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Temporary admissions may create problems

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atm-rules.gifLawyers not licensed in Indiana must be admitted temporarily or on a motion when appearing in a case in this state. A local lawyer must also serve as counsel and vouch for the visiting lawyer’s lack of disciplinary history when filing a motion for admission or when a lawyer applies for pro hac vice status – a temporary admission that applies to a single case only.

But lawyers may not be aware that any time they sign off on a visiting lawyer’s qualifications, they are assuming a risk.

G. Michael Witte, executive secretary for the Indiana Supreme Court Disciplinary Commission, said that when he was a Dearborn County judge, many lawyers applied for temporary admission.

“I was getting pro hac vices fairly regularly, and many times the Indiana attorney that was serving as co-counsel would put in the pleadings that they’re serving as the ‘sponsor’ of the out-of-state attorney, and I would contact the Indiana lawyer and say you’re not a sponsor, and you better familiarize yourself with the rule, because you’re putting yourself on the hook,” Witte said. “Ninety percent of the time when I would make that call to an attorney, they would say, ‘I didn’t realize that. Thanks, judge.’”

The rule Witte refers to is Rule 3, Section 2 of Indiana Rules of Court, Rules for Admission to the Bar and the Discipline of Attorneys, which sets forth several requirements for pro hac vice admission to state courts. Even a minor oversight, such as failing to renew pro hac vice status, can result in disciplinary action.

“When the lawyer doesn’t renew his license in January, now you’re faced with another discipline problem, and that’s UPL, or practicing without a license, and the Indiana lawyer who serves as co-counsel is now aiding and abetting the UPL,” Witte said.

Indiana’s federal courts have different rules for the admission of out-of-state lawyers, and from state to state and court to court, rules about temporary admission vary. Being unaware of a court’s rules can cause far-reaching problems for lawyers, across multiple states.

Communication gaps

While a judge in Dearborn County, Witte revoked pro hac vice status for an Ohio attorney for repeated failure to appear. That attorney – Clyde Bennett II – was subsequently suspended in his home state for a felony conviction. Bennett has been admitted to practice again in Ohio, but his attorney discipline and sanction history on the Supreme Court of Ohio website does not show that Witte revoked his pro hac vice status here, even though Witte submitted a copy of that order to Indiana’s Supreme Court. Darla Little, administrator for the Indiana Roll of Attorneys, said she was not aware of a standardized process for reporting these types of disciplinary actions to other states. Court officials say disciplinary actions involving lawyers with pro hac vice status in Indiana is rare.

Laura Briggs, clerk for the U.S. District Court, Southern District of Indiana, said that when an out-of-state attorney applies for full admission to the federal court or applies for pro hac vice admission, the staff checks the roll of attorneys in Indiana and the visiting lawyer’s home state for disciplinary action. But the roll of attorneys may not necessarily reflect disciplinary action for an attorney if it comes from another jurisdiction where the attorney was licensed temporarily. Briggs also said that if a federal court within the 7th Circuit disciplined an attorney, that would eventually be communicated to the other District Courts in the same circuit. But courts in different circuits would not necessarily inform each other about discipline, unless the court ordering the sanction or discipline had reason to believe the attorney had active cases in another circuit.

“If someone is disciplined in Alaska and they don’t choose to inform us, I wouldn’t know about it,” Briggs said.

The American Bar Association does maintain a National Lawyer Regulatory Databank, which contains disciplinary history for attorneys nationwide. But reporting requirements vary from state to state. All state courts have a court-authorized reporting agent that can relay information to the databank, but not all federal courts do. And if courts don’t have time to check the databank, disciplinary actions in other states might be unknown.

Federal court discipline

Last year, Indiana’s Southern District admitted a Texas attorney to practice. The lawyer, Eric G. Calhoun, was the named plaintiff’s co-counsel in nine lawsuits filed in Indiana in which plaintiffs sued the owner or operator of an ATM for failing to provide two notices of usage fees. (See "ATM fee disclosure rules and related litigation").

Calhoun’s name has been popping up on dockets nationwide as an increasing number of plaintiffs sue owners and operators of ATMs. Calhoun has gained admission to practice in some courts on pro hac vice status or on a motion.

On March 26, Judge John A. Houston, of the U.S. District Court, Southern District of California, issued an order revoking Calhoun’s pro hac vice admission in a case and fined him $3,500 for material omissions in his pro hac vice application. The application asks attorneys to list pro hac vice admissions within the preceding year. Calhoun listed one, but after hearing a motion from the defense, the judge found Calhoun had been admitted on pro hac vice status in 12 cases, and was listed on the title page of at least 39 complaints filed in that district. For helping him prepare his pro hac vice application in Elsa Terrell v. Borrego Springs Bank, California attorney Mark Golovach was fined $1,000.

Calhoun filed a declaration with the California court, stating he sent a copy of the order to the Texas state bar. According to Texas Government Code Section 81.115, that discipline won’t be displayed on Calhoun’s state bar attorney profile, as it was not issued by the official disciplinary entity of California. The disciplinary process in Texas is confidential; accordingly, the chief disciplinary counsel declined to comment on the California order.

Calhoun told Indiana Lawyer that he did not intend to mislead the California court and that in 25 years of practice, he has no other history of rules violations. He said that the pro hac vice application form was unclear that it required the disclosure of all previous pro hac admissions, as it included only one line on the form to list prior admissions. Houston had rejected that argument.

“Unfortunately, there’s not uniform rules among the federal courts,” Calhoun said. “You could look at pro hac rules in a different district in the same state, and they’re not the same. There’s all sorts of local practice things that are tricky, and it’s important to have local counsel that knows how the rules are interpreted.”

In the order Houston issued, he cited Irrevocable Trust of Antonius v. Tour Edge Golf Mfg. Inc., 2011 WL , at *9 (N.D. Ill. Apr. 17, 2011), in which a junior attorney falsely stated in a pro hac vice application for a senior attorney that the senior attorney had never been suspended or held in contempt of court. The Northern District of Illinois held that the senior attorney had a duty to examine and correct the application and fined the junior attorney $1,000 and the senior attorney $5,000.

Local counsel on Calhoun’s Indiana cases, Ryan Frasher, declined to comment for this story, due to the active status of several cases.•
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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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