United States District Court, D. New Jersey
August 16, 2005.
JAMES R. DALTON, et. al, Plaintiffs,
GENERAL MOTORS CORP., et. al, Defendants.
The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
This matter comes before the Court upon Attorney Richard
Burton's and Plaintiffs' Appeal of Magistrate Judge Bongiovanni's
June 24, 2005 Order which denied Mr. Burton's pro hac vice
admission to this Court. (Docket entry # 23.) This Court, having
considered the papers submitted by the parties, for the reasons
set forth below, and for good cause shown, denies the appeal and
affirms the Magistrate Judge's Order.
This case was initiated on or about February 2, 2005. On or
about March 28, 2005, Defendants filed an answer, as well as
various motions, including one for summary judgment and one to
dismiss several counts of the Complaint. Those motions are still
pending. On or about April 22, 2005, counsel for Plaintiffs made a motion for the
admission pro hac vice of seven attorneys. Plaintiffs' moving
papers in support of this motion conveyed that Defendants
consented to the admission of all but one of the applications,
that of Mr. Richard J. Burton. The instant appeal pertains only
to Mr. Burton's application.*fn1
As required under Local Rule 101.1(c), Plaintiffs' application
and Mr. Burton's supporting affidavit made representations that
Mr. Burton was not under suspension or disbarment by any Court
and that he was in good standing with the Bars of Florida and the
District of Columbia. Defendants, however, filed opposition to
his pro hac vice application asserting that Mr. Burton's
"lengthy history of unethical, uncivil and unprofessional
behavior toward witnesses, opposing counsel and the courts"
should compel the Court to deny his pro hac vice admission.
Defendants submitted their opposition papers on or about May 2,
2005, at which time Plaintiffs requested an extended briefing
schedule so as to be able to adequately respond to Defendants'
lengthy submission which included approximately 334 pages of
accompanying exhibits. With Defendants' consent, the Court
adjourned the return date from May 16, 2005, to June 20, 2005.
Plaintiffs were given an additional five weeks to respond to
On or about June 8, 2005, Plaintiffs filed their reply brief,
including approximately 260 pages of accompanying exhibits. On or
about June 24, 2005, the Magistrate Judge issued an order denying Mr. Burton's application to appear pro hac vice
in this Court. The June 24, 2005 Order stated that Mr. Burton's
"collective ethical history suggests the Court should exercise
its discretion and deny his admission to this Court." Plaintiffs
now appeal the Magistrate Judge's decision, pursuant to Local
Rule 72.1(c)(1), asserting that the decision to deny Mr. Burton's
pro hac vice admission was clearly erroneous and contrary to
II. LEGAL STANDARDS
A. Standard of Review
The standard of review of a magistrate judge's decision depends
upon whether the issue addressed was dispositive or
non-dispositive. Andrews v. Goodyear Tire & Rubber Co.,
191 F.R.D. 59, 67 (D.N.J. 2000). A district court may reverse a
magistrate judge's order on a non-dispositive matter only if it
finds the ruling clearly erroneous or contrary to law. Id.;
see also 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a);
L. Civ. R. 72.1(c)(1)(A). The district court is bound by the
clearly erroneous rule as to findings of fact, while the phrase
"contrary to law" indicates plenary review as to matters of law.
See Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.
1992). According to the Supreme Court, "a finding is `clearly
erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). "Where a
magistrate judge is authorized to use his or her discretion, the
decision will only be reversed for an abuse of that discretion."
Cooper Hosp. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998).
Pretrial matters, such as discovery and attorney
disqualification, are treated as non-dispositive matters in this Court. Andrews, 191 F.R.D. at 68. Therefore,
the denial of Mr. Burton's pro hac vice application will be
considered under the non-dispositive standard and only reversed
if this Court determines the magistrate judge's ruling was
"clearly erroneous or contrary to law."
B. Standard for Admission Pro Hac Vice
The United States District Courts have no uniform standard for
admission pro hac vice. In re Dreier, 258 F.2d 68, 69 (3d
Cir. 1958) ("there is no federal procedure for examining
applicants either as to legal ability or moral character.") In
the District of New Jersey, guidance comes from local rule
101.1(c)(1), which states in pertinent part: "Any member in good
standing of the bar of any court of the United States or of the
highest court of any state, who is not under suspension or
disbarment . . . may in the discretion of the Court, on motion,
be permitted to appear and participate in a particular case."
N.J. Fed. Prac. R. 101.1(c)(1) (emphasis added). Although there
are few stated requirements under this rule, the discretionary
language, including the specific choice of the word "may,"
undoubtedly contemplates situations where good standing alone may
not be enough to secure pro hac vice admission. Kohlmayer v.
Nat'l R.R Passenger Corp., 124 F. Supp. 2d 877, 889 (D.N.J.
2000). Indeed, unacceptable attorney conduct or character might
not always be gleaned solely from an attorney's bar standing
alone. If that were the case, the local rules would have provided
that any licensed attorney would be granted admission simply upon
Motions for pro hac vice admission are liberally granted in
this Court, but this practice should not suggest that the Court
lacks standards for pro hac vice admission outside of the
requirements articulated in the Court's local rules. Although it
is true that most pro hac vice motions are granted, they are more often than not unopposed or
submitted with the consent of opposing counsel. However, where
there appears to be question regarding the fitness of a lawyer
seeking pro hac vice admission, this Court relies upon, and
indeed expects, the assistance of the attorneys in the matter to
present such information to the Court. It would be impossible for
the Court to undertake an independent background review of every
attorney seeking pro hac vice admission.
The judiciary of the District of New Jersey seeks to maintain
the highest standards of professional responsibility among the
attorneys and litigants appearing in its courtrooms. By
designating the Court as the gatekeeper of out-of-town counsel,
the authors of the local rules anticipated that the Court would
utilize its discretionary review of pro hac vice applications
to maintain these standards and that the Court would occasionally
deny applications for good cause shown. It is of the utmost
importance to this Court that admitted attorneys exemplify good
moral and professional character at all times.
