Out-of-state Plaintiff’s Attorneys

Last Updated: Feb 21, 2013

This paper provides general legal information. It is not intended as legal advice. Laws and procedures change frequently and are subject to differing interpretations. Physicians should consult their personal attorney if they are in need of legal guidance on a specific situation. Nothing in this paper should be construed as defining a standard of care.

Attorneys for plaintiffs in medical liability actions filed in Pennsylvania normally are licensed to practice in Pennsylvania. However, in some cases, the attorney is an out-of-state attorney, i.e., licensed in another state or foreign country, but not licensed in Pennsylvania.

This legal brief discusses the law governing when an out-of-state attorney may represent a plaintiff or defendant in a Pennsylvania judicial proceeding.

Background information

As a general rule, attorneys must be licensed in Pennsylvania to represent a party in a legal action in a Pennsylvania court. Absent licensure, the attorney's representation generally would be considered the unauthorized practice of law.

However, Pennsylvania, like other states, allows its courts to permit an out-of-state attorney to represent a party in a specific proceeding pending in that court by admitting the attorney pro hac vice.

Rule 301 of the Pennsylvania Bar Admission Rules authorizes pro hac vice admissions and governs the procedure and criteria for such admissions.1

In addition, Rule 5.5 of the Pennsylvania Rules of Professional Conduct, which prohibits the unauthorized practice of law, specifically recognizes that attorneys admitted pro hac vice in a proceeding are not engaged in the unauthorized practice of law when they participate in the proceeding.² 
  
Rule 301

Under Pennsylvania Bar Admission Rule 301, a court may grant admission pro hac vice to an applicant provided that there is a Pennsylvania attorney who has agreed to act as the attorney of record.

Procedurally, Rule 301 requires that a written notice of the motion: 
 
  • Be signed by the attorney of record;
  • Recite all relevant facts; and
  • Be filed with the clerk of court or magisterial district judge office in which the matter is pending.
Rule 301 further requires the court to grant a motion for admission pro hac vice unless it finds “good cause” for denial. Courts generally grant motions for admission pro hoc vice absent extraordinary circumstances.

Decisions to grant or deny a petition for admission pro hac vice are within the discretion of the trial court and may be overturned on appeal only if the trial court abused its discretion.
  
Proposed Rule 1012.1

In February 2006, the Pennsylvania Supreme Court Civil Procedural Rules Committee proposed a new rule governing admission of an attorney pro hac vice.³ Proposed new Rule 1012.1 is intended to result in a uniform statewide practice for such admissions.

It would impose obligations upon both the applicant and the sponsoring attorney and would provide guidance to the court in the evaluation of a petition for admission pro hac vice.

Of particular note, the new rule would require the applicant to:
  • Provide information regarding any disciplinary actions in other jurisdictions and other cases in which the applicant is representing a party pro hac vice.
  • Submit to the jurisdiction of the Pennsylvania courts and the Pennsylvania Disciplinary Board for acts and omissions occurring during the appearance in the matter.
Reasons to deny admission pro hac vice

In addition, the comment to the new rule lists the following as reasons for the court to deny a petition for admission pro hac vice:
  • The admission may be detrimental to the prompt, fair, and efficient administration of justice.
  • The admission may be detrimental to legitimate interests of the parties to the proceedings other than the client who the candidate proposes to represent.
  • The client who the candidate proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk.
  • The candidate is not competent or ethically fit to practice law.
  • The candidate is, in effect, practicing as a Pennsylvania attorney, in light of the nature and extent of the activities of the candidate in the commonwealth, without complying with the Pennsylvania requirements for the admission to the bar. The court may weigh:
    • The number of other admissions to practice sought or obtained by the candidate from Pennsylvania courts,
    • The question of whether the candidate maintains an office in Pennsylvania although the candidate is not admitted to practice in Pennsylvania courts, and
    • Other relevant factors.
  • The number of cases in all courts of record in this commonwealth in which the Pennsylvania attorney is acting as the sponsor prohibits the adequate supervision of the candidate.
  • The applicant’s failure to comply with the new rule.
  • Any other reason the court, in its discretion, deems appropriate.
The Pennsylvania Interest on Lawyer Trust Account Board also had proposed regulations that would require attorneys seeking admission pro hac vice to pay a fee equal to the annual assessment paid by attorneys licensed in Pennsylvania for each case in which the attorney is seeking pro hac vice admission.4

Implementation of this rule would be contingent upon conforming amendments to Rule 301.
   
Federal rules

The federal courts separately regulate who is authorized to represent parties in legal actions pending in a federal court. However, similar rules apply.5

Federal courts, like state courts, ordinarily liberally permit admissions pro hac vice.

Recently, in a widely publicized opinion, a judge in the federal district court for the eastern district of Pennsylvania denied an application for admission pro hac vice.6

However, that order involved a unique situation in which the court found that the attorney had illegally established a law office in Pennsylvania. 
  
  
  Footnotes
  1. Pa.B.A.R. Rule 301.
  2. Pa.R.Prof.Cond., Rule 5.5(c)(2) (see comments 5 and 9). www.pacode.com/secure/data/204/chapter81/s5.5.html The current version of Rule 5.5 took effect on May 15, 2004. The prior rule did not specifically authorize practice pursuant to a pro hac vice admission. However, even prior to promulgation of the revised rule, this practice was considered ethical and legal. See Phila. Bar. Assoc., Ethical Opinions, 2003-13 (December 2003).
  3. 36 Pa.Bull. 510 (Feb. 3, 2006). www.pabulletin.com/secure/data/vol36/36-5/172.html
  4. 35 Pa. Bull. 5638 (Oct. 14. 2005). www.pabulletin.com/secure/data/vol35/35-42/1891.html
  5. See e.g., U.S.Dist.Ct.M.D.Pa., Local Rule 83.8.2.1.
  6. MAR-VEL International, Inc. v. Milnes No. 06-cv-02703-JF, slip.op 2006 WL 2191462 (Aug. 1, 2006). www.paed.uscourts.gov/documents/opinions/06D0958P.pdf
   

Leave a comment

676_Website-Box_Amend-Mcare

ng5136-PA-PAMedSociety-DigitalAd-Brand-300x225
Norcal Mutual

Learn More 
ng5136-PA-PAMedSociety-DigitalAd-Brand-970x90