Opinion
08-21-00062-CV
06-07-2022
IN RE: AUTOZONERS, LLC, Relator.
AN ORIGINAL PROCEEDING IN MANDAMUS
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
GINA M PALAFOX, Justice.
In this original proceeding, Relator Autozoners, LLC, seeks a writ of mandamus directing the Honorable M. Sue Kurita, Judge of County Court at Law No. Six of El Paso County, to rescind the court's order denying Relator's motion to admit its two nonresident attorneys as counsel pro hac vice. Finding no abuse of discretion, we deny the requested relief.
I. FACTUAL BACKGROUND
A. The initial hearing
In the cause pending below, Roman Velasquez, the real party in interest, initiated a discrimination lawsuit against Relator Autozoners, LLC. Along with special exceptions, Relator responded by filing an original answer signed by El Paso attorney, Bruce A. Koehler, a Texas licensed attorney. Following Koehler's signature block, the pleading included like information for Relator's nonresident attorneys, Laurie M. Riley and Tracy E. Kern. Riley's information reflected not only that she was licensed in Florida but that her application for pro hac vice admission would be forthcoming. Similarly, Kern's information reflected she was licensed in Louisiana and that her application for pro hac vice admission was also forthcoming. Additionally, however, Kern's signature block included a line stating, "Admitted Pro Hac Vice." Riley and Kern listed the same law firm, but located in Miami and New Orleans, respectively.
Four days after filing the original answer, Relator filed opposed motions to admit Riley and Kern pro hac vice, signed by Koehler. Both motions asserted that Riley and Kern served as Relator's corporate counsel and they were both members in good standing with their respective state bars. The motions also asserted that Koehler had been retained as co-counsel in the case and he would continue to participate in the proceedings. Both motions also provided information as to whether either lawyer had been granted pro hac vice admission in any Texas case during the last two years. Riley's motion reflected she had not been involved in any Texas case; whereas Kern's motion reflected she had been granted pro hac vice admission in one Texas case.
On December 11, 2020, the trial court held an evidentiary hearing on both motions. Kern testified she had sought pro hac vice admission several times throughout her 30-year career, but given the length of her career, she considered the number of Texas cases she had handled to be limited. During the past two years, she had sought and been granted pro hac vice admission once in a Texas case out of El Paso County. When she sought admission in that case, she had also disclosed a pro hac vice admission in a case pending in Hidalgo County. She acknowledged similar pro hac vice admissions in federal courts in Texas and said that she had only one recent admission of that nature.
On cross examination, counsel for Velasquez covered three key areas of opposition to the motions: (1) that Relator's nonresident attorneys had engaged in the unauthorized practice of law; (2) that the website of Relator's nonresident attorneys reflected they practiced in Texas; and (3) that Kern had been sanctioned by a federal court in Texas. First, Kern disagreed that she had engaged in the unauthorized practice of law merely because her name appeared in the signature block below Koehler's name and signature. She stated that Koehler had prepared and signed the answer, that she had only provided input, and the answer reflected that her and Riley's pro hac vice applications would be forthcoming. Second, Kern explained that her firm's website reflected that she practiced in Texas because Relator, who she had represented for 30 years, regularly conducted business in every state. Lastly, she acknowledged that in a case styled Alexander v. Monsanto Co., 396 Fed.Appx. 137 (5th Cir. 2010), the United States Court of Appeals for the Fifth Circuit described some of the comments she made during voir dire and closing argument as being unwarranted and inaccurate statements of the law, but also clarified it had not assessed any sanctions for that conduct.
Before Riley testified, Velasquez' counsel informed the trial court he would question her about the drafting of the answer filed in the case because it differed from Koehler's usual style. Velasquez' counsel asserted he had suspicions that it had actually been drafted either by Kern or Riley. Riley testified that she also had been granted pro hac vice admission in the same federal case that Kern had testified about. She stated she had not prepared any pleadings in the case, but she had reviewed such pleadings and worked with Koehler on the answer and certain discovery. When pressed as to whether she and Kern had prepared the answer for Koehler's signature, she denied having done so.
Following presentation of the evidence, Relator's counsel argued that both attorneys were outstanding and met all requirements for pro hac vice admission. Velasquez' counsel argued the nonresident attorneys, especially Kern, were misusing the pro hac vice procedure by asking for such admission in multiple cases. He further asserted that both were engaged in the unauthorized practice of law, arguing they had prepared pleadings before being admitted formally. He pointed out that the pleadings in this case were different from those Koehler customarily filed thereby establishing those pleadings had been drafted by either Kern or Riley.