There is little case law available in the District of New
Jersey to define the standards of granting or denying pro hac
vice admission. The issues and concerns of the Court relating to
pro hac vice admission are thoughtfully discussed in Kohlmayer
v. National Railroad Passenger Corp., 124 F. Supp. 2d 877
(D.N.J. 2000). In that case, the court affirmed a magistrate
judge's decision to deny a pro hac vice application,
emphasizing the importance of attorney civility in and out of the
courtroom. Id. at 879. The court noted that although
uncivilized attorney conduct may not rise to the level of a
technical violation of ethics rules resulting in official
discipline, that conduct may nonetheless be a cause of concern
because of its "stain on the legal profession and often [its]
delay? [of] the judicial process." Id. In Kohlmayer, the attorney seeking pro hac vice admission
had a record "replete with instances of grossly inappropriate,
uncivilized, and unprofessional behavior." Id. at 880.
Specifically, a mistrial was granted in a federal court matter,
in part due to the attorney's "improper opening statement, his
egregious leading of witnesses, his attempt to coach the
plaintiff during cross-examination . . . and his troubling
demeanor." Id. at 881. The Kohlmayer court cited another case
involving the same attorney where a district court granted a
motion for a new trial by defendants based upon the attorney's
"grossly uncivilized behavior at trial." Id. at 880. The
attorney verbally attacked his adversary during trial and on the
record. Id. He apologized for the outbursts and the court
continued the trial with a "`wait-and-see' attitude." Id. When
granting defendants' motion for a new trial, the court noted that
it made a mistake when it allowed the trial to proceed, as the
attorney's poor conduct only continued through trial. Id.
The attorney in Kohlmayer unsuccessfully argued that the
above noted incidents and other cited conduct were not relevant
to his pending pro hac vice application. In rejecting this
assertion, the court noted that "[i]f [the attorney] chooses to
act in an uncivilized, possibly unethical manner, he should
expect negative repercussions." Id. at 881. The attorney argued
that the court did not have the authority to deny pro hac vice
admission where an attorney is in good standing.*fn2 He
further asserted that "admission to a state bar creates a
presumption of good moral character that cannot be overcome by
the `whims of the district court.'" Id. at 882 (citing
Schlumberger Tech., Inc. v. Wiley, 113 F.3d 1553, 1559 (11th
Cir. 1997)). Although the court did not disagree with this
premise, it added that "the record [before the Court] is more
than sufficient to overcome (in a far from whimsical manner) the
presumption of [the attorney]'s good moral character." Id.
The Third Circuit Court of Appeals mandated certain procedures
for the administration of pro hac vice revocations in Johnson
v. Trueblood, 629 F.2d 302 (3d Cir. 1980). Although Johnson
involved the revocation of an attorney's pro hac vice admission
at the conclusion of trial rather than an initial pro hac vice
application, the Court will assume arguendo that the Third
Circuit's decision applies to the denial of a pro hac vice
admission, as well as its revocation.
In Johnson, the United States District Court for the Eastern
District of Pennsylvania revoked the pro hac vice admission of
an attorney based upon his conduct during trial. Id. at 302.
The attorney had no notice or hearing on the matter, which was
initiated sua sponte by the court. Id. The issue presented to
the Third Circuit on appeal was "what procedures should be used
where a district court seeks to revoke an attorney's pro hac vice
status." Id. at 303.
The Third Circuit held that when a district court seeks to
revoke an attorney's pro hac vice status, "some type of notice
and an opportunity to respond" are required. Id. The actual
type of notice required is at the discretion of the court, but at
a minimum, the notice should include a description of the conduct
in question and the specific reason that conduct may justify
revocation. Id. at 304. The second requirement, an "opportunity
to respond," does not necessarily mandate a full scale hearing,
but does necessitate a "meaningful opportunity to respond to the
identified charges." Id. "[I]n certain cases a full hearing
might be desirable," but this decision is also at the district
court's discretion. Id.
This Court is convinced that an attorney's good moral and
professional conduct is an appropriate and essential inquiry when
considering a motion for pro hac vice admission, and that indeed, a consistent record of improper conduct may warrant
denial of the application. Although past disciplinary actions are
by no means a bar to admission to this Court, they are entirely
relevant to the Court's review of the attorney's background and
fitness to practice in this district. Further, this Court is
satisfied that there is a point where an attorney's "repeated,
documented, instances of uncivilized behavior, whether or not
rising to the level of disbarable offense, strips him of the
privilege of pro hac vice admission." Kohlmayer
124 F. Supp. 2d at 883. The determination of whether an attorney's conduct
merits denial of pro hac vice admission must be made on a
case-by-case basis and the ultimate determination of the
attorney's admission pro hac vice is at the discretion of the
Although this Court will consider the procedural requirements
articulated by the Third Circuit in Johnson, this Court does
not intend to suggest that the mandate applies to initial
application denials in this district. Indeed, it appears to this
Court that any concerns as to notice and opportunity to respond
are essentially fulfilled by motion practice, which is the
procedure for pro hac vice admission in this Court.
Mr. Burton's application for pro hac vice admission to this
Court provided the required representation that he is a member in
good standing of the Bar of the State of Florida and of the
District of Columbia. The application, however, made no reference
to Mr. Burton's past disciplinary record or the pending
allegations against him. While Plaintiffs are correct that local
rule 101.1(c)(1) does not explicitly require this disclosure, the
Court's discretionary review of a pro hac vice application
might, and in this case certainly does, warrant consideration of
such past conduct. Plaintiffs' appeal papers state that Magistrate Judge
Bongiovanni's June 24, 2005 Order makes it "impossible to
determine whether [she] accepted any of the numerous disputed
points made in the Defendants' memorandum." (Pls.' Appeal at 5,
docket entry 23.) Plaintiffs criticize the Order for its failure
to provide a "written reason for denial other than a vague
reference to Mr. Burton's `collective ethical history.'" (Id.
at 8.) Plaintiffs reference no statute, federal rule, local rule,
or case law, which requires a lengthy explanation for a pro hac
vice denial, and this Court is not aware of any. After a close
review of the papers submitted by the parties in support of this
appeal, this Court not only agrees with the Order, but believes
Magistrate Judge Bongiovanni extended a courtesy to Mr. Burton
when she refrained from detailing his past conduct in a more
A. Factual Findings "Clearly Erroneous" Standard
The district court reviews a magistrate judge's findings of
fact for clear error. Mruz v. Caring, Inc., 166 F. Supp 2d 61,
66 (D.N.J. 2001) (citing Cooper Hosp., 183 F.R.D. at 127). The
Court will review Mr. Burton's disciplinary proceedings and
actions, and instances of alleged improper conduct during the
course of litigation in other jurisdictions. With respect to Mr.
Burton's discipline, there appears to be little dispute between
the parties about the facts giving rise to those actions. Mr.
