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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

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  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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