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IBA: Pro Hac Vice Reporting Deadline Rapidly Approaching

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By, Kevin McGoff & Meg Christensen, Bingham McHale, LLP
 

McGoff Kevin McGoff
christensen-margaret-mug Christensen

As 2011 dawns, with the year end accounting done and the pie generously sliced, it is time to ramp up for another year. Many attorneys pause to take a breath, having just completed the 2010 CLE requirements with a New Year’s Eve video marathon. So long as the Supreme Court dues are paid, it is time to go back to practicing law and leave the pesky administrative tasks till the end of summer. However, there is one more obligation lurking during the month of January for those Indiana lawyers serving as co-counsel with out of state attorneys. They must ensure the out of state attorneys renew their pro hac vice admissions. Failure to do so has potentially disastrous consequences for the Hoosier practitioner.

Indiana Rule of Admission and Discipline 3, Section 2(a)(c) requires renewal of temporary admissions as follows:

If an attorney continues to appear on the basis of a temporary admission in any case pending as of the first day of a new calendar year, the attorney shall pay a renewal fee equal to the annual registration fee set out in Admission and Discipline Rule 2(b). This renewal fee shall be due within thirty (30) days of the start of that calendar year and shall be tendered to the Clerk of the Supreme Court, accompanied by a copy of the Notice of Temporary Admission for each continuing proceeding in which a court has granted permission to appear.

Out of state attorneys who fail to properly renew their temporary admissions “shall” be automatically excluded from practice in Indiana pursuant to the Rule until the default is corrected. Moreover, the Rule requires the “[i]f the proceeding has concluded or if the attorney has withdrawn his or her appearance, the attorney must so notify the Clerk of the Supreme Court by the deadline for renewal of registration.”

In addition to being jointly responsible for all briefs, papers, and pleadings filed in cases litigated along with their out of state counterparts, Ind. R. Admis. Disc. (3), Sec. 2(d); In re Wilkins, 782 N.E.2d 985, 987 (Ind. 2003), wherein Indiana counsel was sanctioned for content of brief drafted by out of state attorney, Indiana attorneys serving as local co-counsel also bear responsibility to ensure out of state counsel fulfill Indiana’s rules governing temporary admissions. Do not leave compliance to the out of state lawyer.

The Indiana Supreme Court recently issued a private reprimand to an Indiana attorney for assisting in the unauthorized practice of law when he filed an appearance with a Kentucky attorney who was not properly admitted in this state. The non-admitted Kentucky attorney appeared in court and took depositions. In re Anonymous, 932 N.E.2d 1247, 1249-1250 (Ind. 2010). The Court explained in its September 3, 2010 opinion that “[t]he failure of out-of-state attorneys and their Indiana co-counsel to comply with the rule governing temporary admission is neither trivial nor rare.” Id. at 1250. Last year, over 600 notices of automatic exclusion from practice were issued. According to Paula Cardoza, Staff Attorney for the Division of the Supreme Court Administration, 187 attorneys sought relief from automatic exclusion in 2010. The Court stated in Anonymous that “[t]he need for this would be nearly eliminated if all Indiana co-counsel complied with their ethical duty to ensure that attorneys granted temporary admission in Indiana comply with Admission and Discipline Rule 3(2).” Id.

The attorney sanctioned received a private reprimand, but was also required to pay the costs of the disciplinary proceeding. With respect to the sanction imposed, the Court warned that a private reprimand was appropriate “under the circumstances of this case. However, Indiana attorneys serving as local counsel for out-of-state attorneys are hereby advised of the importance of their duty to ensure complete and timely compliance with all the requirements of Admission and Discipline Rule 3(2). Indiana attorneys who neglect that duty in future cases may be subject to more stringent discipline, and out-of-state attorneys who fail to comply with this rule may be sanctioned for the unauthorized practice of law in this state.” Id. at 1250. Lawyers working with attorneys not licensed in this jurisdiction need to be aware of, and meticulously follow the pro hac vice rules.

According to, Darla Little, the Roll of Attorneys Administrator, on December 1, 2010, the Indiana Roll of Attorneys sent 1,468 reminders to out of state attorneys to renew their admissions. Indiana co-counsel does not receive copies of these reminders. In light of the consequences for failing to ensure compliance with Admission and Discipline Rule 3, Section 2, Indiana attorneys should review the Rule’s requirements and ensure compliance by any out of state co-counsel. This is also a good time to verify and ensure that any out of state co-counsel who withdrew from a case in 2010, or whose Indiana litigation concluded in 2010 have reported those facts to the Clerk of the Indiana Supreme Court in order to avoid an automatic exclusion from future practice in this state.

Indiana Attorneys can now pay their annual licensing fees and/or change their contact information with the Roll of Attorneys online at: http://hats2.courts.state.in.us/att_web_06/att_inp.jsp, but out of state attorneys must send their notices and submit their registration fees the old fashioned way. Out of state attorneys should send a letter referencing their temporary admission numbers, listing all cases and cause numbers in which they have appearances on file, attaching the applicable Notice of Temporary Admission, and enclosing a check for $130.00 to:

Attn. Darla Little

Clerk of the Supreme CourtRecords Division

Roll of Attorneys

402 West WashingtonRoom W062

Indianapolis, Indiana 46204

With respect to cases which have concluded or from which an out of state attorney has withdrawn, the letter should simply advise the Clerk of the attorney’s temporary admission number, the case name and cause number under which he or she was admitted, and some documentary evidence of the conclusion of the case or the attorney’s withdrawal.

The rules governing the administration of pro hac vice admissions have been revised over the years. Although compliance is relatively easy, this deadline does not get logged on every To Do List. Take a moment and review your list of cases to be sure you – and the out of state counsel relying upon your knowledge and experience in Indiana law and procedure – pay the fees and file the requisite paperwork.•

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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