Burton, however, submits for the Court's consideration,
explanatory responses for the conduct. The alleged improper
conduct in other litigation matters, much of which appear in
court transcripts, are disputed to the extent that Plaintiffs
assert Defendants "misconstrued" the facts with regards to the
evidence presented. i. Disciplinary Proceedings and Actions
Mr. Burton's disciplinary history is less than exemplary. Over
the course of his thirty-one year career, the Florida Supreme
Court has admonished him once, reprimanded him once, and
suspended him twice. (Letter from Fla. Bar to Ralph DeSena of
2/27/2003.) Even more troubling to this Court is the fact that
Mr. Burton's first reported incidence of misconduct arose in
1988, approximately fourteen years after his admission to the
Florida Bar. Mr. Burton's second suspension was seven years ago,
in 1998, following lesser sanctions in 1992 and 1994. The
incidents described below, although inexcusable under any
circumstances, were undertaken by an experienced and seasoned
trial attorney, and they were not limited to one or two isolated
a. 1990 Suspension
In 1990, Mr. Burton came before the Florida Supreme Court on a
consolidation of two complaints of attorney misconduct. Although
Mr. Burton did not admit that his conduct constituted a violation
of the disciplinary rules as charged, he did admit to the factual
allegations. The Referee hearing the case recommended Mr.
Burton's suspension for 90 days and probation for two years. In
addition, during the probationary term, he recommended that Mr.
Burton obtain counseling and file a quarterly report with the
The first part of the 1990 bar complaint involved Mr. Burton's
deliberate communication with his client's adversaries (three
defendants) when he knew these individuals were represented by
counsel. Late on the evening of June 26, 1988, following a jury
verdict in his client's favor, Mr. Burton called each of the
three elderly defendants sometime after 11:00 p.m. to inform them
of his client's victory. To one defendant he said, "You lost it
all, you dirty bastard." To another he stated that his client got a lot of money and also called him
a "dirty bastard." To the third defendant, Mr. Burton stated that
he "beat the hell out of him." (Amend. Report of Referee of
The referee's report and recommendation on this complaint reads
The prohibition on contact with opposing parties
represented by counsel is elementary; for an
experienced trial attorney, such as [Mr. Burton], it
is axiomatic. Violation of the proscription for the
sole purpose of annoyance and humiliation, in
satisfaction of a petty vendetta, is most serious.
The targets of the instant contacts were all elderly
individuals, each of whom was called at home, late at
night, and subjected to juvenile profanity. Each
contact constituted outrageous and intolerable
behavior by a member of the Bar.
(Id.) In his supporting papers to this Court, Mr. Burton
attempts to justify this conduct as the result of "`roid rage."
(Pls.' Reply, Burton Aff. ¶ 13.) Mr. Burton explains that at time
of the trial, he was "taking large doses of medically prescribed
hydrocortisone (steroid)." (Id.) Mr. Burton reports that a
deposition of his doctor later revealed "that side effects of
such high doses of hydrocortisone are `roid rage,' which can be
intensified by alcohol." (Id.) Further, Mr. Burton states that
he does not recall making the phone calls to the defendants
following the verdict. (Id.). Mr. Burton contends that he
experienced an unusually trying day after he was allegedly
"punched . . . in the face" by opposing counsel, which caused him
to be "very upset and distraught." (Id.)
The second part of the 1990 bar complaint alleged "conduct
involving dishonesty, fraud, deceit or misrepresentation which
adversely reflects on his fitness to practice law." (Amend.
Report of Referee of 8/6/1990.) Specifically, the findings of
fact in the referee's report explain that a female client
retained Mr. Burton to represent her in a divorce proceeding in
or around July 1986. During the course of representation, Mr.
Burton "became aware of physical, psychological, emotional and medical problems which were suffered
by [his client]." (Id.) Mr. Burton received $2,500 in temporary
attorney's fees from his client's husband on or about August 6,
1986, and in December 1986 he received three checks for the
agreed divorce settlement payable to his client. The client
requested her settlement checks, but Mr. Burton, contrary to a
previous agreement, refused to release the checks until she paid
all incurred costs and fees. In addition to "poor judgment in his
handling and explanation of the fee and cost matters" to his
client, Mr. Burton engaged in "miscellaneous sexual contact" with
her during the course of his representation. (Id.)
The Florida Supreme Court Referee's report stated the
The attorney-client privilege is founded upon trust,
fostering, in turn, an intellectual, and often
emotional, dependency. Such a trust is jeapordized by
a sexual relationship; it is entirely underminded
where a client is an emotionally vulnerable
individual seeking counsel with respect to divorce.
. . .
[Mr. Burton's client] suffered under extreme stress
and was highly medicated when she sought . . . legal
services for her [divorce]. Her condition was
obvious. She had a right to expect her attorney to
conduct himself in accord with the highest standards
of the profession; he failed. Although [the client]
was a willing party . . . and therefore deserving
some responsibility, her attorney must be held to a
far higher standard. He exploited the professional
relationship to satisfy his sexual interest. Such
self-centered, callous and reckless behavior is a
gross abuse of the privilege of practicing law. The
danger of such impropriety became manifest in the
"chilled" attorney-client relationship and redefined
financial arrangements that followed their sexual
Mr. Burton's papers before this Court attempt to minimize the
significance of his conduct. In his affidavit submitted in reply
to Defendants' opposition, he explains that his client "came to
[his] hotel room at 2:00 am with a bottle of champagne." (Pls.'
Reply, Burton Aff. ¶ 14.) He states, "I admit to this one and only sexual encounter.
The divorce case was later settled favorably for [my client]."
Mr. Burton points out that this situation came to the attention
of the Florida Bar by his own admission. Specifically, he
explains that "[o]ne and one-half years later, [my client] called
me in an attempt to have me testify against an attorney she was
blackmailing. I refused to participate in this scheme and called
the Florida Bar to report the incident, at which point I admitted
the prior sexual encounter. Thereafter [she] brought bar charges
against me." (Id. ¶ 15.)
The Court is puzzled by Mr. Burton's reaction to both of the
1990 disciplinary matters. Little, if any, of his explanatory
statements address concerns that might arise when the Court
reviews his past conduct in consideration of his pro hac vice
admission. As to the first incident, it is irrelevant whether Mr.
