South Carolina Lawyer
SC Lawyer, March 2010, #5.
Renting Your Law License Can Be Dangerous Avoiding the Rubber-Stamp Mentality Surrounding Pro Hac Vice Admissions
South Carolina Lawyer March 2010 Renting Your Law License Can Be Dangerous: Avoiding the Rubber-Stamp Mentality Surrounding Pro Hac Vice Admissions By the Hon. G. Ross Anderson Jr. Introduction
The attorney at the plaintiff's table was nervous, and for good reason. When the judge called the hearing to order, the attorney informed the court that the counsel responsible for the case, an out-of-state lawyer admitted pro hac vice, was nowhere to be found. To make matters worse, the attorney at the plaintiff's table knew nothing about the substance of the case or the underlying motion, even though he had signed the pleadings as local counsel.
This unfortunate situation, which recently occurred in a South Carolina federal court, showcases what appears to be a growing problem with
pro hac vice admissions in South Carolina federal and state courts. Approving out-of-state lawyers has become, in many instances, little more than a perfunctory clerical process. Additionally, many local attorneys are essentially loaning their name, and by extension their reputation and law licenses, to out-of-state lawyers without sufficient scrutiny.
Admission pro hac vice, which literally means admission "for this occasion or particular purpose," is a longstanding procedure in federal and state courts. However, as numerous scholars have noted, multi-jurisdictional practice is becoming even more prevalent in today's legal marketplace. It is "a reality fed by economic and technological change." Peter S. Margulies, Protecting the Public Without Protectionism: Access, Competence and Pro Hac Vice Admission to the Practice of Law, 7 Roger Williams U. L. Rev. 285, 311 (2002); see also Susan Poser, Multijurisdictional Practice for a Multijurisdictional Profession, 81 Neb. L. Rev. 1379, 1379 (2003).
One of the key means by which pro hac vice admission keeps pace with economic and technological shifts is by allowing clients in a global marketplace to access attorneys of their choice. It is important to note, however, that access to any counsel of choice is not a constitutional right. See Powell v. Alabama, 287 U.S. 45, 53 (1932). The right to choice of counsel must be limited because to hold otherwise would "necessarily condemn, for example, even local bar admission requirements. . . " United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976).
Therefore, this access should be balanced against any potential sacrifice in competency and quality. This is not to imply that those attorneys who are admitted pro hac vice are deficient. However, it seems the current mentality in the legal profession is to regard pro hac vice admission as a rubber stamp, which results in what can ultimately be described as a quality assurance problem. A few changes in the way the South Carolina legal community approaches pro hac vice admission can help properly bring a balance of access and competency to the process.
Applying for pro hac vice status
The process of applying for pro hac vice is relatively simple in either state or federal court. In South Carolina state courts, Rule 404 of the Rules of Appellate Procedure governs the process. To be eligible for pro hac vice admission, an attorney must be authorized to practice law in the highest court of another state or the District of Columbia. See Rule 404, SCACR. However, an attorney who is a South Carolina resident, regularly employed in South Carolina or who is regularly engaged in the practice of law in South Carolina, is not eligible for pro hac vice admission and may typically only be admitted by taking a bar exam. Id. The rule explains that filing more than six applications for pro hac vice admission constitutes regularly engaging in the practice of law. Id. In South Carolina federal courts, Local Civil Rule 83.I.05 governs applications for pro hac vice admission, and it mostly mirrors the state rule.
Although the process of applying for pro hac vice is straightforward, it is critical that attorneys understand what types...