Pro hac vice is Law Latin that means “for this time [only]” (literally, “for this turn”). When a lawyer is admitted to a case pro hac vice, a court has granted them a limited license to practice in a jurisdiction where they otherwise would not be licensed to do so.
For example, a lawyer licensed only to practice in California may nonetheless practice in a New York case once a court has granted them admission pro hac vice, so long as the lawyer practices only within the limited scope of their pro hac vice admission. In almost all U.S. jurisdictions, lawyers who practice pro hac vice must do so in conjunction with a local lawyer acting as local counsel. Local counsel typically acts as an anchor to the bar of a foreign jurisdiction, exposing local counsel to liability for the acts or omissions of the lawyer admitted pro hac vice. Local counsel therefore usually assumes, at a minimum, a role of monitoring the lawyer admitted pro hac vice.
Purpose of Pro Hac Vice Admission
Pro hac vice admission is a method that resolves the tension between the growing need to practice across state lines and the interests of local courts in ensuring that lawyers who practice before them are qualified to advise their clients on local laws and to comply with local rules of practice and custom. To that end, most courts and bar associations require that (1) local counsel vouch for the pro hac vice applicant regarding their ability to learn the local law and comply with matters of local practice, and (2) the pro hac vice applicant swears to abide by the written rules and make a proactive effort to learn them.
Discipline in Pro Hac Vice Cases
In every jurisdiction, lawyers practicing pro hac vice are subject to discipline by the jurisdiction granting pro hac vice admission. Some state bars will impose reciprocal discipline on lawyers who have been sanctioned by foreign courts (i.e., courts in different U.S. jurisdictions). In addition to the express requirements, lawyers should also review any relevant case law in the jurisdiction where they seek to practice pro hac vice.
Limited Use of Pro Hac Vice Privileges
A 50-state survey of pro hac vice admission rules shows that most jurisdictions intend for pro hac vice admission to be used on a sparing and occasional basis. For example, some rules expressly limit the use of this type of admission to a few cases in a five-year period.
Relatively recently, the District of New Jersey broke with tradition on its interpretation of pro hac vice admission as a tool of limited availability. The local rules used to expressly limit the number of pro hac vice admissions for which a lawyer could apply. Later, the District of New Jersey amended the rule to remove that limitation.
Degree of Participation Required of Local Counsel
The required participation of local counsel increases costs to the client. With costs in mind, the pro hac vice lawyer might view local counsel as fulfilling a mere administrative role rather than a substantive one. The pro hac vice lawyer and local counsel should, however, tread carefully to ensure that local counsel’s role is consistent with the jurisdiction’s requirements for the involvement of local counsel.
Courts across the nation take positions all over the spectrum. For example, in some states, local counsel must have enough involvement and authority to sign a stipulation on behalf of the client, while in others (especially federal courts) judges routinely refer to pro hac vice lawyers as “lead counsel.” In the middle lie jurisdictions that require local counsel to appear in court, but not at depositions, or at both.
The Duty of Lawyers to Notify the Client of Differences in Legal Opinions
At least one state supreme court has mandated that local counsel notify the client when they have a materially different legal opinion on the client’s case than that of the pro hac vice lawyer. In other jurisdictions that do not specify this requirement, lawyers working together in a pro hac vice relationship should take care to address this situation before it arises, ideally in an engagement agreement.
The timing of filings relative to the approved pro hac vice application and other unauthorized practice of law issues
Courts take a variety of positions on when, if ever, a pro hac vice lawyer may sign or file documents in the court. In one western state, for example, prospective pro hac vice applicants may file a complaint to initiate a case so long as they file a motion for admission and complete an application with the state bar association within seven days. In other states, particularly those that require more participation of local counsel, any document filed prior to entry of an order granting pro hac vice admission will be stricken. The document will be treated as if it had never been filed, which may mean a deadline is missed. The pro hac vice lawyer may even be required to return all fees earned in the case since start, and in some jurisdictions, this includes fees earned after a motion for admission was properly filed (and granted).
This issue can border on unauthorized practice of law and should be carefully investigated before filing.
Pro Hac Vice Admission in Criminal Cases
Occasionally, administrative and clerical errors in pro hac vice admission documents are the basis for ineffective assistance of counsel post-conviction appeal arguments, although few have been successful on these grounds.
More importantly, criminal cases best highlight a fundamental tenet of pro hac vice admission: it is a privilege and not a right. A juris doctor degree does not confer a property right to lawyers to practice law in any jurisdiction, so a local court or bar association’s refusal to temporarily admit an lawyer is not a constitutional matter in civil cases. In contrast, the denial of a motion for admission pro hac vice in a criminal case is usually treated as a disqualification of counsel. In criminal cases, the disqualification of counsel selected by a defendant may infringe his or her constitutional right to counsel of choice.
Pro Hac Vice in Administrative and Transactional Matters
Cases pending before administrative tribunals present a clearer case than transactional matters concerning the need for pro hac vice admission. In most states, pro hac vice admission rules presume imminent or existing litigation, complete with a case number, into which the motion for admission can be filed. Administrative tribunals often expressly or impliedly follow pro hac vice admission rules as outlined by the bar or local rules of court or civil procedure. In many instances, the agencies have their own pro hac vice admission rules.
The case law is thin concerning pro hac vice admission rules for transactional matters. Considering the lack of clarity and the risks involved, best practice dictates having a co-counsel arrangement with a locally licensed lawyer in transactional matters.
All lawyers should understand what constitutes unauthorized practice of law in any jurisdiction where they seek or might seek to practice. Even certain pre-admission research and investigative activities may be deemed unauthorized practice of law.
Exceptions for Lawyers Practicing Outside their Home Jurisdiction
Almost every jurisdiction allows lawyers licensed elsewhere to practice without the need for pro hac vice admission in three circumstances. The fee for admission may be waived in a fourth.
First, courts routinely exempt lawyers for the federal government from pro hac vice admission requirements.
Second, most jurisdictions also view locally-based, but not locally-licensed, general counsel differently than lawyers who enter the state to practice in a particular case. General counsel is usually exempt from the pro hac vice requirement or required to submit an application to be recognized as in-house counsel.
Third, judges who preside over complex, consolidated actions may waive the requirement to file a motion for admission pro hac vice to streamline the case.
Most states do require lawyers working pro bono on behalf of an indigent client to complete pro hac vice admission paperwork but will often waive the associated fee upon request.
The Future of Pro Hac Vice Admission
To date, no jurisdiction has entirely removed barriers to full entry into its state bar association. All states require at least some form of application process for lawyers licensed in other jurisdictions to become fully licensed.
Federal courts have progressed further than state courts on this issue. For example, many bankruptcy courts allow lawyers admitted to the federal court sitting in the same district unfettered access to the courts, and a few federal courts have done away with the pro hac vice admission requirements altogether for lawyers who are admitted to any federal district court in the United States.
Originally written by Valerie Del Grosso, Esq. of www.ProHacVice.com
[Last updated in February of 2024 by the Wex Definitions Team]