Delaware Trial Handbook § 1:8. ADMISSION PRO HAC VICE

Apart from attorneys licensed to practice in Delaware and individuals representing themselves, only attorneys who are licensed to practice in another jurisdiction and have been admitted to practice in Delaware pro hac vice (“for this one particular purpose”) may participate as counsel in Delaware court proceedings, including depositions.83

Admission may occur upon written motion by a member of the Delaware Bar who maintains an office in Delaware for the practice of law.83.1 The motion must be filed no later than the first appearance of the attorney who seeks admission pro hac vice before the Court, Clerk of the Court or Prothonotary.84 The motion for admission pro hac vice must be accompanied by a check for $300, to be deposited in the Supreme Court fund for the purpose of the governance of the Bar of its Court.85 If the case in which the pro hac admission was granted continues into a subsequent calendar year after the year of admission, the $300 assessment is deemed to be an annual assessment to be renewed and payable on January 1 of the subsequent year.85.1  Copies of the pro hac vice application are forwarded by the court to the Court administrator of the Delaware Supreme Court, who in turn forwards copies to Disciplinary Counsel, who is responsible for contacting Delaware counsel if the information contained in the application is incomplete.85.2

A motion for admission pro hac vice must include a certification of the attorney seeking admission that he or she: (i) is a member in good standing of the bar of another state; (ii) agrees to be bound by the Delaware Lawyers’ Rules of Professional Conduct; (iii) shall be bound by all court rules; (iv) has reviewed the Delaware State  Bar Association’s Statement of Principles of Lawyer Conduct; and (v) has consented to the appointment of the Register in Chancery or Prothonotary as agent upon whom service of process may be made for all actions, including disciplinary actions that may arise out of the practice of law in Delaware. The applying attorney must also disclose all states and other jurisdictions in which he or she has at any time been admitted generally and the number of actions in any Delaware court of record in which the moving attorney has appeared in the preceding twelve months. The applying attorney must also reveal whether he or she has been disbarred or suspended or is the object of pending disciplinary proceedings in any jurisdiction where the attorney has at any time been admitted generally.86

The Delaware lawyer filing the motion for admission pro hac vice of an attorney not a member of the Delaware Bar must certify that he or she finds the applicant to be a reputable and competent attorney and is in a position to recommend the applicant’s admission.87

The court rule governing admission pro hac vice does not call for any inquiry into the relationship between out-of-state counsel and the party he or she will be representing, or any inquiry into out-of-state counsel’s degree of expertise in the issues in the case. It does not require any showing of any need for the services of out-of-state counsel. Inquiry into such matters is beyond the scope of the court rule and is improper.87.1

Admission pro hac vice is discretionary with the court, although denial of a motion for admission pro hac vice should occur only when there is a clear showing that denial is warranted.88 In exercising its discretion, a court should consider, in addition to the information provided in the motion, whether, in light of the nature and extent of the movant’s practice in the State of Delaware, the movant is, in effect, practicing as a Delaware lawyer without complying with the requirements for admission to the Delaware Bar. In considering this point, a court may weigh the number of admissions to practice sought and/or obtained by the moving attorney from Delaware courts, whether the attorney maintains an office in Delaware despite not being admitted to practice in Delaware and any other relevant facts.89

The admission of counsel pro hac vice does not relieve Delaware counsel of its responsibilities in the matter for which the out-of-state attorney was admitted.90 Delaware counsel must attend all court proceedings, excluding depositions, in which the out-of-state attorney is acting unless excused by the court for good cause shown.91 The Delaware attorney must sign or receive service of all notices, orders, pleadings or other proper filings in the action.92  The obligation to sign pleadings imposes an obligation upon Delaware counsel to review any materials to be submitted to the court and to determine after reasonable inquiry that the submission is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.93

The grant of pro hac vice status is subject to revocation if the court determines after a hearing or other meaningful opportunity to respond that continued pro hac vice status is inappropriate or inadvisable.94 The test is whether there is clear and convincing evidence that the behavior of the attorney in question will affect the fairness of the proceedings in the case before it.94.1 One court exercised its discretion to revoke an attorney’s pro hac vice status where the court found that the attorney failed to restrain his client from engaging in abusive, threatening and vulgar language during a deposition, and engaged in improper coaching of his client during the deposition.94.2  On the other hand, use of profanity, acrimony, derisive gibes or sarcasm is not per se grounds for revocation of pro hac status, particularly if they were not part of court proceedings and the court receives assurances that they will not continue.94.3

83. Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 55-56 (Del. 1994); Hoechst Celanese Corp. v. National Union Fire Ins. Co., 623 A.2d 1099, 1114 (Del. Super. 1991).

83.1. Supr. Ct. R. 71; State v. Joseph, Nos. 0107023079, 0108001802, Clark, J. (Del. Comm. Pls. Oct. 31, 2001) (out-of-state attorney may not file motion for admission pro hac vice by himself).

84. Ch. Ct. R. 170(b),(f); Super. Ct. Civ. R. 90.1(a), (e); Comm. Pls. Ct. Civ. R. 111(a), (e); Comm. Pls. Ct. Cr. R. 62(a), (e); Fam. Ct. Civ. R. 90(b)(1), (5); Fam. Ct. Cr. R. 61(b)(1), (5); J.P. Ct. Civ. R. 26(f).

85. Ch. Ct. R. 170(c); Super. Ct. Civ. R. 90.1(b); Super. Ct. Cr. R. 63(b); Comm. Pls. Ct. Civ. R. 90.1(b); Fam. Ct. Civ. R. 90(b)(2); Fam. Ct. Cr. R. 61(b)(2); J.P. Ct. Civ. R. 26(b).