The trial court denied Relator's motions. When ruling, the trial court commented that Autozoners would not be jeopardized as Koehler had a reputation for being one of the top five lawyers in the community for handling the type of matter at issue. Relator later filed a motion for reconsideration.
B. The hearing on reconsideration
On March 4, 2021, the trial court heard Relator's motion for reconsideration. Relator argued a litigant had the right to be represented by the attorney of its choice, that a trial court had to have a compelling reason to deny a litigant counsel of his choosing, and that the trial court did not have a compelling reason to deny the pro hac vice motions in this case. Relator also reiterated that local counsel had signed Relator's answer. While acknowledging that nonresident counsels' names also appeared in the signature block, Relator argued the pleading further indicated, on its face, that nonresident attorneys would be seeking pro hac vice admission.
In response, Velasquez' counsel reminded the trial court that it had discretion in deciding the issue urging there were other problems besides the appearance of both attorneys' names on the answer. Counsel referenced that Kern publicly advertises that she has an active practice in Texas. He also maintained, while appearing to show the trial court examples of an answer previously filed by Koehler, that based on apparent differences between the answer Koehler customarily filed and the answer in this case, it was evident to him that the nonresident attorneys had prepared the answer and other pleadings in this case. And finally, Velasquez's counsel showed the trial court an email Kern sent to him and Riley in which she attempted to engage him in discussions regarding the pro hac vice motion without also including Koehler in the discussion.
The trial court denied Relator's motion for reconsideration. This petition for writ of mandamus followed.
II. MANDAMUS STANDARD
To be entitled to mandamus relief, a relator must show that a trial court has clearly abused its discretion and that relator has no adequate appellate remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Mandamus is an available remedy when a trial court abuses its discretion in denying a nonresident attorney's request for pro hac vice admission. See Keller Indus., Inc. v. Blanton, 804 S.W.2d 182, 185 (Tex. App.-Houston [14th Dist.] 1991, orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly. Walker, 827 S.W.2d at 840. Where, as here, a relator seeks to overrule a decision based on factual issues or matters committed to the trial court's discretion, relator has the burden to show the trial court could have reached only one decision on the facts. Id. at 839-40. "The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The question for the reviewing court is whether the trial court acted without reference to any guiding rules and principles. Id.
III. PRO HAC VICE ADMISSION
Texas courts have long held that "[t]he right of a litigant to be represented by the attorney of his choice is a significant one" and this right has been extended to litigants who wish to be represented by nonresident counsel. In re Vossdale Townhouse Ass'n, Inc., 302 S.W.3d 890, 893 (Tex. App.-Houston [14th Dist.] 2009, orig. proceeding); Keller Indus., Inc., 804 S.W.2d at 185. Because depriving a litigant of the right to be represented by counsel of choice can cause immediate and palpable harm to the affected litigant, courts must have a compelling reason for making such a decision. Keller Indus., Inc., 804 S.W.2d at 185. However, when a nonresident attorney's services are desired, the right to counsel of one's choice is not unfettered because a nonresident attorney must be approved by the trial court pursuant to the Supreme Court's standards. Id. at 185 ("The practice of law is not a right bestowed upon an individual; rather, it is a license granted by the state subject to rules and regulations" (citing State Bar of Texas v. Heard, 603 S.W.2d 829, 834 (Tex. 1980)). Additionally, while courts commonly permit out-of-state attorneys to appear pro hac vice, such practice is not guaranteed by statute nor by the Constitution. See Leis v. Flynt, 439 U.S. 438, 443 (1979).
The question of the reputability of nonresident attorneys is addressed to the discretion of the trial court. Keller Indus., Inc., 804 S.W.2d at 186 (citing State Bar v. Belli, 382 S.W.2d 475, 476 (Tex. 1964)). The specific supreme court rule that guides a trial court's evaluation of whether to grant a nonresident attorney pro hac vice admission is Rule 19 of the Texas Rules Governing Admission to the Bar of Texas which sets out the requirements for a nonresident attorney's participation in Texas proceedings. Tex. Rules Govern. Bar Adm'n R. XIX(d). Rule 19(a) provides that a nonresident attorney may seek permission to participate in the proceedings of any particular cause in a Texas court by paying an initial mandatory fee and filing a sworn motion in the applicable trial court. Tex. Rules Govern. Bar Adm'n R. XIX(a). Rule 19(d) provides that a court may deny a nonresident attorney's motion for admission pro hac vice if the court determines one of the following: (1) The nonresident attorney is not a reputable attorney who will observe the ethical standards required of Texas attorneys; (2) The nonresident attorney has been appearing in courts in Texas on a frequent basis; (3) The nonresident attorney has been engaging in the unauthorized practice of law in the state of Texas; or (4) Other good cause exists to deny the motion. Tex. Rules Govern. Bar Adm'n R. XIX(d).
