Tuesday, May 19, 2009

Determination Voided By Unauthorized Practice

From the web page of the North Dakota Supreme Court, reporting the holding of a case decided yesterday:

Pro hac vice admission is required for nonresident attorneys who engage in the practice of law by appearing, either in person, by signing pleadings, or by being designated as counsel in actions filed in administrative agencies, and a motion for pro hac vice admission must be filed no later than 45 days after the service of the pleading, motion, or other paper.

A hearing officer includes an agency head when presiding in an administrative proceeding, or any other person designated to preside in an administrative proceeding.

The case involved a workers compensation claim. The corporate defendant was represented by lawyers licensed only in Ohio. The lawyers had sought and obtained reconsideration of a prior award based on the contention that the plaintiff was an independent contractor. Here, the court found that the conclusion favorable to the corporation was void because no North Dakota lawyer had entered an appearance for the corporation. 

Under the plain language of Admission to Practice R. 3, pro hac vice admission for Plewacki and Stemen [the Ohio lawyers] was required because they prepared a request for reconsideration, were designated as counsel for Carlson's claim, and filed a legal brief in the administrative proceeding. Although N.D.R. Prof. Conduct 5.5(b)(3) provided Plewacki and Stemen with a safe harbor to appear in prepatory matters before pro hac vice admission so long as they reasonably expected to be authorized to be admitted pro hac vice, we decline to equate the request for reconsideration and the informal internal procedures before WSI to prepatory work. The definition of the practice of law includes a wide variety of services besides formal administrative proceedings and involves more than providing legal services in an adjudicatory proceeding in an administrative agency. See Strong, 23 S.W.3d at 239 (preparing and filing application for review before Commission as well as appearing on claimant's behalf at hearing constitute practice of law). Rather, Admission to Practice R. 3, when read together with N.D.R. Prof. Conduct 5.5, plainly says pro hac vice admission is required for nonresident attorneys who engage in the practice of law by appearing, either in person, by signing pleadings, or by being designated as counsel in actions filed in administrative agencies. That language is not limited to formal adjudicatory proceedings.

The court's decision is linked here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/05/from-the-web-page-of-the-north-dakota-supreme-court-reporting-the-holding-of-a-case-decided-yesterdaypro-hac-vice-admission.html

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