Burton was distraught by a confrontation with his opposing
counsel or whether or not he knew that alcohol would exacerbate
"`roid rage." As to the second allegation, the Court is not
interested in the outcome of his client's litigation or the
number of sexual encounters Mr. Burton had with his client. What
is seemingly absent from Mr. Burton's papers, and what would have
been of interest to this Court, is any indication of remorse or
rehabilitation or at the very least an acknowledgment that the
type of behavior he previously exhibited is unacceptable.
b. 1992 Admonishment and 1994 Public Reprimand
Neither of Mr. Burton's disciplinary actions in 1992 and 1994
are discussed in detail by Defendants, and Mr. Burton provides
this Court with no explanation for them. The Court will note,
however, what it finds of relevance in the referee's report from
the 1994 hearings.
The Report of Referee dated on or about September 6, 1994,
references the 1992 action, only providing that Mr. Burton "received an admonishment for
minor misconduct." (Report of Referee of 9/6/1994.) No further
information on the events leading to that disciplinary action was
made available to the Court. The 1994 complaint involved a
deposition wherein Mr. Burton and his opposing counsel were rude
and disruptive to each other's questioning. The atmosphere
between the attorney was described as "highly charged," and Mr.
Burton told his adversary to "shut up" and "sit down." Mr. Burton
apologized and later expressed remorse at the hearing before the
The referee recommended that Mr. Burton be found guilty of
various ethical rules, including failure to respect the legal
system and failure to respect the rights of third persons. The
referee found Mr. Burton's previous disciplinary noteworthy and
was part of the reason for the suggested reprimand. (Id.)
c. 1998 Suspension
On or about March 5, 1998, the Supreme Court of Florida
suspended Mr. Burton from the practice of law for the second time
for a term of sixty days. Mr. Burton "submitted an Unconditional
Guilty Plea and Consent Judgment for Discipline." As a condition
of his probation following the suspension, Mr. Burton agreed "to
submit an evaluation by Florida Lawyers Assistance, Inc." (Report
of Referee of 2/18/1998.)
The bar complaint leading to this disciplinary action arose
from sanctions against Mr. Burton entered by a trial court in
Florida. In that litigation, Mr. Burton represented former owners
of a Miami Beach home who were sued by the current homeowner.
Following a mistrial, the plaintiff's lawyer in the case filed a
motion for sanctions against Mr. Burton for his "injudicious
remarks." Those "remarks," made after the declaration of a
mistrial, and when the court was practically empty, included Mr. Burton's "singing or
humming of `Springtime for Hitler.'" The remarks were "perceived
by the Plaintiff to be an insult to her and her ethnic
background," although Mr. Burton "contend[ed] that he did not
intend to insult the Plaintiff." (Id.)
The trial court had three other bases for its sanctions against
Mr. Burton. First, the court found that Mr. Burton
inappropriately engaged in a discussion with a witness subpoenaed
by the Plaintiff regarding whether or not the witness could
leave. Second, Mr. Burton brought more witnesses to view property
at issue in the case than were allowed by the Court. Third, Mr.
Burton "rudely and inappropriately removed the tape paper from a
Court Reporter's stenography machine . . . at the above stated
property viewing . . . believing the court reporter's attendance
. . . was not authorized." (Id.)
Mr. Burton provided this Court with the following explanation
regarding the remarks made at the end of trial:
I did in fact hum the tune "Springtime for Hitler"
while packing up the boxes at the end of the day at
trial in the presence of . . . (co-counsel), and the
plaintiff and her counsel. The plaintiff swore in the
bar proceeding she was non-Jewish German. [Plaintiff]
had no familiarity with the tune, rather her counsel
advised her she had been insulted. It was later
uncovered that the plaintiff was not ethnic German,
but rather Jewish Canadian of German heritage. She
was later indicted in the same case for an incident
relating to forging a material document.
(Pls.' Reply, Burton Aff. ¶ 17.)
With regard to the other events, Mr. Burton "contend[ed] he was
not responsible for bringing the additional witness [to the
property]. Instead, one authorized witness brought an additional
employee to the scene . . . [and he] was not aware of this
additional expert was going to attend until the individual appeared at the residence."
(Report of Referee of 2/18/1998; see also Pls.' Reply, Burton
Aff. ¶ 18.) The incident with the court reporter occurred after
Mr. Burton "notified the court reporter he did not consent to a
reporting of his confidential discussion with the expert
witnesses." (Report of Referee of 2/18/1998). When the reporter
"persisted in reporting what [Mr. Burton] believed were
confidential conferences . . . [Mr. Burton] removed the paper
tape from the stenograph machine," and delivered the paper to the
Judge. (Id.; see also Burton Aff. ¶ 20.) With respect to
the conversation with a witness, Mr. Burton provides this Court
with the following explanation:
It was alleged that I inappropriately suggested that
the opposing party's subpoenaed witness could leave
before being released by opposing counsel. The
opposing counsel had subpoenaed a witness from out of
town for the trial. The witness had been sitting in
the hallway for about three days. The witness asked
me if he could leave to feed his dog and I said that
the witness should speak to (opposing counsel). The
Bar did not find that I released the witness, only
that my discussion with the witness on the subject
(Pls.' Reply, Burton Aff. ¶ 19.)
The referee's recommendation of guilt included violations of
three Rules of Professional Conduct. Specifically, rule 4-4.4,
which states in pertinent part, "[i]n representing a client, a
lawyer shall not use means that have no substantial purpose other
than to embarrass, delay, or burden a third party;" rule
4-8.4(a), which states "a lawyer shall not violate or attempt to
violate the Rules;" and rule 4-8.4(d), which states that "a
lawyer shall not engage in conduct in connection with the
practice of law that is prejudicial to the administration of
justice, including the knowingly, or through callous
interference, disparage, humiliate or discriminated against
litigants, jurors, witnesses, court personnel, or other lawyers
on any basis."
Again missing from Mr. Burton's papers submitted to this Court
in support of his initial application and this appeal is any indication of remorse or
assurance of rehabilitation. Mr. Burton does nothing to assuage
this Court's obvious concern about admitting pro hac vice a
lawyer who has blatantly violated rules of professional
responsibility and openly disrespected the judicial system.
Again, in his explanations to this Court, Mr. Burton only points
to the fault of others, whether it be the court reporter's
persistence, or that the plaintiff would not have identified the
"Springtime in Hitler" melody without the suggestion of her
d. Pending Complaint
Following a trial in the Southern District of Florida, Steve
Harris v. Target Corp., case No. 00-6107 (S.D. Fla.), attorneys
from Shutts & Bowen LLP filed a bar complaint regarding Mr.