In resolving this mandamus action, we examine Keller Indus., Inc., one of the few Texas cases that addresses a trial court's denial of an application for pro hac vice admission. Keller Indus., Inc., 804 S.W.2d at 184. In Keller Indus., Inc., Relator filed a petition for writ of mandamus after the trial court denied its motion to admit its two nonresident attorneys as counsel pro hac vice. Id. at 183. In opposition to the motion, Plaintiff filed attachments that reflected that other attorneys from the nonresident attorneys' law firm had been refused permission to appear in three California cases. Id. at 184. Plaintiff also alleged that the law firm was hard to deal with in the areas of discovery and trial scheduling. Id. The trial court did not hold a formal hearing on the matter and based its decision to deny pro hac vice admission on the motion, the response, and plaintiff's attachments. Id.
In a divided decision, the Fourteenth Court of Appeals held that the trial court had abused its discretion. Id. at 185-86. In a frequently cited part of the court's opinion, it stated that "[t]he right of a litigant to be represented by the attorney of his choice is a significant one" and it extended this right to a party that desires representation by a non-resident attorney. Id. at 185. Our sister court held that "[a]bsent a compelling reason, courts should not deprive litigants of that right because such deprivation can result in immediate and palpable harm." Id. But it also recognized that the right is not unfettered because a non-resident attorney must be approved by the trial court pursuant to the supreme court's standards. Id. (citing Heard, 603 S.W.2d at 834). In arriving at its conclusion, however, the court found there were no compelling reasons on the record regarding the denial of the motion and added that since there had been no hearing, there was no evidence reflecting that the nonresident attorneys were not reputable. Id. The court conditionally granted Relator's petition for writ of mandamus but added that its judgment was not to be understood as precluding the trial court from holding an evidentiary hearing to determine whether the nonresident attorneys were qualified under the standards of the Supreme Court of Texas. Id. at 186.
A. The unauthorized practice of law
This case presents a different scenario from the one in Keller Indus., Inc. Of note, the trial court held an evidentiary hearing to include credibility determinations and the weighing of several factors. One of the factors the trial court examined was the information Relator included on the signature page of its original answer. Relator contends the trial court erroneously believed the nonresident attorneys had signed Relator's answer when they had not. Whether or not the trial court was mistaken in this regard, the trial court's record statement that the nonresident attorneys had "put the cart before the horse," shows the trial court had expressed broader concerns. That is, by appearing in the signature block of information, the two nonresident attorneys had prematurely identified themselves as representing Relator in the cause even before the court had actually granted admission pro hac vice, regardless of their additional assertion of a forthcoming motion.
Viewing the record as we must, it further establishes the trial court correctly understood Relator's answer had indicated that applications for pro hac vice admission would be forthcoming. Even so, the trial court viewed such representation as being premature under the circumstances. Based on a violation of the rules governing bar admission, at least one of our sister court of appeals denied a motion for admission pro hac vice where a nonresident attorney's information was prematurely included on a party's initial pleading before the attorneys had been properly admitted by the courts. See In Re Pine Tree Capital, LLC, No. 05-22-00105-CV, 2022 WL 500035, at *1 (Tex. App.-Dallas Feb. 19, 2022, orig. proceeding) (mem. op.) (denying motion to be admitted pro hac vice for noncompliance with Rule 19(d) requirements for participation in Texas proceedings, where nonresident attorney placed his signature and signature block on a pleading along with those of a member of the Texas Bar before gaining pro hac vice admission); see also Tex. Rules Govern. Bar Adm'n R. XIX(d); Tex. Gov't Code Ann. § 81.102(a), (b).
