cbaReport-July13 - page 7

July 2013 CBA REPORT
l
7
cover article
and Illinois, have adopted rules identi-
cal to Model Rule 5.5. Thirty-one others,
including Ohio and Kentucky, have
adopted nearly-identical rules.
20
Administrative Proceedings
State laws often restrict who can
practice before state agencies, tribunals,
or government decision-makers, such
as in administrative hearings.
21
Check
local law and practice rules to determine
whether PHV admission is required be-
fore you appear in any governmental (i.e.,
non-private) adversarial proceedings.
Most federal agencies establish their own
admission requirements.
22
Some agen-
cies’ appellate procedures even permit
non-lawyers to represent parties to their
proceedings.
23
Arbitration and Mediation
In many states, including most of
those which have adopted Model Rule
5.5, no admission is required for out-
of-state lawyers representing parties in
arbitrations or mediations (see Model
Rule 5.5(c)(3)). In fact, the commonly
used rules of the American Arbitration
Association (AAA) allow parties to be
represented by non-lawyers.
24
However,
AAA rules cannot override state UPL
requirements. For instance, Kentucky
SCR 3.130(5.5)(c)(2), unlike Model Rule
5.5, only exempts in-state legal services
that are related to arbitrations with a
hearing locale outside of Kentucky. Even
though there is no published guidance
on that rule as it pertains to arbitrations
at venues in Kentucky, Kentucky Bar
Association personnel have opined to
the authors’ firm on several occasions,
including immediately prior to this
article’s publication, that PHV admission
is always necessary for representatives
of parties to any Kentucky arbitration
or mediation. Always check with the
Supreme Court or the bar in the host
state if you are unsure about a rule or its
exceptions.
Out-of-State Discovery Activities
For discovery activities, many states’
rules look to whether or not the underly-
ing matter is venued in a state where you
are licensed. In those states, conducting
discovery in a proceeding venued in a
state where a lawyer is licensed typically
does not require admission or certifica-
tion (see Model Rule 5.5(c)(2)). However,
if the proceeding is set in a state where
the lawyer is not licensed, then the same
rules apply as would for other appear-
ances in that forum. Also, in many states,
taking a deposition in a suit venued in
that state will require PHV admission,
whereas taking a deposition in an arbi-
tration proceeding venued in that state
will not.
25
Conclusion
Ultimately, when considering
whether to undertake or continue repre-
sentation that requires performing work
outside of Ohio, you must decide whether
the practical and ethical considerations
allow you to represent your client ef-
fectively and ethically. As long as you are
mindful of the applicable rules and your
ethical obligations, out-of-state practice
need not be a significant hindrance to
effective client representation.
Furey and Linser are associates at the law firm of
Sanders & Associates, LPA, where they practice in
the areas of business and corporate matters and
commercial litigation.
1 Note that both the host state and the visiting
lawyer’s home jurisdiction can discipline a lawyer
for UPL violations. See Model Rule 5.5(a) and Ohio
Rules of Professional Conduct Rule 5.5(a).
2 Black’s Law Dictionary, 8
th
Edition.
3 See, e.g., Indiana Rules of Admission and Discipline
R. 3, § 2(c), requiring a $145 annual renewal fee, pay-
able for each year until the matter concludes.
4 See, e.g., Kentucky SCR 3.030(2) and Rules Regulat-
ing the Florida Bar R. 1-3.10(c)(7).
5 See Kentucky SCR 3.030 (“Membership, practice by
nonmembers and classes of membership”).
6 See, e.g., Indiana Rules of Admission and Discipline
R. 3, § 2(a)(4), and the Out-of-state Attorney Certifi-
cation Form required by Kentucky SCR 3.030.
7 See, e.g., Indiana Rules of Admission and Discipline
R. 3, § 2(a)(1), Kentucky SCR 3.030(2), Tennessee
Supreme Court Rule 19(g), and the Rules Regulating
the Florida Bar R. 1-3.10(a).
8 See, e.g., South Carolina SCACR Rule 404 (f): “
The
South Carolina attorney of record shall at all times be
prepared to go forward with the case; sign all papers
subsequently filed; and attend all subsequent proceedings
in the matter, unless the tribunal specifically excuses the
South Carolina attorney of record from attendance.”
9 See
administrative/professional_responsibility/prohac_
admin_rules.authcheckdam.pdf
and
.
americanbar.org/groups/professional_responsibility/
committees_commissions/commission_on_
multijurisditional_practice.html
.
10 See, e.g., Ohio Gov. Bar R. XII, Section 2, ¶5; see
also, e.g., the Rules Regulating the Florida Bar R.
1-3.10(a)(2).
11 See Rules Regulating the Florida Bar, at Rule
1-3.10(b)(2): “
No lawyer is authorized to appear pursu-
ant to this rule if the lawyer: …(2) is a Florida resident;
… .”
12 See, e.g., the North Carolina Bar, Pro Hac Vice
Admission Registration Statement, available at
http://
, requiring a
signed statement verifying that the attorney will
report income earned in relation to the case to the
state’s taxing authority.
13 See, e.g., U.S. District Court for the District of New
Jersey, Local Rule 101.1(c)(2), which requires attor-
neys admitted PHV to make a payment to the New
Jersey Lawyers’ Fund for Client Protection as pro-
vided by New Jersey Court Rule 1:28-2(a); see also
Judge Charles Kornmann, U.S. District Court for the
District of South Dakota, standing order requiring
attorneys admitted PHV before him to register for
a permanent sales and use tax license with the state
of South Dakota, available at
.
gov/?q=forms/order-admit-phv-civil-judge-kornmann
.
14 See, e.g. U.S. District Court for the Southern Dis-
trict of Georgia, Local Rules 83.2, 83.4.
15 See U.S. District Court for the Northern District of
Ohio, Local Rule 83.5(l).
16 Compare, U.S. District Court for the District of
South Dakota, Local Rule 83.3(E) and U.S. District
Court for the Middle District of Florida, Local Rule
2.02(a), which require local counsel, and U.S. District
Court of the Middle District of Alabama, Local Rule
83.1(b), which does not.
17 See, e.g., U.S. District Court for the Middle District
of Tennessee, Local Rule 5.03(a).
18 ABA Model Rules of Professional Conduct, 5.5(a)-
(b).
19 ABA Model Rule 5.5(c)-(d).
20 See ABA Commission on Multijurisdictional
Practice Report,
State Implementation of Model Rule
5.5
, September 27, 2011,
available at
.
americanbar.org/content/dam/aba/migrated/cpr/mjp/
quick_guide_5_5.authcheckdam.pdf
.
21 See, e.g., ORC Ann. 119.13, requiring that an attor-
ney represent any party involved in an administrative
agency hearings where a record is taken which may
be the basis of an appeal to court.
22 See, e.g., the USDA’s National Appeals Division
(NAD), and the regulations that govern it at 7 CFR §
11.
23 See, e.g., 7 CFR § 11.6(c), which permits non-lawyers
to represent parties in USDA appeal matters.
24 See AAA Commercial Arbitration Rule R-24.
25 See Indiana Rules of Professional Conduct Rule 5.5(c)
(3), which permits out-of-state lawyers to provide
legal services that are related to an Indiana arbitra-
tion proceeding, but does not provide the same
exception for legal services that are related to an
Indiana suit.
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