85.1. Supr. Ct. R. 71(b); Super. Ct. Civ. R. 90.1(b)(vi).

85.2. Supr. Ct. R. 71(h); Super. Ct. Civ. R. 90.1(i).

86. Ch. Ct. R. 170(c); Super. Ct. Civ. R. 90.1(b); Super. Ct. Cr. R. 63(b); Comm. Pls. Ct. Civ. R. 90.1(b); Comm. Pls. Ct. Cr. R. 62(b); Fam. Ct. Civ. R. 90(b)(2); Fam. Ct. Cr. R. 61(b)(2); J.P. Ct. Civ. R. 26(b).

87. Ch. Ct. R. 170(h); Super. Ct. Civ. R. 90.1(h); Super. Ct. Cr. R. 63(b);Comm. Pls. Ct. Civ. R. 90.1(h); Comm. Pls. Ct. Cr. R. 62(g); Fam. Ct. Civ. R. 90(b)(7); Fam. Ct. Cr. R. 61(b)(7); J.P. Ct. Civ. R. 26(h). See also Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 55-56 (Del. 1994); In re Elzufon, C.A. No. 90M-MY-3, slip op. 16-17, Toliver, J. (Del. Super. May 7, 1991) (moving Delaware attorney has an affirmative duty to investigate the character and fitness of the individual whose admission pro hac vice is being moved).

87.1. Certain Underwriters at Lloyd’s London v. E.I. duPont de Nemours and Co., C.A. No. 06C-06-185 (JTV), slip op. at 2-3, Vaughn, J. (Del Super. July 16, 2007).

88. Certain Underwriters at Lloyd’s London v. E.I. duPont de Nemours and Co., C.A. No. 06C-06-185 (JTV), slip op. at 3, Vaughn, J. (Del Super. July 16, 2007); Ch. Ct. R. 170(b); Super. Ct. Civ.R. 90.1(a); Super. Ct. Cr. R. 63(g); Comm. Pls. Ct. Civ. R. 90.1(a); Comm. Pls. Ct. Cr. R. 62(a); Fam. Ct. Civ. R. 90(b)(1); Fam. Ct. Cr. R. 61(b)(l); J.P. Ct. Civ. R. 26(g).

89. Ch. Ct. R. 170(g); Super. Ct. Civ. R. 90.1(g); Super. Ct. Cr. R. 63(g); Comm. Pls. Ct. Civ. R. 90.1(g); Comm. Pls. Ct. Cr. R. 62(f); Fam. Ct. Civ. R. 90(b)(6); Fam. Ct. Cr. R. 61(b)(6); J.P. Ct. Civ. R. 26(g).

90. State Line Ventures, LLC v. RBS Citizens, N.A., C.A. No. 4705-VCL, Laster, V.C. (Del. Ch. Dec. 2, 2009). See also Ch. Ct. R. 170(b); Super. Ct. Civ. R. 90.1(a); Super. Ct. Cr. R. 63(d); Comm. Pls. Ct. Civ. R. 90.1(a); Comm. Pls. Ct. Cr. R. 62(c); Fam. Ct. Civ. R. 90(b)(1); Fam. Ct. Cr. R. 61(a); J.P. Ct. Civ. R. 26(a).

91. Ch. Ct. R. 170(d); Super. Ct. Civ. R. 90.1(c); Super. Ct. Cr. R. 63(b); Comm. Pls. Ct. Civ. R. 111(c); Comm. Pls. Ct. Cr. R. 62(c); Fam. Ct. Civ. R. 90(b)(3); Fam. Ct. Cr. R. 61(b)(3); J.P. Ct. Civ. R. 26(d).

92. Ch. Ct. R. 170(d); Super. Ct. Civ. R. 90.1(a); Super. Ct. Cr. R. 63(d); Comm. Pls. Ct. Civ. R. 90.1(d); Comm. Pls. Ct. Cr. R.62(c); Fam. Ct. Civ. R. 90(b)(3); Fam. Ct. Cr. R. 61(c); J.P. Ct. Civ. R. 26(d).

93. Ch. Ct. R. 11; Super. Ct. Civ. R. 11; Comm. Pls. Ct. Civ. R. 11; Fam. Ct. Civ. R. 11.

94. Ch. Ct. R. 170(e); Super. Ct. Civ. R. 90.1(e); Super. Ct. Cr. R. 63(e); Comm. Pls. Ct. Civ. R. 90.1(e); Comm. Pls. Ct. Cr. R. 62(d); Fam. Ct. Civ. R. 90(b)(4); Fam. Ct. Cr. R. 61(b)(4); J.P. Ct. Civ. R. 26. See also National Union Fire Ins. Co. v. Stauffer Chemical Co., C.A. No. 87C-SE-11, Poppiti, J. (Del. Super. Sept. 10, 1990), app. dismissed mem., 586 A.2d 1202 (Del. 1991).

94.1. Crowhorn v. Nationwide Mut. Ins. Co., C.A. No. 00C-06-101 WLW, slip op. at 9, Witham, J. (Del. Super. May 6, 2002).

94.2. State v. Mumford, 731 A.2d 831 (Del. Super. 1999).

94.3. Crowhorn v. Nationwide Mut. Ins. Co., C.A. No. 00C-06-101 WLW, slip op. at 9-11, Witham, J. (Del. Super. May 6, 2002).

© 2010 David L. Finger