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CHANGES TO PRO HAC VICE ADMISSION TO FLORIDA COURTS AND ARBITRATIONS ARE SUMMARIZED BY BRIAN BURGOON

    As a result of rule changes approved by the Florida Supreme Court earlier this year in May [click here for sunEthics.com Ethics.com summary] and September [click here for sunEthics.com summary], the practice of pro hac vice admission to Florida courts and arbitrations has undergone significant change.  Many of these changes take effect on January 1, 2006.  Florida Bar Board of Governors member Brian Burgoon has prepared a summary of these changes, which appears below:

On May 12, the Florida Supreme Court implemented a sweeping package of rules changes that were approved by the Florida Bar Board of Governors in December 2003.  These rules changes addressed the multijurisdictional practice of law.  Some of these rules took effect by emergency motion in the aftermath of Hurricane Katrina.  The remainder of these rules (which address pro hac vice appearances in Florida state courts and in arbitrations taking place in Florida) take effect on January 1, 2006. 

A summary of these rule changes are as follows:

A.  Pro Hac Vice Appearances in Florida State Courts

Executive Summary:

Old Rule: 
(a)     Limited to 3 appearances per continuously rotating 365-day period
(b)     Trial judge had discretion to permit more than 3 appearances per 365-day period
(c)     File motion to appear only with court
(d)     No fee

New Rule:
(a)     Limited to 3 appearances per continuously rotating 365-day period
(b)     Trial judge is barred from permitting more than 3 appearances per 365-day period
(c)     File motion to appear with court, and serve copy on the Florida Bar
(d)     $250 nonrefundable fee per appearance
(e)     Applies only to new cases filed on or after January 1, 2006.  (A lawyer does not need to serve a copy of the motion on the Florida Bar or pay $250 for existing cases.)

Narrative:

Pursuant to the newly revised Florida Rule of Judicial Administration 2.061, and Rule 1-3.10 of the Rules Regulating the Florida Bar, motions to appear pro hac vice in a Florida state court are limited to three appearances in a 365-day period.  This rule is also being changed to take out the discretion of a trial judge to waive the rule and permit more than three appearances per year.  The one-year time frame is considered to be a continuously rotating 365-day period - if an appearance was made 366 days ago, it is considered to have been made in the prior year.  Also, a non-Florida attorney can have more than three active cases in Florida in a year, as long as the attorney did not make more than three initial appearances in that year.  There is no provision for exceptions or waiver of the rule to permit a fourth appearance. 

Example:        If an attorney appears in a Florida state court lawsuit on Jan. 1, 2006, Jan. 13, 2006 and Feb. 2, 2006, he/she will not be permitted to appear in another Florida lawsuit until January 1, 2007.  However, if these three cases are still active on Feb. 2, 2007, that attorney still can appear in three more lawsuits in addition to the three that are currently active.

There is a form motion that a lawyer must file with the court to seek admission in a Florida state court proceeding, and the lawyer must engage local counsel.  This rule also requires a non-Florida attorney moving for admission pro hac vice to serve a copy of the verified motion on the Florida Bar, accompanied by a $250 filing fee.  (See R. Regulating Fla. Bar 1-3.10.)   Appearances are tied to individual attorneys and not to law firms.  So, Attorney Jones can have 3 appearances, and his partner, Attorney Smith, can also have 3 appearances. 

A lawyer does not need to file a Verified Statement for Leave to Appear with the Florida Bar or pay the $250 fee for existing cases which were filed before January 1, 2006 and for which the lawyer made an appearance before January 1, 2006.

B.  Pro Hac Vice Appearances in Florida Arbitrations

Executive Summary:

Old Rule: 
(a)     There was no rule addressing or permitting this conduct.

New Rule:
(a)     Limited to 3 appearances per continuously rotating 365-day period
(b)     No mechanism for requesting, and no authority permitting, more than 3 appearances
(c)     File a Verified Statement for Leave to Appear with Florida Bar; serve opposing counsel
(d)     $250 nonrefundable fee per appearance
(e)     Applies only to new cases filed on or after January 1, 2006.  (A lawyer does not need to file a Verified Statement for Leave to Appear or pay $250 for existing cases.  Also, cases which were filed between January 1, 2005 and December 31, 2005, but which are still pending on January 1, 2006, will not count as appearances when calculating the 3 appearances.) 

Narrative:

Pursuant to newly enacted Rule 1-3.11 of the Rules Regulating the Florida Bar, non-Florida attorneys will be permitted to participate in arbitration proceedings in a pro hac vice manner.  These attorneys will be restricted to three (3) appearances per year.  The same calculation of the one-year time frame used for pro hac vice admissions in state courts is used for arbitrations.  There is no provision for exceptions or waiver of the rule to permit a fourth appearance. 

To appear, the non-Florida attorney must associate with Florida counsel, and must file a Verified Statement for Leave to Appear with the Florida Bar.  The statement must contain the information set forth in new Rule 1-3.11(e), must be served on opposing counsel within 10 days, and must be accompanied by a $250 filing fee. 

The trigger for filing a Verified Statement and thus using one of the three appearances is the filing of an arbitration demand (for plaintiffs) or filing a response to arbitration (for defendants).

This new rule, and the limitation of 3 arbitrations per year, applies only to new cases which were filed on or after January 1, 2006.  Thus, a lawyer does not need to file a Verified Statement for Leave to Appear with the Florida Bar or pay the $250 fee for existing cases which were filed before January 1, 2006.  In addition, cases which were filed between January 1, 2005 and December 31, 2005 (the 365-day period prior to the January 1, 2006 implementation date), but which are still pending on January 1, 2006, will not count as appearances when calculating the 3 appearance maximum.   Lawyers all start with essentially a fresh slate.

Disciplinary Authority

As clarified by the new multijurisdictional practices rules, the Florida Supreme Court has the authority to discipline a Georgia lawyer for activities that lawyer does in Florida or related to Florida.  If an out-of-state lawyer appearing in Florida pro hac vice is disciplined in any way (no matter how minor), he/she will be forever barred from appearing pro hac vice in Florida.  He/she would be required to take the Florida Bar Exam and be admitted (and with a prior disciplinary offense on his/her record, that would add a hurdle to passing the character fitness test).

It is important to note, nothing prevents somebody from filing an unlicensed practice of law complaint against an out-of-state attorney, and the Bar will investigate all complaints.  If the Bar determines that an out-of-state attorney is maintaining an active presence in Florida, it will investigate and prosecute that attorney. 

Also, while these rule changes do not apply to active Florida Bar members in good standing (as those attorneys can make unlimited appearances regardless of their residence or location of practice), Florida attorneys who assist in the unlicensed practice of law or any violation of the rules may also be subject to disciplinary proceedings. 

A link to the Florida Supreme Court’s opinion and the text of the rules changes is: 

<http://www.floridasupremecourt.org/decisions/2005/sc04-135.pdf>

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