Burton's and his co-counsel's conduct during and after the trial.
After review of the complaint and the responses from Mr. Burton
and his co-counsel, the Florida Bar found probable cause as to
one of the alleged ethical violations against Mr.
Burton.*fn3 Specifically, the bar counsel found probable
cause that Mr. Burton had improperly contacted jurors in
violation of Rule 4-3.5 of the Florida Rules of Professional
Conduct. That Rule states in pertinent part:
A lawyer shall not . . . after dismissal of the jury
in a case with which the lawyer is connected,
initiate communication with or cause another to
initiate communication with any juror regarding the
trial except to determine whether the verdict may be
subject to legal challenge, provided, a lawyer may
not interview jurors for this purpose unless the
lawyer has reason to believe that grounds exist for
such challenge may exist, and provided further,
before conducting any such interview the lawyer must
file in the cause a notice of intention to interview
setting forth the name of the juror or jurors to be
interviewed. A copy of the notice must be delivered
to the trial judge and opposing counsel a reasonable
time before such interview.
Fla. R. Prof. Conduct 4-3.5. Mr. Burton represented a plaintiff in a lawsuit against Target
Corporation alleging racial discrimination. The case, tried in
October 2001, resulted in a verdict for Target, but the trial
judge granted plaintiff's motion for a new trial in February
2002. In May 2002, a jury again entered a verdict for defendant
Target. After the second trial verdict, Mr. Burton and his
co-counsel filed a Motion for Judgment as a Matter of Law seeking
either a judgment in their favor or a new trial. In support of
this motion, they submitted an affidavit from a juror and an
affidavit from Mr. Burton's co-counsel detailing an interview she
conducted with another juror. (Letter from Larry T. McMillan to
the Fla. Bar of 11/04/2003.) Defendant Target filed a motion to
enjoin plaintiff's counsel from any further contact with jurors.
In response to the motion, Mr. Burton and his co-counsel admitted
the communications with the jurors and in defense of their
actions, they claimed that "Defendant's counsel was well aware of
Plaintiff's contact with the jury AFTER the verdict and voiced no
In his response to the bar complaint, Mr. Burton claimed that
"he was not aware of the Court's rule that prohibits contact with
discharged jurors." (Letter from Herman J. Russomanno to the Fla.
Bar of 2/18/2003 at 10.) Mr. Burton "apologize[d] for this
error," acknowledging that "as [a] trial attorney[,] [he] must
know the rules." (Id. at 7.)
The findings of Florida Bar's investigation into the complaint
reveal that following the second trial against Target, Mr. Burton
requested that his co-counsel approach jurors to "seek comments
regarding his style, demeanor and performance." (Letter from
Larry T. McMillan to the Fla. Bar of 11/04/2003.) After waiting
for approximately 45-60 minutes outside of chambers, the jurors
emerged and Mr. Burton's co-counsel "asked the departing jurors
if any of them would speak to her." (Letter from Herman J.
Russomanno to the Fla. Bar of 2/18/2003 at 8.) Two jurors agreed, and subsequent conversations ensued, which in
turn, became the basis for the plaintiff's motion. (Id. at 9.)
Mr. Burton's response to the bar complaint attempts to explain
his conduct by asserting that, despite almost thirty years of
trial experience, he was unaware of the rule prohibiting juror
contact. Further, he argues that even if he did violate the rule,
"the rules of the Florida Bar regulating juror contact are
designed to avoid embarrassment of the juror and any undue
influence on that jurors' action in any subsequent jury service,"
and his co-counsel's contact was not with this intention. (Id.
at 9.) Also, Mr. Burton suggests that the "rule has been in flux
ever since its adoption by the Florida Supreme Court" somehow
making it hard for him to know the true interpretation. (Id.)
The Florida Bar's Investigating Member found probable cause for
the bar complaint as to Mr. Burton, despite the fact that he did
not conduct the juror interviews himself. (Letter from Larry T.
McMillan to the Fla. Bar of 11/04/2003.) The probable cause was
based upon Mr. Burton's specific instructions to his
inexperienced co-counsel (she was admitted in 1999) to conduct
the juror interviews and a finding that Mr. Burton should know
the rules after almost thirty years of experience. Although the
Florida Supreme Court has not issued a formal ruling on this
disciplinary complaint, this Court need not wait for that
determination in order evaluate his conduct.
It appears to this Court that the rule prohibiting juror
contact without leave of court is well-established in Florida and
not in "flux" as Mr. Burton suggests. Mr. Burton's conduct was a
violation of not one, not two, but three Florida court rules.
This Court finds it hard to believe that after almost thirty
years of trial practice, an experienced trial attorney was simply
"unaware" of Rule 4-3.5 of the Florida Rules of Professional Conduct, Rule
1.431(h) of the Florida Rules of Civil Procedure, and Rule
11.1(E) of the Florida Federal Practice Rules none of which are
the least bit unclear about how an attorney may contact jurors
following a trial.
In his response to the bar complaint, Mr. Burton cites a 1974
Florida Court of Appeals case to support his argument that "[i]t
used to be common practice for counsel to interview jurors at the
end of a trial, both to find out `what went wrong' and for the
general education of counsel.'" Brassell v. Brethauer,
305 So. 2d 217, 219 (Fla.App. 1974). However, that same case explains
that despite the previous trend, "in 1966, upon petition of the
Florida Bar of the Supreme Court of Florida amended Canon 23 . . .
so as to terminate indiscriminate interviewing of jurors by
requiring that a lawyer have `reason to believe'[grounds for a
verdict challenge exist] and that he file notice of his intention
to interview." Id. Interestingly, Mr. Burton also points to the
Florida Supreme Court's approved discharge instruction to suggest
that Florida promotes the "common practice" of communication with
jurors after trial. That instruction states, in pertinent part:
"The lawyers and their representatives are not permitted to
initiate any communication with you about the trial. However,
you may speak to the lawyers or anyone else about the trial."
(Letter from Herman J. Russomanno to the Fla. Bar of 2/18/2003 at
9) (emphasis added); see also Fla. Forms of Jury Instr. §
This Court fails to see how Mr. Burton's arguments support a
finding that he was not in violation of the juror communication
rule. Florida's ban on "indiscriminate" juror interviewing was
introduced as early as 1966. Mr. Burton was admitted to the
Florida Bar in 1974, and has been an active trial lawyer since
that time. Mr. Burton's improper juror contact occurred in 2002.
