UHY LLP v. Master–Halco, Inc. et al. (2014)

Memorandum of Decision in Re Application to Appear Pro Hac Vice, No. 167

PROCEDURAL HISTORY AND FACTS

This vexatious litigation action commenced in 2010.   On October 5, 2012, the plaintiffs UHY, LLP, Joseph Natarelli, and Robert Mercado ¹ filed an application for admission pro hac vice of attorney Thomas McCormick, a member of the bar of the state of Vermont, accompanied by the affidavit of Attorney McCormick.   In the affidavit, Attorney McCormick states that (1) he has a longstanding association with plaintiffs' counsel and that he and the plaintiffs are mutually acquainted;  (2) the plaintiffs have requested that he serve as their counsel in this case;  and (3) owing to three decades of trial experience and his efforts to acquaint himself with the present matter, he is knowledgeable as to the facts and issues involved.   On October 17, 2012, the defendants Halloran & Sage, LLP, and George Royster ² filed an objection to the application accompanied by several exhibits.³  On January 2, 2014, the plaintiffs replied to the objection.   The matter was heard at short calendar on January 6, 2014.

DISCUSSION

“The decision to grant or deny an application to appear pro hac vice rests within the sound discretion of the court.”  Enquire Printing and Publishing Co. v. O'Reilly, 193 Conn. 370, 373, 477 A.2d 648 (1984).  Practice Book § 2–16 provides in relevant part:  “An attorney who is in good standing at the bar of another state ․ may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state;  provided, however, that (1) such application shall be accompanied by the affidavit of the applicant (a) certifying whether such applicant has a grievance pending against him or her in any other jurisdiction, has ever been reprimanded, suspended, placed on inactive status, disbarred, or otherwise disciplined, or has ever resigned from the practice of law and, if so, setting forth the circumstances concerning such action, (b) certifying that the applicant has paid the client security fund fee due for the calendar year in which the application has been made, (c) designating the chief clerk of the superior court for the judicial district in which the attorney will be appearing as his or her agent upon whom process and service of notice may be served, (d) agreeing to register with the statewide grievance committee in accordance with the provisions of this chapter while appearing in the matter in this state and for two years after the completion of the matter in which the attorney appeared, and to notify the statewide grievance committee of the expiration of the two year period, and (e) identifying the number of cases in which the attorney has appeared pro hac vice in the superior court of this state since the attorney first appeared pro hac vice in this state and (2) a member of the bar of this state must be present at all proceedings and must sign all pleadings, briefs and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded.”

“Although the court receiving an application for admission pro hac vice has broad discretionary power, the exercise of that power is not unfettered.”   Enquire Printing and Publishing Co. v. O'Reilly, supra, 193 Conn. 374.  “In this period of greater mobility among members of the bar and public, a court should reluctantly deny an application to appear pro hac vice.   A litigant's request to be represented by counsel of his choice, when freely made, should be respected by the court, unless some legitimate state interest is thwarted by admission of the out-of-state attorney.”  (Internal quotation marks omitted.)   Herrmann v. Summer Plaza Corp., 201 Conn. 263, 269, 513 A.2d 1211 (1986).

Before proceeding to the defendants' objection to the application, it is noted that the affidavit accompanying the application complies with the Practice Book with the following exceptions:  (1) it does not certify payment of the client security fund fee;  and (2) it does not designate the chief clerk as Attorney McCormick's agent for service of process.⁴

The defendants object to the application on the ground that the statements contained in the application and supporting affidavit are unsupported conclusions and “none of the elements of good cause exist.”   Specifically, good cause does not exist because (1) the plaintiffs do not have a long-standing attorney-client relationship with Attorney McCormick;  (2) Attorney McCormick has not acquired specialized skill or knowledge;  and (3) the plaintiffs have already secured Connecticut counsel.   With respect to the claimed lack of a long-standing attorney-client relationship, the defendants assert that Natarelli first met Attorney McCormick on the day before his deposition, after the present case had been pending for more than two years.   As to Attorney McCormick's skills, the defendants posit that the plaintiffs have failed to show either that Attorney McCormick has specialized experience in bringing vexatious litigation claims or that plaintiffs' counsel lacks experience in this area.

“Good cause ․ shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney.   Such facts may include a showing that by reason of a long-standing attorney-client relationship predating the cause of action or subject matter of the litigation at bar, the attorney has acquired a specialized skill or knowledge with respect to the client's affairs important to the trial of the cause or that the litigant is unable to secure the services of Connecticut counsel.”  (Emphasis added.)  Practice Book § 2–16.   The facts by which an applicant may demonstrate good cause under Practice Book § 2–16 “are not exclusive and [allow] the court to determine good cause based on additional evidence.”   Zogaj v. Kaczmarek, Superior Court, judicial district of Waterbury, Docket No. CV–07–5004755–S (November 27, 2007, Agati, J.) (44 Conn. L. Rptr. 565, 566) (granting application where plaintiffs and out-of-state counsel had no pre-existing attorney client relationship, and where out-of-state counsel specialized in type of claim at issue and admission would not violate any legitimate state interest);  see also Silverman v. St. Joseph's Hospital, 168 Conn. 160, 179, 363 A.2d 22 (1974).

