Courts Prepare for a Major Disaster

[Originally published in NYPRR June 2011]

Responding to recent news events and without much fanfare, The Court of Appeals on Jan. 26, 2011 issued a notice to the Bar entitled Provision of Legal Services Following a Major Disaster. The notice reads:

Effective Feb. 9, 2011, the Court of Appeals has amended the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law, adding a section relating to attorney practice in New York following a major disaster in New York or in another United States jurisdiction.

The order, issued pursuant to Section 53 of the Judiciary Law, amended Section 520.11 of the Rules of the Court of Appeals, the Section providing for admission pro hac vice to the courts of New York. Paragraph (d)(1) of the amendment requires that the governor of New York, or of another state, first declare a state of disaster or emergency and then, that the Court of appeals “determine whether an emergency exists affecting the justice system.”

Paragraph (d)(2) provides for legal services by out-of-state lawyers to residents of New York who are (i) affected by a state of disaster or emergency occurring in New York or (ii) displaced by a declared state of disaster or emergency in another jurisdiction. In both cases, an out-state lawyer may render the services on a temporary basis, provided the services are rendered pro bono and are “assigned and supervised through an established not-for-profit bar association in New York or an organization described in subdivision 7 of section 495 of the Judiciary Law.”

Paragraph (d)(3) of the amendment provides for temporary legal services in New York by an out-of-state lawyer in connection with a major disaster in the locale in which the lawyer practices, provided the services are on a temporary basis and are “in association with an attorney admitted and in good standing in New York,” and provided the out-of-state lawyer satisfies four other conditions.

It may be instructive to imagine and consider the circumstances under which a major disaster in New Jersey, for example, would cause New Jersey lawyers to fall under the scope of the amendments.

We reproduce Rule 520.11 in its entirety. The amendments are in bold type.

520.11 Admission Pro Hac Vice

(a) General. An attorney and counselor-at-law or the equivalent who is a member in good standing of the bar of another state, territory, district or foreign country may be admitted pro hac vice:

(1) In the discretion of any court of record, to participate in any matter in which the attorney is employed;

(2) In the discretion of the appellate Division, provided applicant is a graduate of an approved law school, to advise and represent clients and participate in any matter during the continuance of the applicant’s employment or association with an organization described in subdivision 7 of section 495 of the Judiciary Law or during employment with a District attorney, Corporation Counsel or the attorney General, but in no event for longer than 18 months.

(b) New York Law Students. A graduate student or graduate assistant at an approved law school in New York State may be admitted pro hac vice in the discretion of the appellate Division, to advise and represent clients or participate in any matter during the continuance of applicant’s enrollment in an approved law school in New York State as a graduate student or graduate assistant, or during applicant’s employment as a law school teacher in an approved law school in New York State, if applicant is in good standing as an attorney and counselor-at-law or the equivalent of the bar of another state, territory, district or foreign country and is engaged to advise or represent the client through participation in an organization described in subdivision 7 of section 495 of the Judiciary Law or during employment with a District attorney, Corporation Counsel or the attorney General, but in no event for longer than 18 months.

(c) Association of New York Counsel. No attorney may be admitted pro hac vice pursuant to paragraph (1) of subdivision (a) to participate in pre-trial or trial proceedings unless he or she is associated with an attorney who is a member in good standing of the New York Bar, who shall be the attorney of record in the matter.

(d) Provision of Legal Services Following Determination of Major Disaster.

(1) Determination of existence of major disaster. Upon the declaration of a state of disaster or emergency by the governor of New York or of another jurisdiction, for purposes of this subdivision, this Court shall determine whether an emergency exists affecting the justice system.

(2) Temporary pro bono practice following the determination of a major disaster. Following a determination by this Court that persons residing in New York are (i) affected by a state of disaster or emergency in the entirety or a part of New York or (ii) displaced by a declared state of disaster or emergency in another jurisdiction, and such persons are in need of pro bono services and the assistance of attorneys from outside of New York is required to help provide such services, an attorney authorized to practice law in another United States jurisdiction may provide legal services in New York on a temporary basis. Such legal services must be provided on a pro bono basis without compensation from the client, or expectation of compensation or other direct or indirect pecuniary gain to the attorney from the client. Such legal services shall be assigned and supervised through an established not-for-profit bar association in New York or an organization described in subdivision 7 of section 495 of the Judiciary Law.

(3) Other temporary practice following the determination of a major disaster. Following the determination of a major disaster in another United States jurisdiction after such a declaration of a state of disaster or emergency and its geographical scope have been made by the governor and a determination of the highest court of that jurisdiction that an emergency exists affecting the justice system an attorney who has been authorized to practice law and is in good standing in that jurisdiction and who principally practices in that affected jurisdiction may provide legal services in New York on a temporary basis in association with an attorney admitted and in good standing in New York. The authority to engage in the temporary practice of law in New York pursuant to this paragraph shall extend only to attorneys who principally practice in the area of such other jurisdiction determined to have suffered a major disaster causing an emergency affecting the justice system and the provision of legal services. Those legal services shall be limited to:

(i) representing clients with respect to matters that the attorney was handling prior to the disaster, and

(ii) new matters in the area affected by the disaster that the attorney could have handled but is unable to do so because

(a) the attorney’s ability to practice in the jurisdiction affected by the disaster has been limited by the disaster, and/ or

(b) the client has temporarily relocated from the disaster area to another jurisdiction because of the disaster.

(4) Duration of authority for temporary practice. The authority to practice law in New York granted by paragraph (2) of this subdivision shall end when this Court determines that the conditions caused by the major disaster in New York have ended except that an attorney then representing clients in New York pursuant to paragraph (2) is authorized to continue the provision of legal services for such time as is reasonably necessary to complete the representation, but the attorney shall not thereafter accept new clients. The authority to practice law in New York granted by paragraph (3) of this subdivision shall end 60 days after either the governor or this Court declares that the conditions caused by the major disaster in the affected jurisdiction have ended.

(5) Court appearances. The authority granted by this subdivision does not include appearances in court except pursuant to subdivision (a) of this section.

(6) Admission and Registration requirement. An attorney may be admitted pro hac vice in the discretion of the Appellate Division, provided the applicant is a graduate of an approved law school and is not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, to provide legal services in New York pursuant to paragraphs (2) or (3) of this subdivision. Such applicant must file a registration statement with the Office of Court Administration before the commencement of the provision of legal services. The application shall be in a form prescribed by the Appellate Division and the registration statement shall be in a form prescribed by the Office of Court Administration.

(7) Notification to clients. Attorneys authorized to practice law in another United States jurisdiction who provide legal services pursuant to this subdivision shall inform clients in New York of the jurisdiction in which they are authorized to practice law, any limits of that authorization, and the limitations on their authorization to practice law in New York as permitted by this subdivision. They shall not state or imply to any person that they are otherwise authorized to practice law in New York.

(e) Professional Responsibility Requirements. An attorney admitted pro hac vice pursuant to this section:

(1) shall be familiar with and shall comply with the standards of professional conduct imposed upon members of the New York Bar, including the rules of court governing the conduct of attorneys and the Rules of Professional Conduct; and

(2) shall be subject to the jurisdiction of the courts of this State with respect to any acts occurring during the course of the attorney’s participation in the matter.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

Admission Pro Hac Vice NYPRR Editor