June 15, 2001 - Supreme Court - No. 01-19-M.P. - In re: Rhode Island Ethics Commission - Present: Lederberg, Bourcier, and Flanders, JJ.
Flanders, J., dissenting. On March 1, 2001, the Court issued an order, approved by two justices of this Court, that denied the pro hac vice motion in this case. In accordance with the Court's custom in motions of this kind, no reasons were provided in the order for the Court's denial, nor were any reasons given for my dissent to that denial. Because of the public controversy that erupted in the wake of the motion's denial and the media speculation concerning the reasons why the participating justices voted as they did, I believe it would be useful for me to set forth the reasons why I dissented.
I would have granted the pro hac vice motion for the following reasons:
Compliance with the applicable rule governing admission of nonresident attorneys. Rule 9 of this Court's rules governing the admission of nonresident attorneys see note sets forth the standard that a court should apply when confronted with a motion for admission of a nonresident attorney pro hac vice. I believe that, in this case, the moving party satisfied the conditions established by our rule for admission in these circumstances, one of which is that the motion should be granted "for good cause shown." Here, the Ethics Commission (commission) established good cause why Attorney Small should be allowed to represent in any court proceedings arising out of the investigation in question by recounting the various problems it had experienced in attempting to retain qualified Rhode Island attorneys to handle the particular ethics investigation for which it had engaged his services. Attorney Small is a Massachusetts lawyer who, by all accounts, appears to be a competent, experienced, and distinguished specialist in this area of the law. I also believe the problems referenced by the commission in obtaining qualified and non-conflicted local counsel to handle this sensitive investigation were legitimate and established good cause for it to retain a qualified, nonresident attorney like Attorney Small to represent it in these matters. Moreover, in previous cases when nonresident attorneys have requested pro hac vice admission, I am not aware of any instance where this Court has ever withheld its approval of such a request merely because the attorneys involved way have rendered legal services to the clients in question before they had sought or obtained court approval to represent them in connection with pending or contemplated judicial proceedings.
(2) Alleged unauthorized practice of law. The opposition to this motion accused Attorney Small of engaging in the unauthorized practice of law before the commission in advance of seeking this Court's approval to represent the commission as its attorney for this investigation. Such accusations, I believe, should more properly be adjudicated in connection with a separate proceeding - if any were justified - charging Attorney Small with the unauthorized practice of law. But 1 do not believe they have any pertinence to deciding the present motion because, under our rule, "[g]ood cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of' the client [that is, the Ethics Commission] and not the attorney." S.Ct. R. Art. II, Rule 9. Moreover, the allegations against Attorney Small are just that; no court or trial justice has found Attorney Small - or, for that matter, anyone else affiliated with the commission - to have committed any offense whatsoever on this regard. Nor would it be appropriate for us to adjudicate such matters in the first instance before a fact finder has determined whether there is any merit to such charges; particularly when, as here, the answer to that question may turn on resolving conflicting versions of certain of the underlying events at issue. As indicated above, I believe the unauthorized-practice-of-law question should be adjudicated, if at all, in a separate proceeding concerning whether there has been any violation of any applicable law. But given the above-cited limitation to the scope of Rule 9's good-cause determination, I do not believe it is relevant or appropriate for us to consider such charges in connection with a pro hac vice motion of this type; much less is it appropriate for us to decide disputed questions of fact in ruling on this motion.
Moreover, I do not believe that In re Healy, 654 A.2d 705 (R.I. 1995), stands for the proposition that this Court's approval of a pro hac vice motion is a sine qua non before a nonresident attorney can provide any legal services to an administrative agency like the commission that is located within this state. Indeed, Rule 9 applies only when a nonresident attorney seeks to participate "in the presentation or a cause or appeal in any court of this state." (Emphasis added.) Although in Healy (and in other cases) this Court had issued an order allowing the attorney, pending his formal admission to the bar, "to represent the commission in all matters before that body," id at 706 - in addition to representing that agency in any court cases - the Court did not indicate that its approval was required before a nonresident attorney could render any legal services to the commission that did not involve appearing in court. Indeed, I believe a genuine question exists whether Rhode Island's "unauthorized practice of law" provisions apply to nonresident attorneys who provide legal advice and services to an in-state agency like the commission, especially if a substantial portion of such services are rendered from the attorney's out-of-state office. In any event, I do not believe that the Healy case (which did not involve a nonresident attorney) clearly required Attorney Small to obtain this Court's approval before he could render any legal services to the commission that did not involve appearing in court - even though, in hindsight, that might have been the most prudent course for him and the commission to follow. Moreover, this Court could have granted Attorney Small's motion retroactive to the date he first began to perform legal work on the commission's behalf and thereby removed this tempest from its teapot. Instead, the denial of this motion only has served to fan a small brush fire into a raging conflagration.
(3) Allowing pro hac vice motions to be used as a tactical device in the underlying proceedings. Parties who oppose a pro hac vice motion should not be allowed to use "kill the messenger" litigation tactics as a transparent ploy to attempt to compromise the merits of their adversary's position. in this case, I believe there is great risk that, by denying this motion, this Court will be encouraging the deployment of tactical sideshows in connection with pro hac vice motions.
(4) Proceed via rulemaking. I believe the Court should adopt an appropriate rule to govern the provision of legal services by nonresident attorneys to Rhode Island clients outside of the courtroom, just as it has done in Rule 9 for nonresident attorneys who seek to represent clients in court-related matters. Otherwise, with no rule to alert practitioners to this requirement, with no standard to guide our rulings on these motions, and with no clear test for what triggers the need to seek pro hac vice approval from this Court in the first place, we are creating a trap for the unwary and fostering collateral litigation concerning the legality of any administrative proceedings that occur before the granting of a pro hac vice request.
For these reasons, I would have granted the motion and allowed Attorney Small to represent the commission pro hac vice pending our adoption of an appropriate rule governing this situation. Chief Justice Williams and Justice Goldberg did not participate.
Justice Williams presided over a trial in which Rhode Island Supreme Court Justice Flanders states, "the Rhode Island Superior Court violated Christopher Thornton's Sixth Amendment rights in 3 specific ways."
1Rule 9 of Article II of the Supreme Court Rules (Admission of Attorneys and Others to Practice Law) provides as follows:
"Rule 9. Nonresident attorneys - Senior law students. - Any attorney who is a member in good standing of the bar of any other state, not residing in this state, may, upon special and infrequent occasion and for good cause shown upon written motion presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such an extent as the court may prescribe in the presentation of a cause or appeal in any court of this state, if such other state grants like privileges to members of the bar, in good standing, of this state; provided, however, that a member of the bar of this state must sign all pleadings, briefs and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded. Good cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney. Such facts may include but are not limited to the following:
(a) a showing that the cause involves a complex field of law in which the nonresident attorney is a specialist,
(b) a long-standing attorney-client relationship,
(c) lack of local counsel with expertise in the field involved,
(d) the existence of legal questions involving the law of the foreign jurisdiction,
(e) the need for extensive discovery proceedings in the foreign jurisdiction." (Emphasis added.) Return to top