Opinion
02626/02.
Decided November 7, 2002.
Mark T. Keegan, Esq., 24 Wappanocca Avenue, Rye, New York 10580, Attorney for Plaintiff.
Hannah Schwarzchild, Esq., Willig Williams Davidson, 1845 Walnut Street, 24th FL, Philadelphia, PA 19103.
Roy Barnes, P.C., 258 Saw Mill River Road, Elmsford, New York 10523, Attorney for Defendants.
Hannah Schwarzchild, Esq., a member of the Bars of California, Pennsylvania and New Jersey moves to appear pro hac vice to argue or try the underlying case on behalf of defendants and to assist in pretrial litigation. Plaintiff opposes the application and focuses upon the rule of the Appellate Division, Second Department ( 22 NYCRR 690.3 [a]) which appears to limit participation of pro hac vice counsel to trial or argument thereat.
The cited rule states in relevant part:
"An attorney . . . from another state may be admitted pro hac vice to participate in the trial or argument of a particular cause . . . upon application to and in the discretion of the court in which the cause is pending."
This rule was patterned after former rule 22 NYCRR 520.9 (e) (1) of the Court of Appeals, which used similar language, and is also found in the rules of the Appellate Division, First Department ( 22 NYCRR 602.2 [a]) and Third Department ( 22 NYCRR 805.3 [a]). It appears that the Appellate Division, Fourth Department used the past rule and now uses the current rule of the Court of Appeals. Johnson v. Mesch Engineering P.C., 212 AD2d 970 (4th Dep't 1995); 22 NYCRR 1000.13 (1); cf. 22 NYCRR 1022.9.
In Largeteau v. Smith, 197 AD2d 832 (3rd Dep't 1993) the Appellate Division, Third Department in reliance upon the then extant Court of Appeals rule in 22 NYCRR 520.9 (e) (1), which had the language "to participate in the trial or argument", and its own rule of similar import, held that pro hac vice counsel could not participate in pretrial discovery. The Court specificially rejected a contrary ruling in 18 Int. v. Interstate Exp., 116 Misc.2d 66 (Supreme Ct. New York 1982) (Saxe, J.).
Thereafter, the Appellate Division, Fourth Department in Johnson v. Mesch Engineering P.C., supra, 212 AD2d 970 (4th Dep't 1995) in a broad reading of the former applicable rule of the Court of Appeals ( 22 NYCRR 520.9 [e] [1]) rejected the holding of the Appellate Division, Third Department in Largeteau v. Smith, supra, and held that pro hac vice counsel may participate in pretrial litigation. Also see Bivens v. American Baler Co., 166 Misc.2d 198 (Supreme Ct. Kings 1995).
Subsequently, the Court of Appeals revised its rule, now found at 22 NYCRR 520.11 (a), to provide for admission pro hac vice by a court of record to an attorney "to participate in any manner in which the attorney is employed". The Supreme Court is a court of record. Judiciary Law § 2 (5). In People v. Leslie, 232 AD2d 94 (1st Dep't 1997) the Appellate Division, First Department adopted the rationale of Johnson v. Mesch Engineering P.C., supra, and declined to follow Largeteau v. Smith, supra, particularly since the Court of Appeals had revised its rule in point.
This Court finds itself in agreement with the greater weight of authority on the subject (see, 1A Carmody-Wait 2d, Officers of Court, § 3:163) and holds that the relevant regulations permits an attorney admitted pro hac vice to participate in pretrial discovery.
The applicant has met the traditional requirements for pro hac vice admission (see, Ann. 20 ALR 4th 855 [1983], Attorney's Right to Appear Pro Hac Vice) and the application is granted.
Submit order on notice.