By Dale A. Stalf
Under long-standing Ohio law, attorneys who are not admitted to practice law in the State of Ohio are generally not permitted to participate in a case being litigated in Ohio courts unless “such participation is with leave of the judge hearing such cause.”1 Such leave of court (commonly referred to as an admission pro hac vice) is not a right,2 but rests within the sound discretion of the court.3 These principles were embodied in the Ohio Rules of Professional Conduct (“Prof. Cond. R.”) that became effective on Feb. 1, 2007.4 However, the procedure that attorneys are required to follow to obtain pro hac vice admission presently varies from jurisdiction to jurisdiction, with many courts prescribing the procedure in their local rules.5 On Sept. 1, 2009, the Supreme Court of Ohio adopted Gov. Bar R. XII that, beginning on Jan. 1, 2011, establishes a uniform procedure to obtain pro hac vice admission in any “proceeding”6 before an Ohio “tribunal”7 that is in line with the procedures employed in numerous other states.
While Section 2(A) of Gov. Bar R. XII largely retains the concept that pro hac vice admission is a discretionary matter, it does place some limitations on who is and who is not eligible to obtain such status:
An attorney is eligible to be granted permission to appear pro hac vice if:
- The attorney neither resides in nor is regularly employed at an office in this state or;
- The attorney is registered for corporate status in Ohio pursuant to Gov. Bar R. VI, Section 3 or;
- The attorney resides in this state but lawfully practices from offices in one or more other states or;
- The attorney maintains an office or other systematic and continuous presence in Ohio pursuant to Prof Cond. Rule 5.5(d)(2) or;
- The attorney has permanently relocated to Ohio in the last 120 days and is currently an applicant pending admission under Gov. Bar R. I.
- A tribunal shall not grant permission to appear pro hac vice to an attorney who has taken and failed the Ohio bar examination, been denied admission without examination, or had an application for admission in Ohio denied on character and fitness grounds pursuant to Gov. Bar R. I within the last five years.
Assuming the attorney is eligible for pro hac vice admission, Section 2 of Gov. Bar R. XII lays out the specific procedural steps required to receive it:
Step 1: Obtain a certificate of Pro Hac Vice Registration
The attorney must submit an application for registration, along with an annual registration fee of $100, to the Supreme Court’s Office of Attorney Services. The application must include the following information:
- The attorney’s residential address, office address, and the name and address of the attorney’s law firm or employer, if applicable;
- The jurisdictions in which the attorney has ever been licensed to practice law, including the dates of admission to practice, resignation, or retirement, and any attorney registration numbers;
- An affidavit stating that the attorney has never been disbarred and whether the attorney is currently under suspension or has resigned with discipline pending in any jurisdiction the attorney has ever been admitted;
- A statement the attorney satisfies the requirements in Section 2(A)(1) – (2);
- A statement that the attorney will comply with the applicable statutes, law and procedural rules of the State of Ohio, and the rules, policies, and procedures of the tribunal before which the attorney seeks to practice and will be familiar with and comply with the Ohio Rules of Professional Conduct and the Rules for the Government of the Bar.8
Step 2: Move the Tribunal for Admission Pro Hac Vice
After receiving a certificate of pro hac vice registration from the Office of Attorney Services, the attorney must file a motion for admission to appear pro hac vice with the tribunal. The motion must be accompanied by a copy of the certificate and must include the same information set forth in items (a) – (c) above, along with the following additional information:
- A statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year pursuant to Section 2(A)(5);
- The name and attorney registration number of an active Ohio attorney, in good standing, who has agreed to associate with the out-of-state attorney. 9
This motion is required to be “served by the filing attorney on all known parties and attorneys of record” in the proceeding.10 Any party to the proceeding may object to the motion,11 and the tribunal may conduct a hearing on the motion before entering an order granting or denying it.12
