ICLE Homepage | Other Administrative Orders
November 9, 2006
ADM File No. 2004-08
Proposed Amendment of Rule 15 and
Proposed New Rule 18 of the Rules
Concerning the State Bar of Michigan
On order of the Court, this is to advise that the Court is considering an amendment
of Rule 15 and adoption of new Rule 18 of the Rules Concerning the State Bar of Michigan
as recommended by the State Bar of Michigan. Before determining whether the proposals
should be adopted, changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits of the proposal or
to suggest alternatives. The Court welcomes the views of all. This matter also will be
considered at a public hearing. The notices and agendas for public hearings are posted at
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposal in its present form.
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been deleted.
Bold text indicates new text.
Rule 15. Admission to the Bar
Sec. 1. [Unchanged.]
[Sec. 2. Foreign Attorney; Temporary Permission. Any person who is duly licensed to
practice law in another state or territory, or in the District of Columbia, of the United States
of America, or in any foreign country, may be permitted to engage in the trial of a specific
case in a court or before an administrative tribunal in this State when associated with and on
motion of an active member of the State Bar of Michigan who appears of record in the case.
Such temporary permission may be revoked by the court summarily at any time for
misconduct.
]
Sec. [3]2. [Renumbered but otherwise unchanged.]
Rule 18. Pro Hac Vice Temporary Practice
Sec. 1.Permission to Appear in Pending Litigation before a Court or Agency.
(A) Definitions
(1) An out-of-state lawyer is a person who is not admitted to
practice law in this state but who is admitted in another state or
territory of the United States or the District of Columbia and is not
disbarred or suspended from practice in any jurisdiction.
(2) A client is a person or entity that retained the out-of-state
lawyer for the purpose of performing legal services in this state before
the out-of-state lawyer's performance of those legal services.
(3) An alternative dispute resolution proceeding includes all
types of alternative dispute resolution, including, without limitation,
arbitration or mediation, whether arranged by the parties or otherwise.
(4) "Regular practice" means performing legal services in
more than three cases within a 365- day period.
(5) "Court" means a state court or state agency or tribunal from
which an appeal may be taken to a state court.
(B) Eligibility to Appear. An out-of-state lawyer is eligible to appear
pro hac vice if that lawyer:
(1) lawfully practices solely on behalf of the lawyer's
employer and its commonly owned organizational affiliates; or
(2) neither resides nor regularly practices at an office in this
state; or
(3) resides in this state, but;
(i) lawfully practices from offices in another state, and
(ii) practices no more than temporarily in this state,
whether pursuant to appearance pro hac vice or in other lawful
ways.
(C) Authority of Court or Agency to Permit Appearance by Out-of-
State Lawyer
(1) Court Proceeding. A court of this state may, in its
discretion, permit an eligible out-of-state lawyer to appear pro hac
vice as counsel in a proceeding pending before the court, pursuant to
this rule;
(2) Administrative Agency Proceeding. If practice before an
agency of this State is limited to lawyers, the agency may, using the
same standards and procedures as a Michigan court, pursuant to this
rule, permit an eligible out-of-state lawyer to appear pro hac vice as
counsel in a proceeding pending before the agency;
(3) This rule does not apply to an agency proceeding or an
alternative dispute resolution where nonlawyers are permitted to
represent third parties. The question of whether nonlawyers may
represent clients in agency proceedings or alternative dispute
resolutions is a matter of Michigan and federal law, where applicable,
and is not solely determined by the rules of the particular agency;
(4) This rule applies to all court-annexed ADR proceedings;
(5) This rule does not govern proceedings before a federal
court or agency located in this state unless that body adopts or
incorporates this rule.
