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Boston University v. University of Medicine and Dentistry of New Jersey

May 07, 2003

BOSTON UNIVERSITY, PLAINTIFF-RESPONDENT,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, DEFENDANT AND THIRD- PARTY PLAINTIFF-APPELLANT,
v.
ALTEC, INC, THIRD-PARTY-DEFENDANT.



On certification to the Superior Court, Law Division, Essex County.

SYLLABUS BY THE COURT

This appeal considers whether a licensed New Jersey attorney who is ineligible to practice law in this state nonetheless may rely on his good standing in another jurisdiction to appear pro hac vice.

Boston University (BU) moved before the trial court, pursuant to Rule 1:21-2, to admit pro hac vice its Associate General Counsel, Robert B. Smith, Esquire, to assist local counsel in this breach of contract action. In connection with the motion, Smith submitted a certification in which he asserted that he is a member in good standing of the Massachusetts Bar. However, Smith did not reveal in his certification that he is a licensed New Jersey attorney.

Smith became a licensed New Jersey attorney in 1978 and practiced law in this state for approximately three years. He moved to Massachusetts in 1986, was admitted to practice in that state, and began a practice there. Since that time, Smith has not paid his annual fees to the New Jersey Lawyers' Fund for Client Protection (Fund), as required by Rules 1:20-1(b) and 1:28-2. For this reason, this Court annually has issued orders that declare him ineligible to practice in this state. Smith now owes the Fund approximately $2,489 in arrearages.

Defendant University of Medicine and Dentistry of New Jersey (UMDNJ) opposed BU's motion and argued that Smith should not be permitted to appear pro hac vice until he pays all amounts owed to the Fund. The trial court disagreed, reasoning that Smith's good standing as a member of the Massachusetts Bar satisfies the requirements for pro hac vice admission. Following that ruling, Smith submitted payment to the Fund for that year, as required by Rule 1:21-2(a), but he did not pay his arrearages. UMDNJ moved for reconsideration, in support of which the director and counsel to the Fund certified that an ineligible New Jersey attorney in arrearages for more than one year will not be deemed eligible merely because he or she makes a single year's payment to the Fund for the purpose of securing pro hac vice admission. Further, the Clerk of this Court certified that an attorney licensed in New Jersey may not receive a Certificate of Good Standing until he or she pays all outstanding amounts owed to the Fund. The trial court again concluded that there was no reason to deny Smith pro hac vice admission.

UMDNJ moved for leave to appeal. In granting the motion, the Appellate Division suggested that this Court consider the matter on direct certification. This Court certified the appeal on its own motion pursuant to Rule 2:12-1. HELD: A licensed New Jersey attorney must be a member in good standing of the New Jersey Bar before he or she may appear pro hac vice.

1. The New Jersey Constitution vests this Court with plenary authority to regulate the practice of law in this state. Pursuant to that authority, the Court has promulgated rules that require all New Jersey attorneys to pay an annual assessment of fees. The Fund collects those fees and maintains a list of the names of attorneys who fail to pay. Pursuant to Rules 1:20-1(b)-(c) and 1:28-2, this Court annually issues an Order declaring that each attorney whose name appears on that list may not practice law in New Jersey until he or she pays any outstanding amounts due the Fund. The Fund then mails each ineligible attorney a copy of that Order with instructions on seeking reinstatement. (Pp. 4 to 5).

2. Rule 1:21-2(a) specifies the conditions under which an attorney may seek pro hac vice admission. It states that

"[a]n attorney of any other jurisdiction, of good standing there, whether practicing law in such other jurisdiction as an individual member or employee of a partnership ... authorized to practice law in such other jurisdiction, or an attorney admitted in this state, of good standing, who does not maintain in this state a bona fide office for the practice of law may, at the discretion of the court, be permitted, pro hac vice, to speak in such matter in the same manner as an attorney of this state who maintains a bona fide office for the practice of law in this state and who is therefore, pursuant to R. 1:21-1(a), authorized to practice in this state. No attorney shall be admitted under this rule without annually complying with R. 1:20-1(b), R. 1:28-2, and R. 1:28B-1(e) during the period of admission. " (Pp. 5 to 6).

3. The Court disagrees with BU's argument that because Rule 1:21-2(a) is written in the disjunctive Smith may rely solely on his good standing in Massachusetts to appear pro hac vice. In addition to the prerequisites contained in part a of the rule, part b(1) of the rule provides that those attorneys who are granted pro hac vice status must abide by the New Jersey Court Rules. This Court's rule-making authority may be exercised by the promulgation of formal rules to be included in the published rules of court or in the form of general directives or specific orders. Here, numerous orders indicate that Smith may not practice law in this state until he pays his fees to the Fund. Those orders are clear, admit of no exception, and must be enforced strictly by our courts. Accordingly, Smith must pay the fees required by Rules 1:20-1(b) and 1:28-2, including all arrearages, before he may appear pro hac vice. A license to practice law is a privilege burdened with conditions. Smith has elected to maintain his license to practice in New Jersey, thereby preserving his right to seek immediate reinstatement as an attorney in good standing. This Court will not sanction Smith's decision to retain that benefit while disregarding a concomitant obligation to the Fund. (Pp. 6 to 7).

4. In respect of Smith's failure to disclose in his certification to the trial court that he is currently ineligible to practice law in New Jersey, the Court explains that, pursuant to Rule 1:21-2(b)(1), qualifying for pro hac vice admission on the basis of good standing in another jurisdiction will not exempt a New Jersey attorney from the rules and orders that govern his or her practice before our Courts. Pursuant to RPC 3.3(a)(5), a lawyer shall not knowingly fail to disclose to a tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure. Thus, New Jersey attorneys who are not in good standing in this state must disclose that fact when they seek to appear pro hac vice under Rule 1:21-2. (Pp. 7 to 9).

5. Before a licensed New Jersey attorney may appear pro hac vice, he or she must be a member in good standing of the New Jersey Bar. Under Rule 1:21-2(b)(1), an attorney's appearance before our courts is conditioned expressly on that attorney's compliance with the Court Rules, including specific orders. In this appeal, the trial court granted Smith permission to appear pro hac vice on the basis of his good standing in another jurisdiction. That permission, however, does not exempt Smith from this Court's orders declaring that he remain ineligible to practice law in this state until he remits full payment to the Fund. If Smith remits full payment, including all arrearages, within thirty days of this decision and promptly thereafter obtains a Certificate of Good Standing from the Clerk of this Court, he then may represent BU in this matter. If Smith does not comply with these requirements, the trial court shall revoke Smith's permission to appear pro hac vice pursuant to Rule 1:21-2(d). (P. 9).

6. The Court refers Rule 1:21-2 to the Civil Practice Committee for appropriate clarification ...


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