At least two other jurisdictions have considered this issue and agree with the trial court's view. See Isom v. Valley Forge Ins. Co., 716 Fed.Appx. 280, 288 (5th Cir. 2017) (where foreign counsel's name appeared on the complaint before being granted pro hac vice admission and denial of admission was mandatory if an applicant made an appearance before securing approval, holding the district court did not abuse its discretion in denying pro hac vice application for engaging in the unauthorized practice of law where pursuant to Mississippi law, a foreign attorney is deemed to have made an appearance in a lawsuit where they sign or allow their name to be listed on the pleadings); In re Nevins, 60 V.I. 800, 803-04 (V.I. 2014) (inclusion of nonresident attorney's name on cover and signature page of brief before pro hac vice petition was ruled on constituted the unauthorized practice of law and the fact that the words "pro hac vice application pending" appeared after the nonresident attorney's name did not "render his conduct any less improper"); In re Williamson, 838 So.2d 226, 235 (Miss. 2002) (affirming the denial of a pro hac vice request where nonresident attorney's name and address appeared on the complaint before his admission was granted and warning that "attorneys are hereby noticed and cautioned that a foreign attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign attorney signs the pleadings or allows his or her name to be listed on the pleadings").
The record also contains other factors that support the trial court's denial of the motions based on its exercise of its discretion. First, the trial court was able to assess the credibility of the nonresident attorneys when they denied Velasquez' counsel's assertions that they had in fact drafted Relator's answer because it differed from the customary answer filed by Koehler. The trial court also appears to have had the opportunity to examine the answer in this case and at least one other answer Koehler had filed in the past and could have concluded that material differences existed. Based on this evidence and the trial court's assessment of the nonresident attorneys' credibility, the trial court could have found this information contributed to a finding that the nonresident attorneys had drafted pleadings before they had received the trial court's permission to participate in the proceedings, thereby constituting the unauthorized practice of law. See In re B.B., 632 S.W.3d 136, 141 (Tex. App.-El Paso 2021, orig. proceeding) (credibility and demeanor questions are reserved for the trial court on mandamus review); see also Tex. Gov't Code Ann. § 81.101(a) (practice of law includes both preparing documents "incident to an action" pending in Texas, as well as "service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge").
B. Other Rule 19(d) Factors
Although the trial court primarily focused on its belief that the nonresident attorneys engaged in the unauthorized practice of law, it also expressed some concern with their number of Texas court appearances. The evidence on this issue centered on Kern's and Riley's prior appearances in Texas state and federal courts. As previously noted, pursuant to Rule 19(d), a trial court may deny pro hac vice admission if it finds that the applicant has been appearing frequently in Texas courts. Tex. Rules Govern. Bar Adm'n R. XIX(d). Relator disputes whether federal pro hac vice admissions should be factored in by the trial court. We do not find it necessary to address the issue regarding whether federal pro hac vice admissions should be considered because even without considering the federal court appearances, the trial court heard evidence that within the past two years, Kern had been granted pro hac vice admission in one other case pending in an El Paso district court and that when she applied for pro hac vice admission in that case, she disclosed another pro hac vice admission in Hidalgo County. It was within the trial court's discretion to decide that these prior pro hac vice admissions coupled with the current application of this case qualified as appearing frequently in Texas courts. See Frazier v. Heebe, 482 U.S. 641, 647 (1987) (describing pro hac vice practitioners as "one-time or occasional practitioners"). Thus, as to Kern, the trial court could have also denied the application based on frequent appearances in Texas courts. Tex. Rules Govern. Bar Adm'n R. XIX(d).
Additionally, the trial court heard evidence that in an unpublished United States Fifth Circuit Court opinion, the court had characterized statements made by Kern as incorrect and unwarranted during the trial of a federal discrimination claim. Alexander, 396 Fed.Appx. at 140. Based on Kern's referenced conduct in a case involving claims similar to the present case while employed at her current law firm, the trial court could have also determined that such conduct constituted good cause for denying the motion. Tex. Rules Govern. Bar Adm'n R. XIX(d).
In sum, we conclude that this case is distinguishable from Keller Indus., Inc., because the trial court in this instance held an evidentiary hearing and made credibility findings before exercising its discretion on the motions. We may not substitute our judgment for that of the trial court with regard to its fact finding and other matters committed to its discretion, even if we would have decided the issue differently. In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017). To grant Relator's mandamus relief, we would have to conclude that under the law and the facts of this case the trial court could reasonably have reached only one decision. Walker, 827 S.W.2d at 839-40. Under this record, we cannot say that the trial court's decision was arbitrary and unreasonable. Id.
Accordingly, the record before us does not reflect that the trial court abused its discretion by denying Relator's motion to admit its nonresident attorneys as counsel pro hac vice. See Tex. R. App. P. 52.8(a); Walker, 827 S.W.2d at 839-840.
IV. CONCLUSION
We deny Relator's petition for writ of mandamus.
Alley, J, concurring.
CONCURRENCE
JEFF ALLEY, Justice.