(D) Association with a Michigan Lawyer
(1) The out-of-state lawyer shall associate with a Michigan
lawyer and timely inform the Michigan lawyer of all proposed actions
in the proceeding;
(2) Michigan Lawyer's Duties. When an out-of-state lawyer
appears for a client in a proceeding pending in this state, either in the
role of co-counsel of record with the Michigan lawyer, or in an
advisory or consultative role, the Michigan lawyer remains responsible
to the client and responsible for the conduct of the proceeding before
the court or agency. It is the duty of the Michigan lawyer to advise the
client of the Michigan lawyer's independent judgment on proposed
actions in the proceeding if that judgment differs from that of the out-
of-state lawyer.
(E) Application Procedure
(1) Motion and Verified Application. The Michigan lawyer
shall file a motion with the court, moving for the pro hac vice
appearance of the out-of-state lawyer as co-counsel of record with the
Michigan lawyer in the matter. An eligible out-of-state lawyer seeking
to appear pro hac vice in a proceeding pending in this state shall file
a verified application with the court where the litigation is filed and
with the State Bar of Michigan, at the same time as the Michigan
lawyer files the motion with the court. If an application fee is required
by subrule 1(G) of this rule, the fee must accompany the application
filed with the State Bar of Michigan. A copy of the motion and
application shall be served on all parties who have appeared in the case.
The application filed with the State Bar of Michigan shall include
proof of service. Failure to pay the motion fee to the local court and
the application fee to the State Bar of Michigan shall result in denial
of the application. On or after 21 days from the date of service of the
motion and application, the court has the discretion to grant or deny the
application summarily if there is no opposition filed;
(2) Objection to Application. The State Bar of Michigan, or a
party to the proceeding, may file an objection to the motion or seek the
court's imposition of conditions to its being granted. The State Bar of
Michigan or objecting party must file with its objection a verified
pleading containing information establishing a factual basis for the
objection. The State Bar of Michigan or objecting party may seek
denial of the motion or modification of it. If the motion has already
been granted, the State Bar of Michigan or objecting party may move
that the pro hac vice permission be withdrawn;
(3) Standard for Pro Hac Vice Permission. The courts and
agencies of this state have discretion to grant applications for
permission to appear pro hac vice to an out-of-state lawyer. An
application ordinarily should be granted unless the court or agency
finds any of the following:
(a) the permission may be detrimental to the prompt,
fair and efficient administration of justice;
(b) the permission may be detrimental to legitimate
interests of parties to the proceedings other than a client the
applicant proposes to represent;
(c) one or more of the clients the applicant proposes to
represent may be at risk of receiving inadequate representation
and cannot adequately appreciate that risk; or
(d) the applicant has engaged in regular practice in this
state.
(4) Out-of-state lawyers who have been disciplined or held in
contempt by reason of misconduct committed while engaged in
representation that is permitted by this rule may thereafter be denied
permission to appear pro hac vice under this rule.
(5) No lawyer is authorized to appear pursuant to this rule if the
lawyer:
(a) is disbarred or suspended from practice in any
jurisdiction;
(b) is a member of the Michigan Bar, but ineligible to
practice law;
(c) has failed to provide notice to the State Bar of
Michigan, or pay the filing fee as required by this rule; or
(d) is engaged in "regular practice" in Michigan, as
"regular practice" is defined elsewhere in this rule.
(6) Revocation of Permission. Permission to appear as
counsel pro hac vice in a proceeding, once granted, may be revoked
for any of the reasons listed in subrules 1(E)(3) or 1(E)(5) of this rule.