Therefore, even if he failed to familiarize himself with his home
state's basic civil procedure and professional responsibility rules during his thirty
years of practice, his significant jury experience would have
provided him the opportunity to hear the jury discharge
instruction on numerous occasions. The repeated reminder that
"the lawyers and their representatives are not permitted to
initiate any communication with you," should have at the very
least tipped him off to the limits on juror contact.
This Court is convinced that Mr. Burton's disregard for a rule
clearly articulated in three basic rule books warrants serious
concern. For an attorney who has practiced law for over thirty
years, and who has faced discipline on four different occasions,
it is unfathomable to this Court that Mr. Burton has not
undertaken a close review of his local court rules. Mr. Burton's
violation of a well-established Florida court rule indicates that
his past disruptive conduct is not water under the bridge and he
is not making steps toward reformation. His papers before this
Court fail to suggest as much, and his most recent conduct is
further evidence to this Court that his continued improprieties
are not isolated incidents.
The District of New Jersey is no different than other
jurisdictions in that it requires and expects its attorneys,
including those admitted pro hac vice, to follow the local
practice rules, the federal rules and the state's professional
conduct rules. This Court has no tolerance for an attorney who
blatantly violates a well-established rule and little tolerance
for an attorney who does not familiarize himself with important
court rules, especially an attorney who has been disciplined by
his state bar on four different occasions. ii. Trial Conduct
As if the above listed incidents were not enough for this Court
to have grave concerns about Mr. Burton's admission in this
District, Defendants set forth examples of conduct in the course
of other litigation which are equally troubling. Defendants'
submission includes reference to incidents during a trial in
Broward County, Florida. Although the judge's basis for a
mistrial in the Broward County case included Mr. Burton's closing
arguments, the case appears to have had "various and sundry
problems," the substance and effects of which are disputed by the
parties. (Adkins v. Southeast Toyota Dist., Inc., case no.
94-2422, tr. page 2063.) Although a motion for sanctions was
filed by the defendants in that case, it was later withdrawn with
prejudice. Having reviewed the submission by Defendants and
Plaintiffs with regards to this litigation, the Court finds it
unnecessary to consider the alleged conduct arising from that
litigation in the instant appeal. However, the Court will explore
recent conduct occurring in a matter before the United States
District Court for the Eastern District of New York.
Mr. Burton represented plaintiff Adkins, a former GM
dealer-operator, in a lawsuit against GM and GMAC in 2003 and
2004. Adkins v. General Motors Corp., et al., 03-cv-3613
(E.D.N.Y.). Defendants' counsel in the instant Dalton
litigation represented GM in that matter. Although aware of Mr.
Burton's disciplinary history early in the case, they did not
contest his pro hac vice application. However, Defendants now
contend that their experience with Mr. Dalton during the New York
litigation motivated their opposition to Mr. Burton's pro hac
vice application in this present matter.
Following several depositions in Adkins, defendants contacted
the assigned magistrate judge regarding what they viewed as
improper and unprofessional conduct by Mr. Burton during discovery. The court held a hearing on March 30, 2004, to hear
from the parties following various letter submissions to the
court. (Adkins Hearing Tr. of 3/30/2004.) At the outset of the
hearing, defendants presented Mr. Burton's disciplinary record to
the court. (Id. at 7-8, and 24, lines 1-14.) The court called
attention to the late notice of this history and told defendants'
counsel that the issue should have been brought to the attention
of the court at the time of Mr. Burton's pro hac vice
application. (Id. at 24, lines 9-11.)
Following descriptions of the deposition conduct from an
attorney of each side, the court read portions of deposition
transcripts that it found "consitute[d] a personal attack, [was]
ad hominem, [was] arrogant, and was unbecoming someone who states
they are a professional." (Id. at 73, lines 19-22.) Examples of
comments and exchanges during depositions that the court found
[MR. BURTON to opposing counsel] You remind me of the
kind of person that's sitting there and directing
traffic in the middle of a hurricane.
(Id. at 72, lines 16-18.)
[MR. BURTON to opposing counsel] You know what? Go
back to kindergarten, please.
[OPPOSING COUNSEL] Go back to kindergarten?
[MR. BURTON] Yes. Let me finish asking my question.
When I'm asking a critical question, don't have the
audacity to interrupt me. You have been sitting up
there and acting like a schoolmarm. Please let me ask
(Id. at 73, lines 1-5.)
[OPPOSING COUNSEL to Mr. Burton] Take your seat and
keep your voice down. I won't have you intimidate the
[MR. BURTON] I am not intimidating this witness. I
couldn't intimidate a witness. I thank you. That's
the greatest compliment that you can make.
[OPPOSING COUNSEL] Why don't you stop with the
[MR. BURTON] Then shut up.
(Id. at 74, lines 23-25 to 74, lines 1-6.)
The court found the above remarks "unprofessional" and "uncivil,"
(id. at 75, lines 24-25), and ordered Mr. Burton to issue a written apology to counsel with a
file copy sent to the court. The court also put Mr. Burton on
notice that if his unprofessional conduct continued, the court
would issue an order to show cause why his pro hac vice
admission should not be revoked. (Id. at 76, lines 1-13.) In
response to accusations by defendants that Mr. Burton threw
documents at witnesses, the judge ordered that all future
depositions would be videotaped with the videographer directed to
"show the entire scene, and not just beam in on the witness."
(Id. at 77, lines 4-5.) The court also suggested a procedure
for marking and distributing documents at depositions to prevent
future conflicts between the parties because it appeared from the
deposition transcripts that the attorneys grabbed documents from
each other and from witnesses during depositions. (Id. at 77,
lines 13-21.) Finally, the judge warned Mr. Burton that if he
continued to improperly accuse opposing counsel of Rule 11
violations, as he had done during witness Pauline Adkins'
deposition, the court might to impose Rule 11 sanctions on him
for improper claims. (P. Adkins Dep., page 101, line 4; Adkins
Hearing Tr. of 3/30/2004, page 78, lines 1-9.) Plaintiffs'
submissions to this Court "acknowledge? that the matters cited
by [the] Magistrate Judge [in Adkins] . . . were uncivil and
[Mr. Burton] regrets them." (Pls.' Reply at 9.)