I concur in the Court's judgment. Under our clear-abuse-of-discretion mandamus standard, when a case turns on factual or other matters committed to a trial court's discretion, we cannot grant relief unless the "trial court could have reached only one conclusion and that a contrary finding is thus arbitrary and unreasonable." In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017). On those discretionary matters, we may not substitute our judgment for the trial court, even if we see the issue differently. Id. "But with regard to questions of law and mixed questions of law and fact, a trial court has no 'discretion' in determining what the law is or applying the law to the facts, even when the law is unsettled." Id. (internal quotation marks omitted). The trial court here likely made two kinds of determinations to reach the outcome that it did: one of law and one or more of fact.
The Legal Determination
I agree with Autozoner that the trial court's original statement that the non-admitted counsel were "signing pleadings before [they got] admitted" would not have been legally correct given how pleadings are signed in our digital age. See Tex.R.Civ. P. 8 (the "attorney whose signature first appears on the initial pleadings for any party shall be the attorney in charge.") (emphasis supplied); Tex.R.Civ. P. 21(f)(7) (an electronically served document is signed by an "/s/" or scanned image of a signature). While Autozoner's non-admitted attorneys' signature block appears on the filed answer, neither had a line for a signature, and thus no "/s/" or digital image of a signature. But I agree with the majority that the trial court's "signing" statement in context was not the sole basis for the lower court's decision. The court also referenced "putting the cart before the horse" in filing pleadings, which implicates the inclusion of the signature blocks for non-admitted counsel, whether signed or not.
In effect, the trial court made a legal determination that a non-admitted attorney has entered an appearance by including their signature block on a pleading before the non-admitted attorney obtains approval of a pro hac vice motion. And they have done so even if the non-admitted attorneys' signature block adds the statement that a pro hac vice motion would be forthcoming.No doubt, an appearance by a non-admitted attorney implicates the unauthorized practice of law, which is one of the grounds on which a trial court may deny an otherwise complete pro hac vice motion. See Tex.Gov't Code Ann. § 81.101(a) (practice of law includes "proceeding on behalf of a client before a judge in court"); Tex.Rules Govern.Bar Adm'n R. XIX(d) (engaging in the unauthorized practice of law in the state of Texas is a ground for denial of motion). The majority tacitly approves of this signature block rule by citing a line of cases that hold that a non-admitted attorney makes an appearance-is practicing law without a license in the State-by allowing their signature block to be included on a pleading before a pro hac vice motion has been granted. But we should quickly add that our opinion today is the first clear statement of that concept by a Texas court in a published opinion.
One of the attorney's signature blocks also states, "Admitted pro hac vice", which I assume to be a typographical error.
When Autozoner's answer was signed, one could not have found any controlling on-point Texas authority for the proposition that including non-Texas admitted counsel's signature block, with the notation that a pro hac vice motion would be forthcoming, constitutes an appearance. Rather, had Autozoner's counsel engaged in the kind of exhaustive search that our mandamus appellate process allows for, they would have found a two-paragraph unpublished memorandum opinion from the Dallas Court of Appeals that chastised two lawyers who were not members of the Texas Bar, but whose signature blocks appeared on a mandamus filing. In re Hartford Life and Annuity Ins. Co., No. 05-14-00457-CV, 2014 WL 1613018, at *1 (Tex.App.--Dallas Apr. 22, 2014, orig. proceeding) (mem. op.). A Texas lawyer had signed the pleading, and the two non-Texas lawyers represented that they had been admitted to practice pro hac vice, presumably at a trial court below. But the two had not moved for or been granted permission to appear pro hac vice in the appellate court. Id.
The mandamus petition was summarily denied because it was not properly certified. So the pro hac vice issue was not the determining legal issue used to decide the case. Recently, the Dallas Court of Appeals cited Hartford in criticizing a non-admitted lawyer who both signed and included his signature block on a mandamus petition. In re Pine Tree Capital, LLC, No. 05-22-00105-CV, 2022 WL 500035, at *1 (Tex.App.--Dallas Feb. 18, 2022, orig. proceeding) (mem.op.).
But as the mandamus petition also notes, a line of Texas cases in the sanctions context holds that a lawyer whose name appears on a pleading, but who has not signed it, is not subject to sanctions for signing a defective pleading. See Yuen v. Gerson, 342 S.W.3d 824, 828 (Tex.App.- -Houston [14th Dist] 2011, pet. denied). That rule, however, does not mean the non-signing attorney has not made an appearance. Because an attorney whose name is on the signature block has appeared in the case, at least in the sense that they can later validly file a jurisdictional pleading independent of the lead counsel. See City of Tyler v. Beck, 196 S.W.3d 784, 787 (Tex. 2006) (refusing to discount motion for new trial simply because counsel other than lead counsel filed the pleading); see also TNT Bestway Transp., Inc. v. Whitworth, No. 05-96-01900-CV, 1999 WL 374158, at *6 (Tex.App.--Dallas June 10, 1999, pet. denied) (citing line of cases holding a jurisdictional pleading signed by non-admitted counsel is not a defect nullifying the pleading when counsel later is granted permission to appear pro hac vice).
