Tuesday, November 6, 2018

Pro Hac Vice in the Administrative Realm

A few times each year, I am asked about a legal process called "pro hac vice." The phrase is literally "for this occasion," according to Webster. It has come to refer to being granted permission to practice law somewhere that you are not licensed. Many do not notice it very often in daily life, but the United States is significantly territorial in licensing lawyers, with each state making its own decisions about who can practice law there.

Because of this territorialism, a competent and able attorney, licensed in Tennessee or New York or Alaska may not practice law in Florida's state courts. There are similarities between the laws of various states, but also distinctions. A great many states allow "reciprocity," by which an attorney licensed in one state may become licensed in another. Florida is not among those involved in that reciprocal process. However, Florida does have a process in place for practicing law "for this occasion," which allows an attorney licensed elsewhere to appear specially, for a particular case, under certain circumstances. 

In this regard, it is notable that the licensing of Florida attorneys is relegated to the Florida Supreme Court by the Florida Constitution. Section 15, Article V. of Florida's Constitution bestows exclusive jurisdiction: “The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.” Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905 (Fla. 2010). That also is not necessarily consistent from state to state. In some states, attorneys are licensed by some agency of the executive branch, in the same way that doctors, engineers or others are licensed. 

Thus, in Florida, the regulation of attorneys is a power of the Court, and is delegated to The Florida Bar. The Bar has developed rules regarding the admission and behavior of lawyers, and those rules have been proposed to and adopted by the Florida Supreme Court: the Rules Regulating the Florida Bar. Those rules include a variety of topics including the keeping of trust accounts, the Rules of Professional Conduct for attorneys, and more. Among the Rules of Professional Conduct is Rule 4-5.5 regarding "Unlicensed Practice of Law; Multijurisdictional Practice of Law":
"(a) A lawyer may not practice law in a jurisdiction other than the lawyer's home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer's home state or assist another in doing so."
However, the rule provides authority for "temporary" practice (perhaps merely "for this occasion") in section (c):
"(c) A lawyer admitted and authorized to practice law in another United States jurisdiction who has been neither disbarred or suspended from practice in any jurisdiction, nor disciplined or held in contempt in Florida by reason of misconduct committed while engaged in the practice of law permitted pursuant to this rule, may provide legal services on a temporary basis in Florida . . . ."
Thus, the rules of The Florida Bar allow an attorney in good standing to practice on a "temporary basis" under certain circumstances. The Florida Rules of Judicial Administration (Fla. R. Jud. Admin.) are another set of rules adopted by The Florida Supreme Court. Those rules, by their own terms "apply to administrative matters in all courts to which the rules are applicable by their terms," Fla. R. Jud. Admin. Rule 2.110. (Emphasis added). This is all fairly logical and reasonably easy to follow. 

Fla. R. Jud. Admin. Rule 2.510 provides a process for "foreign attorneys.": 
(a) Eligibility. Upon filing a verified motion with the court, an attorney who is an active member in good standing of the bar of another state and currently eligible to practice law in a state other than Florida may be permitted to appear in particular cases in a Florida court upon such conditions as the court may deem appropriate, provided that a member of The Florida Bar in good standing is associated as an attorney of record. (Emphasis added). 
So, attorneys from other states routinely apply to practice law in  Florida on a temporary basis. They are granted that permission by some court (all courts in Florida are created and empowered by Article V. of the state constitution, discussed above, which provides the Supreme Court's exclusive jurisdiction to both license and regulate attorneys). Whatever court grants such a motion is, pursuant to Supreme Court Rules, exercising constitutional authority that is either inherent in that court, or more likely is appropriately delegated by the Florida Supreme Court through the Rules Regulating the Florida Bar and the Rules of Judicial Administration. 

But, here is the rub. The Florida Office of Judges of Compensation Claims is not a "court." See Conferring Jurisdiction. For decades, the Florida Supreme Court adopted procedural rules for the practice of workers' compensation in Florida. This was done with everyone's knowledge and acquiescence. But, very early in the twenty-first century, the Florida Division of Administrative Hearings and Office of Judges of Compensation Claims enacted procedural rules. Thereafter, The Florida Bar nonetheless continued proposing changes in those rules previously enacted by the Florida Supreme Court. When those proposals for amendment reached the Court in 2004, it addressed authority and jurisdiction. 

In Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004) , the Court acknowledged its long history of adopting rules for this administrative practice. It noted its reliance upon the Florida Constitution, Article V., and later reliance upon statutory delegation of rule-making authority conveyed by the Florida Legislature. It concluded "that this Court lacks the authority to promulgate rules of workers' compensation procedure." Accepting that it had authority to enact rules for practice in all "courts," the Court held "the Office of the Judges of Compensation Claims (OJCC) is not a court of this State." (Emphasis added).

There are a great many who struggle with this. There are even some who have attempted to act like a court to some degree. See Pace v. Miami-Dade County School Bd., 868 So. 1286 (Fla. 1st DCA 2004). There are some administrative judges who even wear robes for administrative proceedings, the same way constitutional judges wear robes in court proceedings. Despite this apparent desire to be a court, or to look like a court, or to act like a court, the Office of Judges of Compensation Claims is not a court. 

The Office of Judges of Compensation Claims (OJCC) has no "inherent judicial authority" as do the Courts under Article V. of the Florida Constitution. The OJCC can exercise only the authority that has "been specifically delegated to the JCCs by the Legislature." Alachua County Adult Detention Center v. Alford, 727 So. 2d 388 (Fla. 1st DCA 1999). This Office "exists and operates under grant of quasi-judicial power from Legislature." Thus, if the Legislature has delegated authority by statute, then the JCCs can exercise that authority. But, they cannot act like a court, or exercise the inherent authority of a court, because as the Supreme Court reminded "the Office of the Judges of Compensation Claims (OJCC) is not a court." 

And that returns us to Fla. R. Jud. Admin. Rule 2.510 quoted above. That rule allows the admission of foreign attorneys for the purpose of a specific case in Florida's courts. But the key word there is "court." The rule uses "court" three times. The rule adopted by the Supreme Court, pursuant to its authority under the Florida Constitution to regulate "courts," uses "court" three times. There is no mention of administrative agencies.

Furthermore, the Supreme Court itself has clearly decided and stated that this administrative office is not a "court." And, there appears no grant of authority in Chapter 440, Fla. Stat. that grants an individual Judge of Compensation Claims any authority to allow someone to practice law in the State of Florida. Could the agency adopt a rule that so allowed? Is there statutory authority to support such a rule? Those are valid questions. But, the question today is not might some authority be created to so empower the JCC, it is "does" that authority exists. The answer seems to be no. 

Can a Florida Judge of Compensation Claims temporarily allow a foreign attorney to practice law in Florida? The answer seems to depend on answering the following "where in Florida statutes has the legislature delegated that authority?" And, with the "exclusive" authority over the admission to practice law vested by the Florida Constitution in the Florida Supreme Court, one might also validly conclude that the legislature could not delegate such authority to the JCCs as it does not have that authority in the first instance. 

If this were a mathematical analysis, one might here conclude, the JCC has no authority to grant a motion for appearance "pro hac vice," for "this occasion," because that authority is exclusive to the courts, the OJCC is not a court, and there is no statutory authority to the contrary, quod erat demonstrandum (which is what was to be shown originally). And presumably the answer will not change if one puts on a dime store robe before making the decision. See, it is the court that makes the robe, not the robe that makes the court. Without the court, the robe is just a costume. 


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