In the present case, facts indicating good cause may be found in the efforts of plaintiffs' counsel to secure in-state co-counsel before seeking Attorney McCormick's admission.   Plaintiffs' counsel, who appears in this case in his capacity as a sole practitioner,⁵ approached a number of Connecticut law firms to associate with him in representing the plaintiffs.   Each declined to become involved in this vexatious litigation action because of a preexisting relationship with the defendants, a large Connecticut law firm and one of its partners, both of whom are represented by another of the state's largest firms.⁶  Although Attorney McCormick does not have a long-standing relationship with the plaintiffs, he is well acquainted with the voluminous file in the case underlying the present matter, and he has indicated that he is ready and willing to assist plaintiffs' counsel where in-state attorneys are not.   While “[o]rdinarily, the mere fact that a client desires out-of-state counsel to represent him in the courts of this state is not sufficient reason, in and of itself, to warrant granting such permission”;  (internal quotation marks omitted) Herrmann v. Summer Plaza Corp., supra, 201 Conn. 267;  the particular circumstances of this case have prompted the plaintiffs to seek farther afield for representation in this matter.   Accordingly, it is submitted that the plaintiffs have demonstrated good cause for the admission of Attorney McCormick pursuant to Practice Book § 2–16.

Additionally, there is no indication that a legitimate state interest exists to override the plaintiffs' right to the counsel of their own choosing.   Connecticut courts have identified two legitimate state interests that support the denial of an application if they would be thwarted by the out-of-state attorney's admission:  (1) avoiding ethical problems that the out-of-state attorney's appearance would cause;  and (2) the court's control of its docket.  Yale Literary Magazine v. Yale University, 4 Conn.App. 592, 605, 496 A.2d 201 (1985), aff'd, 202 Conn. 672, 522 A.2d 818 (1987).   The defendants have not advanced any state interest that would thwarted by Attorney McCormick's admission, nor does it appear that any such interest exists.

CONCLUSION

For the foregoing reasons, the plaintiffs have demonstrated good cause for Attorney McCormick's admission, and no legitimate state interest would be thwarted by his admission.   The application or motion for admission is granted on the condition that the plaintiffs file an affidavit that complies with the Practice Book by certifying the following:  (1) that the client security fund fee has been paid;  (2) that the chief clerk is appointed as Attorney McCormick's agent for service;  (3) that Attorney McCormick has never been “otherwise disciplined”;  and (4) that Attorney McCormick will inform the statewide grievance committee when the two-year period following the completion of the present action ends.

It is so ordered,

Nazzaro, J.

FOOTNOTES

FN1. UHY Advisors, Inc., and UHY Advisors N.E., LLC, are also plaintiffs in this action but did not participate in the filing of the present application.   For convenience, all references to the plaintiffs in this memorandum are to UHY, LLP, Natarelli, and Mercado..  FN1. UHY Advisors, Inc., and UHY Advisors N.E., LLC, are also plaintiffs in this action but did not participate in the filing of the present application.   For convenience, all references to the plaintiffs in this memorandum are to UHY, LLP, Natarelli, and Mercado.

FN2. Master–Halco, Inc., was also named as a defendant in this action but did not participate in the objection to the present application.   For convenience, all references to the defendants in this memorandum are to Halloran & Sage, LLP, and Royster..  FN2. Master–Halco, Inc., was also named as a defendant in this action but did not participate in the objection to the present application.   For convenience, all references to the defendants in this memorandum are to Halloran & Sage, LLP, and Royster.

FN3. The exhibits include the following:  (1) plaintiffs' counsel's appearance in United States District Court for the District of Connecticut in Master–Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, the action underlying the present vexatious litigation claim;  (2) plaintiffs' counsel's biography;  (3) the summons in the present action;  (4) plaintiffs' counsel's profile on the website LinkedIn;  (5) a record indicating that plaintiffs' counsel has no public record of discipline;  (6) excerpts of the transcript of Natarelli's deposition testimony;  and (7) biographical profiles of the attorneys of McCormick, Fitzpatrick, Kasper & Burchard PC..  FN3. The exhibits include the following:  (1) plaintiffs' counsel's appearance in United States District Court for the District of Connecticut in Master–Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, the action underlying the present vexatious litigation claim;  (2) plaintiffs' counsel's biography;  (3) the summons in the present action;  (4) plaintiffs' counsel's profile on the website LinkedIn;  (5) a record indicating that plaintiffs' counsel has no public record of discipline;  (6) excerpts of the transcript of Natarelli's deposition testimony;  and (7) biographical profiles of the attorneys of McCormick, Fitzpatrick, Kasper & Burchard PC.

FN4. Additionally, the affidavit makes two minor omissions:  (1) while it states that Attorney McCormick has never been reprimanded, suspended or disbarred and has never resigned from the practice of law, it does not address whether he has ever been “otherwise disciplined”;  and (2) it does not address whether Attorney McCormick will notify the statewide grievance committee of the end of the two-year period following the completion of this matter..  FN4. Additionally, the affidavit makes two minor omissions:  (1) while it states that Attorney McCormick has never been reprimanded, suspended or disbarred and has never resigned from the practice of law, it does not address whether he has ever been “otherwise disciplined”;  and (2) it does not address whether Attorney McCormick will notify the statewide grievance committee of the end of the two-year period following the completion of this matter.

FN5. Plaintiffs' counsel is affiliated with the firm Brenner Saltzman & Waltman, which has not been and will not be involved in the case..  FN5. Plaintiffs' counsel is affiliated with the firm Brenner Saltzman & Waltman, which has not been and will not be involved in the case.

FN6. Another defendant in this case is represented by a third large Connecticut firm..  FN6. Another defendant in this case is represented by a third large Connecticut firm.

Nazzaro, John J., J.