(F) Application
(1) Required Information. An applicant shall submit a verified
application containing the following:
(a) The applicant's residence and business addresses
and business telephone number;
(b) The name, address and telephone number of each
client sought to be represented and the caption of the case;
(c) The state or states in which the applicant is admitted
to practice law; the applicant's attorney identification number
in each state; the courts before which the applicant has been
admitted to practice; and the respective period or periods of
admission;
(d) The states to which the applicant has applied for
admission within the last five years and the result of each
application;
(e) Whether the applicant has been denied permission
to appear pro hac vice in Michigan, had pro hac vice status
withdrawn in Michigan, or otherwise been formally disciplined
or sanctioned by any court in Michigan. The applicant should
specify the nature of the allegations; the name of the authority
bringing such proceedings; the caption of the proceedings, the
date filed, and the nature of the findings made and action taken
in connection with those proceedings;
(f) Whether any formal, written disciplinary proceeding
has been brought against the applicant by a disciplinary authority
in any other jurisdiction within the last 5 years and, as to each
proceeding:
(i) the nature of the allegations;
(ii) the name of the person or authority bringing
such proceedings;
(iii) the date the proceedings were initiated and
finally concluded;
(iv) the caption of the proceedings; and
(v) the factual findings and legal conclusions
made, and discipline imposed, if any, in connection with
those proceedings;
(g) Whether the applicant has been held formally in
contempt or otherwise sanctioned by any court in a written
order in the last 5 years for disobedience to its rules or orders,
and, as to each instance:
(i) the nature of the allegations;
(ii) the name of the court;
(iii) the date of the contempt order or sanction;
(iv) the caption of the proceedings; and
(v) the substance of the court's rulings and a
copy of the written order or transcript of the oral
rulings;
(h) The name and address of each court or agency and
a full identification of each proceeding in which the applicant
has filed an application to appear pro hac vice in Michigan
within the preceding 2 years, including the date of each
application and whether the motion to appear pro hac vice was
granted;
(i) An averment as to the applicant's familiarity with
the Michigan Rules of Professional Conduct, Professional
Disciplinary Proceedings Rules, local rules and court
procedures of the court or agency before which the applicant
seeks to practice;
(j) The name, business address and telephone number,
and bar number of an active member in good standing of the
State Bar of Michigan moving for the applicant's pro hac vice
appearance. The bar member shall appear as counsel of record
together with the out-of-state lawyer;
(k) Any special experience, expertise, or other factor
deemed to make it particularly desirable that the applicant be
permitted to represent a client the applicant proposes to
represent in the particular cause; and
(l) Any other matter supporting permission to appear
pro hac vice that the applicant wishes to include.
(G) Application Fee
(1) The first application to appear pro hac vice filed with the
State Bar of Michigan by an applicant within a 365-day period must be
accompanied by a nonrefundable fee in an amount equal to the dues
paid by an active member of the State Bar of Michigan plus the Client
Protection Fund Assessment. No application fee is required for a
second or third application filed within a 365-day period.
(2) Exemption for Pro Bono Representation. An applicant
shall not be required to pay the application fee established by subrule
1(E)(1) of this rule if the applicant will not charge an attorney fee to
a client and is:
(a) employed or associated with a pro bono project or
nonprofit legal services organization in a civil case involving a
client of such programs; or
(b) involved in a criminal case or a habeas proceeding
for an indigent defendant.
(H) Authority of the Attorney Grievance Commission and Attorney
Discipline Board and Court: Application of Ethical Rules, Discipline,
Contempt and Sanctions
(1) Authority over Out-of-State Lawyer and Applicant.
(a) An out-of-state lawyer submits to the authority of
the Michigan courts, the Attorney Grievance Commission and
the Attorney Discipline Board for the out-of-state lawyer's
conduct relating in any way to the proceeding in which the out-
of-state lawyer seeks to appear, whether the conduct takes place
within Michigan or outside Michigan. An applicant or out-of-
state lawyer who has been granted permission to appear pro hac
vice in these rules may be disciplined in the same manner as a
Michigan lawyer;
(b) In handling matters related to pro hac vice
appearance, Michigan courts, the Attorney Grievance
Commission and the Attorney Discipline Board may rely,
without limitation, on the Michigan Court Rules, the Michigan
Rules of Professional Conduct, the Professional Disciplinary
Proceedings Rules, contempt and sanctions orders, local court
rules and court policies and procedures.
(2) An applicant shall become familiar with the Michigan Rules
of Professional Conduct, the Professional Disciplinary Proceedings
Rules, local court rules, and policies and procedures of the court in
which the applicant seeks to practice.
