In order to unburden myself from expectations that I would do a top ten professional responsibility stories column every year, I will pass on doing so this year in favor of the following.

Foreign Lawyer Administrative Agency Practice

On October 18, 2010, Kevin Smith, the Clerk of the Supreme Court, sent a letter to most—perhaps all—of the heads of executive branch administrative agencies, explaining that administrative law judges (or the agencies, for that matter) do not have authority to grant temporary admission to foreign lawyers to practice before those agencies. For those of you inclined to wear Roman togas, you might call this pro hac vice admission.  Mr. Smith’s letter points out that “admission to practice law in Indiana is exclusively the province of the Supreme Court,” citing Ind. Const. art. 7, § 4.  It further observed that the Supreme Court has made a limited delegation of that authority through Indiana Admission and Discipline Rule 3(2), which allows for only the Supreme Court, the Court of Appeals, the Tax Court or Indiana trial courts, but not administrative agencies, to grant temporary admission to foreign lawyers.

Mr. Smith went on to propose that foreign lawyers who wish to practice before administrative agencies comply with the temporary admission procedures of Admission and Discipline Rule 3(2). This would entail paying an initial temporary admission fee to the Clerk of the Supreme Court, then petitioning a trial court in the county where the agency is located for temporary admission.  However, on January 21, 2011, Mr. Smith sent a follow-up letter to agency heads advising them that the Supreme Court had since conferred on the matter and determined that petitions to appear temporarily in administrative agency proceedings should not be filed in the trial courts, but should be filed directly with the Indiana Supreme Court.  Mr. Smith noted that this was an interim solution until the matter is more fully addressed by rule amendment.

I have previously written about the procedures for temporary admission of foreign lawyers. See, Lundberg, Taking the Vice Out of Pro Hac Vice: Temporary Admission and Local Counsel, Vol. 50, No. 3 Res Gestae 26 (October 2006).  Caveat: there have been some amendments to Admission and Discipline Rule 3 since that article was written.  Seeking temporary admission to practice before an administrative agency must comply with the same procedures and requirements as when foreign lawyers practice before courts, including the active involvement of Indiana co-counsel.

An Interim Solution

The Smith letters propose use of the procedure in Admission and Discipline Rule 3(2), by seeking Supreme Court authority to appear before an agency, but it is a somewhat awkward solution because that rule does not currently contemplate such use. It describes a process for obtaining temporary admission by a trial or appellate court, and only for proceedings before that court.

Imperfect as it might be, this interim solution is the best available under the circumstances, since I am convinced that Mr. Smith was correct in the first instance to have pointed out the constitutional concerns that arise when an executive branch agency exercises authority that is allocated to the judicial branch by the state constitution.

I recall from my days at the Disciplinary Commission that there seemed to be diverse practices among state administrative agencies when it came to allowing foreign lawyers to practice before them. Some agencies granted temporary admission on their own or simply tolerated the practice of foreign lawyers without any formalities.  The problem with this approach was that it subverted the Supreme Court’s interest in having a centralized registry of all foreign lawyers engaged in the temporary practice of law in Indiana.  Of more substance, in doing so, executive branch agencies arguably assumed the Supreme Court’s constitutionally based role as determiner of who can and cannot practice law in Indiana.

Constitutional Concerns

There is not a serious basis for disputing that the Supreme Court’s constitutional jurisdiction over admission to practice law extends to regulating who can practice law before executive branch agencies. It has not hesitated to exercise jurisdiction in the past over questions about the unauthorized practice of law before administrative agencies. See State ex rel. Indiana State Bar Association v. Miller, 770 N.E.2d 328 (Ind. 2002) (Court exercised jurisdiction over practice before the State Board of Tax Commissioners; some lay representation permitted, some lay representation treated as unauthorized practice of law); State ex rel. Pearson v. Gould, 437 N.E.2d 41 (Ind. 1982) (Court exercised jurisdiction over practice before the State Employees’ Appeals Commission; non-lawyer representation not unauthorized practice of law).  (One assumes, but it is not a foregone conclusion, that a foreign lawyer could participate in an Indiana administrative proceeding without temporary Indiana bar admission to the extent that the same representation could be undertaken by a non-lawyer.)

Given this recent attention to the constitutional limits on administrative agency power to authorize the practice of law, without an interim solution, foreign lawyers would effectively stymied in their efforts to assist their clients in proceedings before ALJs. Now, we have a solution and a uniform one, at that, to serve as a bridge until a rule amendment formalizes the procedure in this area.

Possible Solutions

The January 21 Smith letter notes that the Supreme Court will be submitting the matter to its Committee on Rules of Practice and Procedure to consider amendments to Rule 3(2) that take account of this aspect of administrative law practice. It seems to me that the logical solutions are three.  The first is to formalize the interim procedure by explicitly directing foreign counsel to the Indiana Supreme Court for authority to engage in practice before an Indiana administrative agency.  This has the benefit of simplicity, but it does impose upon a single (and busy) court a significant administrative burden.

