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DALTON v. GENERAL MOTORS CORP.

August 16, 2005.

JAMES R. DALTON, et. al, Plaintiffs,
v.
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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.

I. BACKGROUND

  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 Defendants' opposition.

  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 law.

  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 application.

  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 Court.

  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.

  III. DISCUSSION

  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 extensive decision.

  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 ...


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