The Government Code defines the "practice of law" by enumerated examples, such as among others, "preparation of a pleading" and "proceeding on behalf of a client before a judge in court." Tex.Gov't Code Ann. § 81.101(a). The enumerated examples do not specifically mention inclusion of a signature block on a pleading. But the list of examples is not exclusive, as section 81.101(b) states that the "definition in this section" does not "deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law." Id. § 81.101(b); Unauthorized Practice Comm. of the State Bar of Texas v. Cortez, 692 S.W.2d 47, 51 (Tex. 1985) (legislative intent of § 81.101(b) recognizes "the inherent power of the courts to determine what is the practice of law on a case by case basis, unconfined by the statute.").
Our Court's own research found a narrow line of out-of-state authority that faults attorneys who allow their signature block to appear on a pleading before they have been admitted pro hac vice. The Mississippi Supreme Court so held in In re Williamson, 838 So.2d 226, 235 (Miss. 2002), cert. denied, 540 U.S. 821 (2003): "In the future, attorneys are hereby noticed and cautioned that a foreign attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign attorney signs the pleadings or allows his or her name to be listed on the pleadings." (emphasis supplied). The case has been followed in Mississippi state courts, and federal courts hearing Mississippi cases. See Isom v. Valley Forge Ins. Co., 716 Fed.Appx. 280, 288 (5th Cir. 2017) (unpublished) (finding no abuse of discretion when trial court disqualified attorneys who had allowed their names to be listed on the complaint and attempted to negotiate a settlement before the district court acted on their applications for admission to practice pro hac vice); Reech v. Sullivan, No. 3:18-CV-35-HSO-LRA, 2018 WL 1698303, at *2 (S.D.Miss. Apr. 5, 2018) (same). The U.S. Virgin Islands follows a similar rule. See Matter of Nevins, 60 V.I. 800, 804 (V.I. 2014) (appellate court denied pro hac vice motion when brief that party filed included the signature block of the attorney seeking admission; that the brief included the words "pro hac vice application pending" after the attorney's name "does not render his conduct any less improper").
The non-admitted attorney in that case had signed up a medical malpractice case through his in-state advertising. In re Williamson, 838 So.2d at 230. The original petition included his signature block along with local Mississippi counsel. Id. The non-admitted counsel did not file a motion for pro hac vice until opposing counsel moved to strike the pleading. Id. at 230-31. And the original pro hac vice motion that he filed failed to disclose several cases in which he made appearances in the State. Id. at 231. The Williamson decision was not unanimous as four Justices concurred, two dissented without opinion, and two dissented with an opinion that included these criticisms:
The Court's holding today illustrates an antiquated approach to a modern day question of law concerning what is, ultimately, the right of a citizen to choose legal representation. . . . This holding and the trial court's according ruling are the first of any court to this effect. Thus, Miller's actions prior to the ruling could not possibly constitute a violation, much less one sufficient to deny the pro hac vice motion. . . . Today, however, the Court foists a completely senseless-a radical- regulation upon the legal profession, which will ultimately hurt none other than the citizens of this state who have a right to counsel of their choiceId. at 239, 243 (McRae, P.J., dissenting).
I could agree that including a signature block that states a pro hac vice motion is "forthcoming" does not negate that counsel has appeared when the answer was filed. Stated otherwise, including an attorney's signature block with a reference to complying with the rules for non-admitted attorneys in the future, is different from complying with the rules at the time of the answer. I analogize the situation to filing a special appearance. A party who files a general denial and then a few days later files a special appearance has waived the issue, because the first pleading constituted an appearance. See In re Guardianship of Parker, 275 S.W.3d 623, 628 (Tex.App.--Amarillo 2008, no pet.). If the special appearance is filed along with a denial, however, the party has only conditionally appeared, and there is no waiver of a jurisdictional defense. Tex.R.Civ.P 120a. Because in a technical sense, Autozoner's non-admitted attorneys appeared when the answer was filed, the trial court did not err in concluding they technically violated the unauthorized practice of law rules for our state.
