining the standards by which Orange County bar members – and visiting attorneys – should conduct themselves.  Specifically, counsel is advised to show civility to other counsel and self-represented litigants by communicating in a professional, businesslike matter.  Counsel is further asked not only to provide accurate redlines and note changes when exchanging drafts but also avoid personal attacks and demeaning comments in private communications and in open court.

Regardless of the local custom or guidelines – whether it be wearing a suit or how you speak to the judge – maintain the highest level of decorum when appearing as pro hac vice counsel. And as you likely certified in your initial Motion to Appear Pro Hac Vice, make sure you have a solid understanding of the local rules.  There is nothing more embarrassing than being called out for failing to include all the required elements in a pleading or incorrectly citing a rule or statute.  As a visiting attorney, you can expect to be held to a higher standard.  We unfortunately can all probably share an instance of being “homered” outside our local jurisdiction. 

Working With Local Counsel

While the rules concerning pro hac vice admission can vary widely, you will more than likely be required to associate with a member of the local bar, meaning any filings must be signed by local counsel and you must appear together in court.  Even if these were not requirements, your client will be best served by you closely working with another attorney with significant experience in the local court. 

So how does a pinch hitting attorney best handle this relationship?  By keeping these tips in mind, you can successfully and ethically represent your mutual client:

The Division of Labor

Like any teammate, you must know your role. In addition to your client fee agreement, specifically itemize the work to be peformed by each attorney in a separate agreement.  Close collaboration is key to ensuring the work is done timely and accurately.  And because you both must sign the pleadings, make sure you allow sufficient time for review and revision before filing. Morgan & Morgan was recently in the news for citing AI-hallucinated cases (a topic for another Ally article) and local counsel admitted to not reviewing the pleadings before they were filed and therefore hit with sanctions.  This mistake simply cannot happen.

Calendaring

Treat being pro hac vice counsel as the opportunity to have another high-level attorney with eyes on your file.  Ensure that you and local counsel agree on all the court dates and deadlines you calendar so nothing falls through the cracks.  Further, allow local counsel to educate you on any unique deadlines you might not otherwise be familiar with, such as a twenty-day deadline to file versus thirty days.

Client Communications

Rule 1.4 requires you to keep the client reasonably informed about the pending case and any material developments.  Although you may be understandably protective of the client relationship, make sure to coordinate with local counsel to ensure that the client and all counsel of record are in the loop.  After all, you share a joint interest in the representation, and local counsel can add value concerning a judge’s tendencies or how local juries may perceive an issue.

Remember – being admitted as pro hac vice counsel is acknowledgement of your clean disciplinary record and the confidence your client and the court have in you. Take care to represent yourself, and your client, well.  The courthouse may not be eating peanuts and Cracker Jack but might be rooting for the home team.  However, by keeping these ethical considerations and tips in mind, you too can knock it out of the park in a road game.

Kate Gould is a Risk Management Attorney at AttPro.  When she isn’t monitoring the latest trends in the legal malpractice world, she might be cheering on the St. Louis Cardinals.  A lifelong Redbirds fan, Kate saw Ozzie Smith’s last game and Mark McGwire hit home runs 69 and 70 in the last regular season game in 1998.  She married a Cubs fan but is making it work (nearly 20 year later).