Mr. Burton's most recent conduct in the Eastern District of New
York Adkins litigation is a real concern to this Court for it
shows a continued cavalier attitude toward the court rules and
the privilege of pro hac vice admission. The temporary nature
of pro hac vice admission heightens a court's concerns about an
attorney's prior conduct because the attorney has little or no
incentive to build a strong reputation with the court or the
local legal community. Indeed, inhibitions that may arise from
long-term admission to a court do not exist for an attorney
admitted only for one case. This concern is further heightened
when an attorney practicing under pro hac vice admission poses problems for the court, as Mr.
Burton did in the Eastern District of New York.
This Court's serious reservation about Mr. Burton's ability to
practice in this district without causing havoc for the court and
for the litigants is not tempered by Mr. Burton's explanations.
His explanations of prior conduct and his responses to recent
allegations do nothing to assure the Court that he appreciates
the significance of his past actions. Indeed, his cavalier
attitude toward his past ethical indiscretions is highlighted by
the explanation he gave to the Eastern District of New York
Magistrate Judge in the Adkins litigation. When questioned
about his suspension from practice, he told the Judge that he
willingly pled to the bar complaint in exchange for time off from
practice: "I insisted upon taking two months off in the summer
when my child was 12 and driving around the country. So I
insisted upon the suspension." (Adkins Hearing Tr. of
3/30/2004, page 43, lines 1-4.) This response hardly constitutes
the display of contrition and recognition that would persuade
this Court that Mr. Burton's shenanigans are behind him. It
appears to this Court that Mr. Burton's past discipline has had
no rehabilitative or deterrent effect, thus the Magistrate Judge
in this matter had more than an adequate basis to substantiate
her decision to deny Mr. Burton's pro hac vice admission.
B. Legal Conclusions "Contrary to Law" Standard
i. "New Requirement"
The decision by the magistrate judge was a discretionary one.
See N.J. Fed. Prac. R. 101.1(c). With such a standard in place,
and the admittedly scant case law, it should come as no surprise
that the parties present differing interpretations of what they
view as the requirements for pro hac vice admission. However, this Court is nonetheless
surprised that Plaintiffs continue to assert that the only
requirement for pro hac vice admission to this Court is to be a
bar member in good standing, not under suspension or disbarment.
Despite quoting the rule and its discretionary language in their
appeal papers, Plaintiffs argue that "[n]othing in the Local Rule
suggests any requirement that an attorney seeking pro hac vice
make any disclosure or representation beyond the fact that he or
she is a member in good standing" (Pls.' Appeal at 4.) Further,
Plaintiffs assert that Magistrate Judge Bongiovanni's Order was
clearly erroneous because it "implicitly adds a new requirement
in Local Civil Rule 101.1(c)(1)." (Id. at 3.)
Plaintiffs are correct that the rule does not require
anything more, however, this Court disagrees with the assertion
that the rule does not suggest anything more. The discretionary
language indeed does suggest that the court may consider more
than just the attorney's good standing, and as such invites
applications to include or opposition to cite conduct which may
be of interest to the Court. Judge Bongiovanni did not deny Mr.
Burton's application because he failed to disclose his
disciplinary history. She may have "criticized" (as Plaintiffs
suggest) his failure to disclose the disciplinary history he knew
would be brought to the Court's attention by Defendants. However,
she did not "implicitly add a new requirement" to the rule and
nothing about her order indicates as much.
ii. "Unclear" decision
Plaintiffs next argue that the Magistrate Judge's ruling was
erroneous because she did not state whether she accepted any
assertions made by Defendants and that her conclusion that Mr.
Burton's "collective ethical history" warrants denial was
unclear. This Court, having reviewed the record, finds nothing
unclear about what Judge Bongiovanni meant by Mr. Burton's collective ethical history. Mr. Burton has been disciplined four
times by the Florida Bar. His prior discipline, the first
incident which arose 14 years after he was admitted to the Bar,
includes harassment of opposing parties, improper deposition
conduct, sexual relations with a client, and improper management
of client funds. He currently faces a bar complaint for an
admitted violation of a rule available in three separate rule
books. A United States District Court in the Eastern District of
New York ordered Mr. Burton to issue an apology to opposing
counsel following improper conduct during discovery. That same
court ordered any depositions involving Mr. Burton be videotaped.
This Court fails to see how the "history" referred to by the
Magistrate Judge could be unclear. This Court finds "collective
ethical history" is an accurate, albeit abbreviated, description
of the reasons for denying Mr. Burton's application.
iii. Notice and Opportunity to Respond
Plaintiffs next argument focuses on the procedural requirements
set forth by the Third Circuit in Johnson, as discussed above.
Plaintiffs accurately state that the Third Circuit's decision in
Johnson provides that "some type of notice and an opportunity
to respond are necessary when a district court seeks to revoke an
attorney's pro hac vice status." 629 F.2d at 303. The Court first
notes that Mr. Burton's application for pro hac vice admission
was denied, and denied in the early stages of litigation. This
situation is distinguishable from the revocation in Johnson
where the revocation came following trial. Further, motion
practice essentially provides the same procedural steps set forth
Mr. Burton was clearly on notice from the time he applied for
pro hac vice status. First and foremost, Plaintiffs made a
motion to the Court for consideration of his admission pro hac
vice, evidence that he knew his application would undergo
review. At that time, Plaintiffs' moving papers indicated that Defendants did not consent to his
application, evidence that they knew Mr. Burton's application
would be contested. Defendants filed opposition papers to the
application, evidence that Mr. Burton was on notice of the items
considered objectionable about his past history.
Plaintiffs argue that Mr. Burton was entitled to "notice of the
standard that will be applied to his conduct." Id. at 304. As
discussed above, there is no one formula for considering a pro
hac vice application. Indeed, as Judge Bassler of this District
stated in an article addressing the "erosion of civility" in the
legal profession, "Incivility may be akin to pornography in that
while it may be hard for us to define, we all know it when we see
it." W.G. Bassler, Lost Cause or Last Chance for Civility, N.J.
Law J., July 10, 1995, at 23. Defendants' papers articulated, in
detail, the various concerns and issues of Mr. Burton's history
that they thought the Court should take under advisement. Mr.
