The Risk Manager, Winter 2006

In Brozowski v. Johnson (Ky. Ct. App. No. 2004-CA-000256-MR, 11/18/05) an Illinois lawyer filed a medical malpractice complaint for the Brozowskis in the McCracken Circuit Court. That same day a Kentucky lawyer filed a motion pursuant to SCR. 3.030(2) for the Illinois lawyer’s admission pro hac vice, but did not include a proposed order for the motion as required by local rules. This led to a dismissal of the case with prejudice. On appeal the Kentucky Court of Appeals made it clear that strict compliance with SCR. 3.030(2) is required:

“The Brozowskis nevertheless urge that their substantial compliance with SCR 3.030(2) compels a different conclusion. We disagree.

SCR 3.030(2) provides as follows:

A person admitted to practice in another state, but not this state, shall be permitted to practice a case in this state only if he subjects himself or herself to the jurisdiction and rules of the court governing professional conduct, pays a per case fee of $100.00 to the Kentucky Bar Association and engages a member of the association as co-counsel, whose presence shall be necessary at all trials and at other times when required by the court. No motion for practice in any state court in this jurisdiction shall be granted without submission to the admitting court of a certification from the Kentucky Bar Association of receipt of this fee.

Moreover, the McCracken Circuit Court's local rule 5G provides as follows:

Except for motions for summary judgment, no motion shall be filed without the tender of a proposed order in conformity therewith, excluding such orders that require findings of fact and conclusions of law. Such orders shall be by separate styled instruments and not on the same page as the motion in sufficient number for all parties.

Both of these rules use the mandatory directive "shall", and there is no indication that the drafters intended anything less than absolute compliance. Thus, the Brozowskis' substantial compliance is inadequate to fulfill the mandates of these rules.”(footnotes omitted)

The risk management teaching points of Brozowski are that to avoid negligence when moving for the admission pro hac vice of an out-of-state lawyer a Kentucky lawyer must assure that:

  • The out-of-state lawyer is a member in good standing of a state bar;
  • The KBA fee is paid;
  • A certification is submitted to the admitting court that the KBA fee, in fact, has been paid; and
  • There is compliance with all local rules applicable to the pro hac vice motion.

In our Winter 2005 newsletter we offered this additional advice in risk managing local counsel arrangements with out-of-state lawyers:

  • Confirm that the out-of-state lawyer has malpractice insurance and in what amount. Be sure that you are not the deep pockets in the case. Note that there is the anomaly that a Kentucky co-counsel practicing in a limited liability form of practice is required to have insurance, while the out-of-state lawyer may have no similar requirement (SCR 3.024). Check it out.
  • Be sure that the out-of-state lawyer is aware of the new per case fee requirement of $100.
  • Document thoroughly with a letter of engagement signed by the out-of-state lawyer and the client exactly what the scope and limits of your engagement are and how you will meet your co-counsel duties.
  • Throughout the representation document telephone calls, meetings with the out-of-state lawyer, and all other aspects of co-counsel activities on behalf of the client.
  • Be sure that fee sharing arrangements comply with Kentucky Rule of Professional Conduct 1.5. (e). If you trip over this rule, you could be found to be jointly responsible for the matter in spite of efforts to limit the scope of the representation.