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E-Alert Case Updates

Court Errs by Failing to Observe Due Process Rights of Pro Hac Vice Litigants

Belue v. Leventhal
Nos. 10-1300, 10-1438 (4h Cir. 2011)

by Colleen K. O’Brien, Law Clerk
Semmes, Bowen & Semmes (

This case explored the revocation of pro hac vice bar admission in connection with a putative class action filed in a South Carolina District Court. There were several similar class actions filed around the country, and the lead national counsel handling many of the cases hailed from a Miami law firm. This counsel, plus two other attorneys from his firm, were admitted pro hac vice to defend the instant case filed in South Carolina. Pro hac vice status allowed these attorneys to practice temporarily in South Carolina in connection with this case, alongside local counsel, although they were not licensed in the state.

The revocation of the attorneys’ pro hac vice status arose when the defense moved to stay the class action proceedings in the South Carolina court based on settlement negotiations in a related Arkansas class action. According to the Defendants, the Arkansas settlement was a global resolution of all the pending cases, including the South Carolina case. The trial court denied the Defendants’ Motion to Stay the class-related proceedings, and instead urged the Plaintiffs to quickly file for class certification before the Arkansas court approved the settlement. To the Court, the settlement was “low” compared to similar cases and was potentially collusive. The Court expedited the class certification proceedings, and ordered the Defendants to file an opposition to the certification in one week’s time. The Defendants filed an opposition, as well as a motion to recuse the judge.

At the motions hearing on the class certification and recusal, the Court threatened to disbar the attorneys, but did not provide specific grounds as to why. The Court scheduled a revocation hearing several days later, and stated its grounds for revoking the attorneys’ pro hac vice status was because: 1) the attorneys filed the class certification opposition brief several hours past the Court’s stated deadline; 2) the defense did not confer with Plaintiffs’ counsel before filing their motions as required by local rule; and 3) the Defendants filed their motions for opposition to class certification in bad faith where they had already conceded in the Arkansas case that nationwide class certification was proper. The revocation hearing was brief and according to the record, the attorneys had little opportunity to respond.

On appeal, the Fourth Circuit reversed the Revocation Order. To the Court, although not stated, the likely reason for the revocation was due to the motion to recuse filed by the defense. Further, in revoking their pro hac vice admission, the trial court erred by failing to provide the attorneys with their due process rights of notice and hearing. Here, the notice was lacking where the court failed to “provide an appropriate list of reasons” for its threat of disbarment or recusal and failed to indicate the “specific behavior” that would be discussed at the revocation hearing. The reasons for the Court’s decision to revoke their status were given only at the revocation hearing which was “too little, too late”. Moreover, the Court gave the attorneys no opportunity to “mount a thorough defense at the hearing” where it “essentially prevented them from speaking.” In sum, while the law does not guarantee extensive due process in pro hac vice matters, here, the Court failed to give the attorneys even the bare minimum. Although the case had since resolved, the Court vacated the Revocation Order where the attorneys claimed that it injured their reputations.