Taxation & Estate Planning

4th DCA: Probate court's discretion to vacate a prior pro hac vice order is NOT absolute

By Juan C. Antúnez

Brooks v. AMP Services Ltd., --- So.2d ----, 2008 WL 373423(Fla. 4th DCA Feb 13, 2008)

At issue in the linked-to case was whether a probate court could vacate its prior order granting a NY attorney's pro hac vice motion for purely technical reasons that had nothing to do with intentional misconduct by the NY attorney and in no way adversely impacted that administration of justice here in Florida.  Although the answer should be an obvious "no", the probate court ruled the other way.  Here's how the 4th DCA explained its rationale for quashing the probate court's order:

Here, the judge revoked Brooks' admission based only on his failure to corroborate his good standing [in NY] before applying [in FL], an act which did not affect the administration of justice or disrupt any proceedings.  .  .  .

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“The right of an attorney of another state to practice is permissive and subject to the sound discretion of the court to which he applies for the permission. The right to revoke this permission is inherent in the right to grant it.” Parker v. Parker, 97 So.2d 136, 137 (Fla. 3d DCA 1957). Certainly a trial court's discretion to deny a motion to appear pro hac vice, or to revoke such admission, is quite broad. See Huff v. State, 569 So.2d 1247, 1249 (Fla.1990); Jernigan, 751 So.2d at 681. Nevertheless, it is not absolute, and must be balanced by a party's right to representation by counsel of choice.  .  .  .

The trial court apparently accepted Brooks' explanation that he had no reason to believe he did not continue to be in good standing; it did not find he had committed any intentional misconduct, refusing to sanction him even with the imposition of a fine. Its vacation of his status was merely for a technical reason which in no way adversely impacted the administration of justice. Even if it was appropriate technically to vacate Brooks' prior admission due to his lack of good standing on July 11, the trial court should have accepted his ore tenus motion to appear pro hac vice on August 29, when that deficiency no longer applied. The trial court's refusal to do so did not serve the ends of justice and we conclude that it constituted a departure from the essential requirements of law under the facts of this case.

As a bonus point to this blog post, readers should note that that the Florida Supreme Court has provided a suggested form of pro hac vice motion in Fla. R. Jud. Admin. 2.510.  Counsel should always use the court-suggested form.

Full post as published by Florida Probate Litigation Blog on March 18, 2008 (boomark / email).