The second solution is to modify the current language of Admission and Discipline Rule 3(2) by building in the concept behind Mr. Smith’s October 18 letter and relying on trial courts to approve temporary admission to practice before administrative agencies. This option spreads the administrative burden out, but it is probably a little less convenient for counsel and would likely require payment of a standard civil action filing fee to the clerk of the applicable court.

The third solution is to tweak the current language of the rule to expressly delegate to ALJ’s the authority to grant temporary admission in matters over which they assert administrative judicial authority to the same extent that trial judges may do so in cases pending before them under the existing rule. To cite one example that I happened on the other day, Colorado follows this latter approach.  Rule 221.1, Colorado Rules of Civil Procedure.  The third solution is one that turns on resolution of a threshold question that I have not examined: Does the Indiana Supreme Court have the constitutional authority (and if so, would it be prudent) to delegate to a separate and independent branch of government powers that are set off to the judicial branch under the state constitution?

Speaking Out

There are undoubtedly many Indiana lawyers who have a great interest in this issue because they often act as local counsel for out-of-state lawyers who practice before administrative agencies.  Having had this matter referred to it, the Rules Committee may choose to formally solicit input from the practicing bar via a notice and comment procedure before finalizing its recommendation to the Court.  But even if it doesn’t, lawyers can make their views known to the Rules Committee.  The Smith letters present an opportunity for definitively resolving a long-simmering, but unresolved, question over executive branch agency authority.

Practice Pointers

Until we have further clarification, how does one go about getting leave to practice temporarily before an administrative agency? Caveat: Whenever you are local co-counsel for temporarily admitted, out-of-state counsel, you should carefully review Indiana Admission and Discipline Rule 3(2) and not rely on some benighted bar magazine columnist to tell you what to do.

  • The foreign attorney must first pay a $130 annual registration fee to the Clerk of the Supreme Court and tender a copy of the proposed petition for temporary admission. The Clerk will issue a receipt for the fee payment and a temporary admission attorney number.
  • The foreign attorney must then file a verified petition with the Clerk of the Supreme Court, co-signed by Indiana co-counsel, reciting the matters described in Admission and Discipline Rule 3(2)(a)(4). The Clerk will require an original and five copies.  A copy of the fee receipt must be attached to the verified petition.  The rule does not say who must be served with the petition, but I believe all parties or their counsel in the administrative proceeding and the administrative law judge should be served.  The Supreme Court Clerk told me that no filing fee will be required and that no form of order needs to be tendered.
  • If the petition is denied, the registration fee will be refunded upon showing the Clerk the order denying admission. If it is granted, the order should be filed in the administrative proceeding and served by the petitioner on the parties to the administrative proceeding or their counsel and the ALJ, whereupon foreign counsel should follow the procedures of the agency that apply to appearances of counsel.
  • Within thirty days of being granted temporary admission, foreign counsel must file a Notice of Temporary Admission with the Supreme Court Clerk informing the Clerk that temporary admission was granted. Because the temporary admission in this instance is granted by the Supreme Court itself, this notice would seem to be redundant.  Even so, it should still be filed and include a copy of the administrative agency filing that documents foreign counsel’s appearance of record..

Not a Potted Plant

Admission of foreign co-counsel is not the end of your co-counsel responsibilities. Among other things, as co-counsel, you must co-sign all filings in the matter.  That co-signature “constitutes a certificate that, to the best of co-counsel’s knowledge, information and belief, there is good ground to support the signed document and that it is not interposed for delay or any other improper reason.”  Rule 3(2)(d).  In-state co-counsel is not a potted plant and should not be paid like one.

The $130 registration fee must be paid yearly between January 1 and January 30 so long as the Indiana matter is still pending and foreign counsel is still counsel of record.  If foreign counsel is no longer of record in the Indiana proceeding as of January 30, foreign counsel must notify the Clerk that the matter has concluded or that foreign counsel’s appearance has been withdrawn and provide a copy of the concluding order or order of withdrawal to the Clerk.  Foreign counsel will receive an annual courtesy reminder of this obligation, but in-state co-counsel will not.  You do a disservice to your out-of-state co-counsel if you do not give them a firm reminder of the importance of following through.  If the fee isn’t paid or the Clerk is not timely notified that foreign counsel is no longer involved in the matter, the foreign lawyer will be automatically excluded from the practice of law in Indiana.  Practice in the case thereafter by foreign counsel will be considered the unauthorized practice of law, and Indiana co-counsel runs the risk of being accused of assisting in the unauthorized practice of law.  See Indiana Rule of Professional Conduct 5.5(a).  There is a way to get relief from such an automatic exclusion, but it is burdensome and embarrassing.

Taking It Seriously

I conclude with a quote to focus your minds on the importance of these responsibilities: “However, Indiana attorneys serving as local counsel for out-of -state attorneys are hereby advised of the importance of their duty to ensure complete and timely compliance with all the requirements of Admission and Discipline Rule 3(2). Indiana attorneys who neglect that duty in future cases may be subject to more stringent discipline, and out-of-state attorneys who fail to comply with this rule may be sanctioned for the unauthorized practice of law in this state.” Matter of Anonymous, 932 N.E.2d 1247, 1250 ( Ind. 2010).