Note: If an attorney is “required to appear” in a proceeding less than five business days from the date of the filing of an application with the Office of Attorney Services, the attorney may file the motion instanter with the tribunal, accompanied by a time-stamped copy of the application.13
Step 3: Notify the Supreme Court of the Tribunal’s Decision
Within 30 days after a tribunal grants the motion to appear pro hac vice, the attorney must file a Notice of Permission to Appear Pro Hac Vice with the Office of Attorney Services, accompanied by a copy of the tribunal’s order.14
Continuing Obligations. Once an attorney has been granted permission to appear pro hac vice in a proceeding, the attorney is under some continuing procedural obligations. First, the attorney is required to “inform each tribunal in which the attorney has been granted permission to appear of any disciplinary action taken against the attorney since the date permission was granted.”15 Second, if the attorney continues to participate “in any proceeding pending as of the first day of a new calendar year,” the attorney is required to tender a renewal fee of $100 to the Office of Attorney Services “within 30 days of the start of that calendar year,” along with an “updated registration form.”16 Finally, “[i]f the proceeding has concluded or if the attorney has withdrawn from the proceeding, the attorney must so notify the Office of Attorney Services by the deadline for renewal of registration.”17
The Office of Attorney Services reports that forms should become available for download on the Supreme Court’s website (www.sconet.state.oh.us) in December, 2010, and the application and annual registration fee also will be able to be submitted and paid electronically. In addition, the Office of Attorney Services will maintain an online public directory that will include the names of all attorneys who have registered for, and the names of all proceedings in which they have been granted, pro hac vice admission.
Stalf is the chair of the Cincinnati Bar Association’s Professionalism Committee. He is a partner in the Cincinnati office of Wood and Lamping LLP where he’s a member of the litigation practice group. He focuses his practice on the prosecution and defense of business disputes through litigation in state and federal courts and administrative agencies and through the use of alternative dispute resolution techniques.
1 See Section 9(H) of Rule I of the Supreme Court Rules for the Government of the Bar (“Gov. Bar R.”).
2 See, e.g., Royal Indemnity Co. v. J. C. Penney Company, Inc., 27 Ohio St. 3d 31, 501 N.E.2d 617 (1986).
3 See, e.g., Walls v. Toledo, 166 Ohio App. 3d 349, 850 N.E.2d 789 (6th Dist. 2006).
4 See, e.g., Prof. Cond. R. 5.5(c) and Comments ,  and  thereto. See also Prof. Cond. R. 8.5(a) and Comment [1A] thereto.
5 See, e.g., Rule 10(F) of the Rules of Practice of the Hamilton County Court of Common Pleas.
6 “A proceeding is defined as an adjudicative matter pending before a tribunal.” Gov. Bar R. XII, at Section 1(B).
7 “A tribunal is defined as a court, legislative body, administrative agency, or other body acting in an adjudicative capacity. A … body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.” Gov. Bar R. XII, at Section 1(A).
8 Gov. Bar R. XII, at Section 2(A)(3). Section 2(A)(4) provides that an “attorney representing an amicus curiae in support of an indigent defendant in a criminal matter” may apply for a waiver of the annual registration fee in connection with that matter.
9 Gov. Bar R. XII, at Section 2(A)(6).
10 Gov. Bar R. XII, at Section 2(D).
11 Gov. Bar R. XII, at Section 2(C).
12 Gov. Bar R. XII, at Section 2(E). For a good discussion of the factors typically considered by Ohio courts in resolving pro hac vice motions, see the article entitled “Examining Ohio Pro Hac Vice” that appeared in the August 2008 issue of the CBA Report.
13 Gov. Bar R. XII, at Section 3.
14 Gov. Bar R. XII, at Section 4. Caution: “Failure to file the notice within the time specified shall result in automatic exclusion from practice within” the State of Ohio.
15 Gov. Bar R. XII, at Section 2(B).
16 Gov. Bar R. XII, at Section 5. A similar caution: “Failure to pay the required renewal fee and file a new registration form within the time specified shall result in automatic exclusion from practice within” the State of Ohio.