My latest ethics column for the publication of the American Inns of Court, The Bencher, appears in the current edition regarding the titular topic, and is reprinted on these pages with the courtesy of the publisher. (I have been writing the ethics column for more than 20 years for The Bencher.)

Delaware Supreme Court Clarifies Pro Hac Vice Standards

By Francis G.X. Pileggi, Esquire

A recent ruling from the Delaware Supreme Court reversed a trial court’s revocation of a non-Delaware attorney’s admission pro hac vice. In the process, Delaware’s high court clarified for Delaware trial courts and lawyers the appropriate standard for pro hac vice admissions and revocations.

Overview of Decision

In July 2020, a defamation action was filed in Delaware Superior Court alleging that published articles falsely accused the plaintiff of “colluding with Russian agents to interfere with the 2016 presidential election.” Page v. Oath Inc., Del. Supr., No. 69, 2021, Order at 1 (Jan. 19, 2022). The same day as the ruling on the pro hac vice issue, the Supreme Court issued a decision on the substantive appeal in the defamation action.

The Superior Court sua sponte issued a rule to show cause why the admission pro hac vice of the non-Delaware lawyer should not be revoked—based on conduct that the trial court on its own observed as having taken place in other jurisdictions. The non-Delaware lawyer responded by explaining that there was no finding by any court in any other state of either litigation misconduct or other wrongdoing in the matters the trial court referred to in its rule to show cause.

Notwithstanding his rejection of any basis for the court to revoke his pro hac vice admission, the non-Delaware attorney voluntarily withdrew his application for pro hac vice admission and his appearance in the case. Nonetheless, without a hearing, the trial court revoked his pro hac vice admission.

Delaware’s high court was troubled by the trial court’s description of the non-Delaware lawyer’s actions in other states as wrongful, even though the courts in those states did not make any such findings. The trial court also cast aspersions on the non-Delaware attorney’s character with vituperative allegations and reference to what the trial court thought was the non-Delaware lawyer’s role in national political events—an issue not included in the rule to show cause.

Highlights of the Supreme Court’s Decision

The appellate review standard for the revocation of a pro hac vice admission under Superior Court Rule 90.1(e) is abuse of discretion. Because the revocation ruling by the trial court was “based on factual findings for which there was no support in the record,” the Supreme Court determined that the trial court’s decision was an abuse of discretion.

The high court reasoned that even though a trial court is not powerless to act when a lawyer admitted pro hac vice is accused of serious misconduct in another state:

“…when, as here, the allegations of misconduct in another state have not yet been adjudicated, there is no assertion that the alleged misconduct has disrupted or adversely affected the proceedings in this State, and the lawyer agrees to withdraw his appearance and pro hac vice admission, it is an abuse of discretion to preclude the lawyer’s motion to withdraw in favor of an involuntary revocation of the lawyer’s admission.”

The Supreme Court’s reasoning was also buttressed by its finding that despite the trial court’s statement that the trial court’s decision was not impacted by its “conjecture” that the non-Delaware lawyer’s conduct had “precipitated the traumatic events” that occurred in Washington, DC, in January 2020: The trial court’s “willingness to pin that on [the non-Delaware lawyer] without any evidence or giving [the non-Delaware lawyer] an opportunity to respond is indicative of an unfair process.”

The trial court also held that the denial of a request for injunctive relief in a Georgia case the non-Delaware lawyer was involved in was, in the trial court’s estimation, “textbook frivolous litigation.” To the contrary, the Supreme Court explained that a determination of the absence of factual or legal support for injunctive relief is not the equivalent of a finding that a complaint is frivolous. Rather, the Supreme Court instructed that “our own ethical rules, by prohibiting a lawyer from asserting claims ‘unless there is a basis in law for doing so that is not frivolous,’ implicitly recognize that a claim ultimately found to lack a basis in law and fact can nonetheless be non-frivolous.”

Although it was not stated in the ruling, this author’s insight suggests that additional support for the Supreme Court’s decision might also be found in a recent opinion of Delaware’s high court that underscored the general rule that only the Delaware Supreme Court has authority to regulate the professional conduct of Delaware attorneys and to enforce the Delaware rules of legal ethics.