Perhaps the situation would be different here if the non-admitted attorney's signature block stated, "subject to a pro hac vice motion, contemporaneously filed" or words to that effect. But the wiser practice would be to omit the non-admitted attorney altogether until a pro hac vice admission is approved, because including the non-admitted attorneys on the answer adds nothing substantive to the pleading, and in Texas, pleadings may be freely amended without leave of court. Tex.R.Civ.P. 63.
If that technical violation was the only issue before us, I might be inclined to follow the dissenting rationale expressed by two justices in the In re Williamson case. 838 So.2d at 239 (McRae, dissenting) ("the majority holds Miller to a standard that did not exist, and worse appears to hold him guilty of violating it.") (emphasis original). As discussed above, when the answer was filed, there was no controlling Texas authority that would have guided counsel in preparing the answer. Our research has found only one state and one U.S. territory that have enunciated the rule. And looking to other states, some attorneys have apparently engaged in this practice without adverse consequence. See Whitworth, 1999 WL 374158, at *6 (collecting cases in which non-admitted counsel signed significant pleadings and then later obtained permission to appear pro hac vice). As with the dissent in Williamson, applying the rule retroactively, gives me pause. But going forward in Texas, attorneys should be on notice that they should omit non-admitted attorneys on a signature block until a pro hac vice application is granted.
Abuse of Discretion Issues
The real party in interest also suggests that the trial court engaged in its discretionary fact finding function and could have denied the pro hac vice motions because (1) the non-admitted attorneys drafted a pleading (which they deny), (2) the non-admitted attorneys have appeared frequently before Texas courts, and (3) one engaged in misconduct sufficient to constitute "good cause" for denying the motion. I agree that Autozoner has not shown a clear abuse for the first of these discretionary determinations, but I disagree with my colleagues as to latter two issues.
At the hearing on a motion to reconsider, the real party in interest argued that the non-admitted attorneys did not simply allow their signature blocks to appear on the answer. Rather, they were engaged in drafting the pleading. That is, the claim was made that the non-admitted attorneys did more than just review the answer as they testified to. The argument focused on a comparison of the Texas counsel's signature block as it appears on pleadings that only he is listed on and the answer which also includes the non-admitted counsel. And to be sure, even the pleadings in this case demonstrate that the Texas lawyer's signature block as it appears in the answer is markedly different from how the signature block appears in a pleading that Texas counsel filed on his own. I do not discount that national or regional counsel will often review pleadings filed in the various jurisdictions that they administer, if for no other reason than to maintain consistency in a client's publicly pleaded positions. But the trial court could have found that the altered signature block is more suggestive of draftsmanship, rather than editing for consistency. In other words, the signature blocks are markedly different and would support an inference that the documents were prepared by different authors, with the further inference that the non-admitted attorneys drafted the answer. And the Government Code expressly provides that preparation of a pleading is part of the practice of law. Tex.Gov't Code Ann. § 81.101(a).
While showing the trial court a different pleading from a different case, real-party-in-interest's counsel argued: "And more importantly, look at the signature block. Look how he prepares his signature block--Now, look at the defendant's answer in this case, the exhibit they attached to their motion. It is nowhere near this."
Comparing Texas counsel's signature block on the answer (which also contains the non-admitted attorney's signature block) to that on the Notice of Hearing for the pro hac vice hearing (containing only Texas counsel's signature block) shows these obvious differences: (1) the placement of the signature line; (2) the bolding versus non-bolding of the firm name; (3) the omission versus inclusion of a State Bar Number; (4) the reference to "fax" versus "Telefax"; (5) the appearance of the email addresses. In the answer, Texas counsel's signature block mirrors the same style as the out-of-state's counsel.
The real party in interest advances other rationale under which the trial court might have denied the pro hac vice motions, some which are discussed in the majority opinion. I also write separately because I conclude none are compelling, nor would support exclusion of both attorneys (Tracy E. Kern and Laurie M. Riley).
One other reason suggested by the majority for denying the pro hac vice motions is that attorneys Kern and Riley "frequently" appear in Texas courts. Rule 19 permits the trial court to deny a pro hac vice motion "if the court determines that the non-resident attorney . . . has been appearing in courts in Texas on a frequent basis[.]" Tex.Rules Govern.Bar Adm'n R. XIX(d). The rule does not define what constitutes a "frequent basis." The rule does require the applicant to list "all cases and causes . . . in Texas courts in which the non-resident attorney has appeared or sought leave to appear or participate within the past two years[.]" Id. Rule 19(a)(3).
