ILNews

Temporary admissions may create problems

Back to TopCommentsE-mailPrintBookmark and Share

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.•
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT