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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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