Burton was on notice as to which items might be considered in
connection with his admission to this Court. Indeed, in the
proceedings in the Eastern District of New York, Mr. Burton
admitted that he should have disclosed his prior history: "I do
apologize for something that I should have delineated in greater
detail." (Adkins Hearing Tr. of 3/30/2004, page 43, lines
Next, Mr. Burton had "an opportunity to respond." Following
Defendants' opposition, the Court granted Plaintiffs additional
time to submit reply papers. As previously mentioned, those reply
papers included 260 pages of supporting exhibits. Plaintiffs
assert that Mr. Burton should have been afforded an opportunity
to testify and that he was entitled to a hearing. However, the
Johnson decision clearly states that "a full scale hearing is
not required in every case. All that we mandate is that the
attorney be given a meaningful opportunity to respond to the identified charges." 629 F.2d at 304. The decision to hold a
hearing is within the discretion of the court. Id. Mr. Burton
had ample opportunity to respond.
"Where a magistrate judge is authorized to use his or her
discretion, the decision will only be reversed for an abuse of
that discretion." Cooper Hosp., 183 F.R.D. at 127. This Court
sees no evidence that Judge Bongiovanni abused her discretion in
this regard. The Court had over 260 pages of material from Mr.
Burton and he was given extra time to submit that information.
This Court decides many motions "on the papers." Indeed, issues
and entire cases are decided, at times, without the parties ever
stepping foot into Court. Mr. Burton's pro hac vice admission
does not require an evidentiary hearing.
The above referenced disciplinary history and quoted deposition
exchanges have not been challenged by Mr. Burton as inaccurate.
Therefore, this Court finds that with a full record before her,
Judge Bongiovanni had all that she needed to make a well informed
decision in this matter.
Plaintiffs next argue that Judge Bongiovanni's order is
"contrary to law and clearly erroneous because it provides no
deference or weight to the interests of the client to counsel of
his or her choice and the professional reputation of the attorney
involved." (Pls.' Appeal at 8.) Plaintiffs assert that because
Judge Bongiovanni's order did not reference consideration of this
factor, her order is contrary to law. However, Plaintiffs cite no
authority for this proposition or for the proposition that a
Plaintiff's choice of attorney outweighs the Court's own interest
in overseeing the high standards of attorney conduct in its
In reviewing application for pro hac vice admission, this
Court must look out for the best interest of the litigants and
attorneys that appear in this Court. Indeed, this includes the
very Plaintiffs in this matter who submitted Mr. Burton's application.
As the gatekeeper to out-of-state attorneys, the Court can and
should consider an attorney's past conduct to determine if
troubling events in the attorney's history create reasons to deny
pro hac vice admission. As a result, a party may find itself
unable to have the out-of-state attorney as their counsel in the
matter before the Court. The local rule clearly states that the
admission is discretionary and should Mr. Burton wish to have
automatic admission, he is not prevented from undertaking the
necessary steps to become a member of the New Jersey bar.
This Court will not decide whether or not Judge Bongiovanni
paid due consideration to the interests of plaintiff having the
counsel of his choice, as Plaintiffs have failed to convince this
Court that such an articulation in her order is required. The
Court recognizes that Mr. Burton provides valuable experience
with the workings of Defendants' company, however, this advantage
simply does not wipe his slate clean. He is subject to the same
scrutiny that this Court applies to every lawyer seeking
admission to this Court.
This case is in the early stages of litigation, having just
been filed in February, and Plaintiff currently has at least
eight attorneys of record. Although dispositive motions are
pending, the action is currently stayed pending the outcome of
this very appeal, indicating that this Court has indeed
considered the parties' interests in this matter.
v. Lesser Sanctions
Finally, Plaintiffs argue that the magistrate judge's order is
contrary to law and clearly erroneous because there were lesser
sanctions or measures she could have invoked. Nothing in the case
law or the rules requires this Court to take a "wait and see"
approach. The Court realizes that in the Adkins litigation,
videotaped depositions were used to curb future disruptive conduct. This Court is not a babysitter. The Court sees no reason
why litigation should begin with the Court bearing the additional
responsibility of assuming such a role in connection with
discovery or why the parties should bear additional costs
because their attorneys cannot be trusted.
Plaintiffs point to Mruz v. Caring, Inc., 166 F. Supp. 2d 61
(D.N.J. 2001), in support of their argument that alternative
"sanctions or measures" are available. However, in Mruz, the
district court reversed a magistrate judge's decision to revoke
an already issued pro hac vice application in a case that was
in its third year of litigation. Id. at 70-71. In that case,
the magistrate judge sought to impose sanctions on the
out-of-state attorney and chose revocation of the attorney's pro
hac vice status. In the instant case, the Magistrate Judge did
not seek to impose sanctions on Mr. Burton. Mr. Burton asked to
be admitted, and his motion was denied. This Court refuses to
ignore a pattern of unacceptable attorney conduct that requires
necessary attention and appropriate action.
C. "Collective Ethical History"
As stated in this District before:
This court is growing increasingly distressed by the
deteriorating level of civility and decorum that has
long been the hallmark of this estimable profession.
It is the obligation of this court to protect and
nurture the vestiges of professional legal conduct so
that the practice of law is once again not only
socially and commercially valuable, but also
enjoyable and worthy of esteem. This court takes this
obligation seriously, and conduct before the court
that violates the principles of courtesy and
professionalizm embodied in the Rules of Professional
Conduct will not be tolerated.
Mruz, 166 F. Supp 2d at 71. Although granted liberally,
admission pro hac vice is a privilege, not a right, and is granted at the discretion of the Court. Mr.
Burton appeals the magistrate judge's conclusion that his
"collective ethical history" prevents his application to practice
in this Court. This history includes two suspensions, one
reprimand, one admonishment, a pending bar complaint, and
litigation conduct in a recent case before the Eastern District
of New York that required court intervention.
Mr. Burton not only fails to take responsibility for his past
conduct, but he also fails to provide assurance to this Court
that he understands his conduct must change. Mr. Burton's
continued improper conduct toward witnesses, litigants and
opposing counsel is evidence to this Court that Mr. Burton does
not meet the standards required for admission to this District.
His lack of courtesy and decorum, repeated and documented over
his long professional history, convince this Court that the
Magistrate Judge made a well-reasoned decision when she denied
Mr. Burton's pro hac vice application.
This Court finds nothing clearly erroneous or contrary to law
about Magistrate Judge Bongiovanni's June 24, 2005 Order. Her
decision is well-supported by the facts and the law. Therefore,
this Court affirms the June 24, 2005 Order and the decision to
deny Mr. Burton's pro hac vice application. IV. Conclusion
Having considered the papers submitted by the parties, the
Court affirms Judge Bongiovanni's June 24, 2005 Order. An
appropriate form of order will be filed herewith.