Sec. 2. Out-of-State Proceedings, Potential Michigan and Out-of-State
Proceedings, and Alternative Dispute Resolution.
(A) Michigan Ancillary Proceeding Related to Pending Out-of-State
Proceeding. In connection with a proceeding pending outside this state, an
out-of-state lawyer admitted to appear in that proceeding may render legal
services regarding the proceeding in Michigan.
(B) Consultation by Out-of-State Lawyer.
(1) An out-of-state lawyer may consult in this state with a
Michigan lawyer concerning the Michigan lawyer's client's pending or
potential Michigan proceeding in this state;
(2) At the request of a Michigan resident who is contemplating
filing a proceeding or is involved in any pending proceeding, an out-of-
state lawyer may consult with the Michigan resident about retaining the
out-of-state lawyer in connection with the proceeding.
(C) Preparation for Michigan Proceeding. On behalf of any client, the
out-of-state lawyer may render legal services in this state in preparation for
a potential Michigan proceeding, provided that the out-of-state lawyer
reasonably believes himself or herself to be eligible for admission pro hac
vice in Michigan.
(D) Preparation for Out-of-State Proceeding. In connection with a
potential proceeding to be filed outside this state, an out-of-state lawyer may
render legal services in this state for an existing or potential Michigan client,
provided that the out-of-state lawyer is admitted or reasonably believes
himself or herself eligible for admission generally, or to appear or to be
admitted pro hac vice, in the other jurisdiction.
(E) Services Rendered Outside this State for Michigan Client. An out-
of-state lawyer may render legal services while the lawyer is physically
outside Michigan when requested by a Michigan client in connection with a
potential or pending proceeding filed in or outside this state. An out-of-state
lawyer must immediately seek permission to appear pro hac vice when
commencing the rendering of legal services in connection with a case which
has been filed in Michigan, regardless of whether the out-of-state lawyer
anticipates having to physically appear in Michigan.
(F) Alternative Dispute Resolution. An out-of-state lawyer may
render legal services in this state to prepare for any Alternative Dispute
Resolution procedure.
Sec. 3. Scope.
(A) No Solicitation. An out-of-state lawyer rendering services in this
state in compliance with this rule, or here for other reasons, is not authorized
by anything in this rule to hold out to the public or otherwise represent that the
lawyer is admitted to practice in this jurisdiction. Nothing in this rule
authorizes out-of-state lawyers to solicit, advertise, or otherwise hold
themselves out in publications as available to assist in litigation in this state.
(B) Temporary Practice. An out-of-state lawyer is only eligible for
permission to appear pro hac vice or to practice in another lawful way on a
temporary basis. For purposes of this rule, temporary practice means
performing legal services in no more than three separate cases within a 365-
day period. This limitation does not apply to an out-of-state attorney who has
filed an application for admission to the State Bar of Michigan while the out-
of-state attorney's application is pending.
(C) Authorized Services. It is not a violation of this rule to provide
services to a client in this state by an out of state lawyer if pro hac vice
permission is ultimately denied or a proceeding is not filed, provided the
attorney reasonably expected to be admitted pro hac vice.
Staff Comment: The State Bar of Michigan Representative Assembly has
endorsed in concept this proposal to adopt amendments of the Rules Concerning the State
Bar of Michigan. Proposed new Rule 18 would establish the rules regarding pro hac vice
appearance by attorneys in Michigan and would replace Section 2 of current Rule 15. This
proposal is being published for comment exactly as it was submitted to the Court by the
State Bar of Michigan. It has not been amended by the Court before publication.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State
Court Administrator so that they can make the notifications specified in MCR 1.201.
Comments on these proposals may be sent to the Supreme Court Clerk in writing or
electronically by March 1, 2007, at P.O. Box 30052, Lansing, MI 48909, or
MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2004-
08. Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.