The local firm
Ethics and the Law
Washington’s pro hac vice rules vary depending on whether the litigation involved is in state or federal court.
Pro hac vice admission in state court is a two-step process—
with both facets governed by Admission and Practice Rule
(APR) 8(b). Local counsel must first file a motion to admit
the out-of-state lawyer with the court concerned. The form is
specified by the rule. The out-of-state lawyer must certify that
the lawyer is a member in good standing of the lawyer’s “home”
jurisdiction and that the lawyer has read the Washington
Rules of Professional Conduct (RPCs). Local counsel must
also certify that he or she is an active WSBA member, will be
responsible for the conduct of the out-of-state lawyer, and
will be present at all proceedings unless excused by the court.
At the same time the motion is submitted to the court, local
counsel must also forward a copy to the WSBA along with a
specific cover sheet and the requisite fee. (Templates for the
motion and cover sheet are available on the WSBA website at
Pro hac vice admission is “one stop” in federal court—but
with unusual geographic twists. Pro hac vice admission is
regulated by Local Court Rule (LCR) 83.1(d) in the Western
District and Local Rule (LR) 83.2(c) in the Eastern District.
Both require that local counsel be a member of the bar of the
court concerned and that the out-of-state lawyer involved is a
member in good standing in the lawyer’s “home” jurisdiction
and that no disciplinary proceedings are pending against that
lawyer. In the Western District, local counsel “must have a
physical office within the geographic boundaries of the West-
ern District of Washington[.]” At least on its face, therefore,
a lawyer officed in Spokane could not be local counsel for a
federal court case in Seattle even if the lawyer is a member of
the Western District bar. In the Eastern District, local counsel
must have “an office in this state.” Again, at least on the face
of the rule, a lawyer officed in Coeur d’Alene could not be local
counsel for a federal court case in Spokane even if the lawyer
is a member of the Eastern District bar. It is possible to ask for
a waiver of the physical office requirement, but the decision is
discretionary with the court concerned.
Like any other motion, pro hac vice applications must be
served on opposing counsel under the applicable state and
federal rules. Although it is a rare occurence, opposing parties
have standing to both oppose pro hac vice motions and to seek
revocation of pro hac status as the functional equivalent to
disqualification. The court in Hallman v. Sturm Ruger & Co.,
Inc., 31 Wn. App. 50, 639 P.2d 805 (1982), discusses state law
on these points and the court in Cole v. U.S. District Court of
the District of Idaho, 366 F.3d 813 (9th Cir. 2004), does the
same for federal courts in the Ninth Circuit.
With any representation, it is important to document he scope of the lawyer’s role as a matter of risk management. With local counsel, two factors can
often sharpen that need even further. First, local counsel today
are often hired for their insights on the particular practices and
personalities in the venue concerned rather than overall responsibility for the case. Second, national counsel most often have
the direct contact with the client and are effectively the lawyers
“calling the shots” in conjunction with the client.
Under Evans v. Steinberg, 40 Wn. App. 585, 699 P.2d 797
(1985), and Mazon v. Krafchick, 158 Wn.2d 440, 144 P.3d 1168
(2006), co-counsel are generally precluded from suing each
other for legal malpractice involving a jointly represented client.
But if an error occurs in a facet of the case that is well beyond
local counsel’s role—or even knowledge—an engagement agreement with the client clearly articulating the local counsel’s role
can provide a practical defense to a claim by the client.
RPC 1. 2(c) allows a lawyer to “limit the scope of the rep-
resentation if the limitation is reasonable under the circum- ©