A separate subpart of the rule contemplates that the trial court can inquire into the frequency issue, and I do not read that rule as limiting the trial court's inquiry to only a two-year period as suggested by some of the argument below. Id. at Rule 19(d).
Riley's moving affidavit swore she had not moved to appear in any Texas court in the past two years. At the hearing, Attorney Riley was not asked about other cases she handled in Texas, other than one federal matter. Kern's moving papers disclosed one other Texas case, also in the past two years. At the hearing, on questioning by the real party in interest's counsel, Kern agreed that she has appeared "a number of times" in her 30-year law career in Texas, but only once in the past two years. She acknowledged that her application to appear pro hac vice in the one recent Texas state case, that she may have listed another prior Texas state case out of Hidalgo County.
The majority opinion concludes that the two prior state cases that Kern acknowledged, plus the application here, could constitute the "frequent" appearance in a Texas court. I believe it is unnecessary and unwise to reach that conclusion. First, whether two cases, plus the application here, constitutes a "frequent basis" is questionable at best. The Merriam-Webster Collegiate Dictionary defines "frequent" as: "common, usual" and "often repeated or occurring" and "acting or returning regularly or often". Frequent, Merriam-Webster's Collegiate Dictionary (11th ed. 2003). Another dictionary defines the term as "constant, habitual, or regular". Frequent, Webster's New Universal Unabridged Dictionary (2001). One or two prior cases, plus the application here, is simply not frequent.
The frequency rationale is also undercut because attorney Riley, whose motion was also denied, had not appeared in any other Texas state case, and only one federal case (which the majority does not consider as part of its rationale). Thus frequency could not have been the rationale the trial court relied on below, and even if it were, it could not apply to attorney Riley at the very least.
Finally, the majority concludes that references to attorney Kern in an unpublished appellate opinion might have served as good cause to deny her admission. Alexander v. Monsanto Co., 396 Fed.Appx. 137, 139 (5th Cir. 2010). As with the frequency issue, the fact that the case involved only attorney Kern, and not attorney Riley, is the best evidence that the trial court could not have relied on that basis to exclude both attorneys. Even at that, the bare facts of the case as reported by the Fifth Circuit are an insufficient basis to exclude attorney Kern. The case involved a party attempting to overturn an adverse jury verdict based on claimed error in Kern's jury argument in voir dire and closing. The Fifth Circuit found that challenges to three of the statements urged on appeal lacked any merit. Id. at 140. The court's opinion states that one jury argument where counsel argued what the jury needed to find to render a verdict "was not entirely correct." Id. at 139. As to a question asked in voir dire, the court agreed that the "implication" of the question was "inaccurate and unwarranted." Id. at 140. No sanctions or disciplinary proceedings were at issue. None of the challenged statements amounted to reversible error. At most, the trial court here had an appellate opinion summarizing the events of a case tried more than a decade ago. A Westlaw or Lexis search for cases involving alleged improper jury argument will turn up thousands of reported Texas appellate decisions. Short of an appellate opinion upholding a disciplinary infraction, sanction, or egregious error meriting reversal, I would be disinclined to weaponize run of the mill claims of improper jury argument as a ground to deny a client their chosen counsel. For these reasons, I reject the added rationale suggested by the majority in section III(b) of the opinion.
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In deciding an application for pro hac vice admission, a trial court must balance important competing interests, including a client's right to choose its own counsel and the ability of a state to regulate the conduct of those appearing in its courts. Keller Indus., Inc. v. Blanton, 804 S.W.2d 182, 185 (Tex.App.--Houston [14th Dist] 1991, no pet.) ("The right of a litigant to be represented by the attorney of his choice is a significant one."). I would add the consideration of comity, because how we treat out-of-state regional and national counsel, may influence how Texas regional and national counsel are treated elsewhere. See, e.g., Willett v. State, 970 S.W.2d 804-06 (1998) (per curiam) (denying Texas counsel's pro hac vice motion to participate in the oral argument of the case based on Arkansas comity provision); Jensen v. Wisconsin Patients Comp. Fund, 621 N.W.2d 902, 905 (Wis. 2001) (stating that while pro hac vice admission is a privilege rather than a right, Wisconsin as a matter of comity "cheerfully conceded the privilege to attorneys of sister states to engage in the conduct of trials in this state."); Matter of Fletcher, 655 N.E.2d 58, 59 (Ind. 1995) (per curiam) ("Such appearances in one state by an attorney regularly admitted and licensed to practice in another state are generally permitted as a matter of comity[.]").
Based on the record, however, I cannot conclude that the mandamus standard has been met. For these reasons, I concur.