SECOND DIVISION BARNES, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
June 20, 2013
In the Court of Appeals of Georgia A12A2335. FORD MOTOR COMPANY et al. v. YOUNG et al.
MCFADDEN, Judge.
Attorneys Alan Thomas and Paul F. Malek appeal an order revoking their
admission to practice as trial counsel pro hac vice in this product liability wrongful
death case. They argue that their appeal is not moot, even though the underlying case
has settled, and that they have standing to appeal, even though they were not parties
below. They also argue that the trial court erred by considering the Georgia Rules of
Professional Conduct and by revoking their admissions. Finally, they argue that they
were entitled to notice and a hearing before the court revoked their admissions. We
agree with Thomas and Malek that the issue of the revocation of their admissions pro
hac vice is not moot and that they have standing to appeal. We hold that the trial court
properly considered the Georgia Rules of Professional Conduct. But we agree with Thomas and Malek that they were entitled to notice and an opportunity to be heard
before the trial court revoked their admissions. We therefore vacate the trial court’s
order and remand the case for the court to allow the attorneys such due process.
Consequently, we do not address the attorneys’ argument that the evidence was
insufficient to support the revocations.
The parents of Donald R. Young III filed this product liability action against
Ford Motor Company after their son was killed when the Ford Explorer in which he
was a passenger ran off the road and rolled over. Malek and Thomas are Alabama
attorneys, and the Cobb County State Court granted their applications for admission
pro hac vice to represent Ford in the litigation.
In the course of discovery, plaintiffs’ counsel served Ford with a request for
production of documents, asking for the production of any insurance policies that
would be applicable in the case. According to the trial court, Ford “failed to disclose
the applicable insurance policies, did not object, and never supplemented its response
to disclose any insurance policies.” Rather, it responded that Ford had sufficient
resources to satisfy any judgment that reasonably could be expected to be awarded
as damages.
2 The parties prepared a consolidated pretrial order. Section four of the pretrial
order listed the individuals and entities with whom the parties would qualify the jury.
The plaintiffs included in that listing “[a]ny insurer of Defendant Ford Motor
Company,” but counsel for Ford struck through that phrase. Ford explained that it
“object[ed] to any reference to an alleged insurer of Ford. Ford has sufficient
resources to satisfy any judgment that reasonably could be expected to be awarded
as damages in this action, if any.”
During pretrial hearings, as the parties and the trial court reviewed the pretrial
order, Ford’s local counsel and Thomas objected to the plaintiffs’ request that the jury
be qualified as to any insurer of Ford. Thomas specifically repeated the position that
“Ford Motor Company essentially is self-insured to a point that it would satisfy any
judgment in this case.” The court explained that the issue was not whether Ford had
sufficient resources to pay a judgment, but the identity of Ford’s insurers so that the
jury could be qualified as to anyone who had a financial interest at stake. When
pressed further, Thomas said that he could not state that Ford would not make an
insurance claim. He agreed to research the issue so that he could make a definitive
statement on the record before the jury was qualified.
3 Voir dire was scheduled for the next week. According to the trial court, before
voir dire began, Thomas again stated there was no insurance, but the statement was
not made on the record. After an entire day of voir dire, the following colloquy
occurred:
PLAINTIFFS’ COUNSEL: There’s one other issue if we’re moving on. This morning, when we talked about the insurance, you were going to make Mr. Thomas make a statement on the record about Ford’s insurance coverage.
THE COURT: Yes. You can go ahead. I don’t think that we got that on the record, did we, Madam Court Reporter?
PLAINTIFFS’ COUNSEL: No.
COURT REPORTER: No, ma’am.
THOMAS: No. The question had to do with insurance, Your Honor. I made inquiries over the weekend. My understanding is, just consistent with our discovery responses in here, that there is no insurance that would be applicable to satisfy a judgment in this case. And, as we said – I’ve got the exact language in the discovery responses, but that it would be inappropriate to qualify as to whatever this insurance policy was – that I still haven’t seen yet.
THE COURT: And I’ll follow up with that. But the [c]ourt then, based on the representation of Mr. Thomas, as an officer of the court, and he is able to bind his client, then, if any issue as to insurance comes up in the future, it would be a fatal error, because it was a legal challenge for cause that they were not qualified as to that. Thank you.
4 The next day, before the parties began to strike the jury, plaintiffs’ counsel
informed the court that Thomas had notified plaintiffs’ counsel that Ford did have
applicable insurance. The court stated, “Mr. Thomas stood here and you represented,
on the record on behalf of Ford, and I made it clear that if you then tried to use
insurance or you wanted to invoke insurance that it would be a mistrial. I’ve
dismissed jurors, I’ve let people go.” Local counsel for Ford explained, “We kind of
dug into this a little bit further.” The court responded,
Well, we had pretrial hearings on June, I believe, 6th and 7th, and then again, maybe on the 8th. And, at that time, the court instructed Ford to provide that information on the day we were to begin striking the jury, and to be certain. And I told Mr. Thomas, at that time, along with the other attorneys, what the consequences would be and Mr. Thomas assured the court that he would find out that answer. And he represented yesterday morning that he had inquired and he had found out that information.
Thomas explained,
As I said yesterday, in our discovery responses, we’re clear that Ford has sufficient resources to satisfy any judgment that would reasonably be expected to be awarded as damages in this action. We had the discussion yesterday. I checked. That was still correct. . . . Through our discussions yesterday, Your Honor, I put my understanding of it on there, but during
5 the discussions we made sure, Your Honor, and [local counsel] checked into it, and this is absolutely correct.
The only issue is whether there may be excess coverages that are very complicated and might kick in at some point and time, which we would not anticipate in this case. But, to be perfectly honest about it, because we wanted to make sure that before this jury was empanelled we let the court know exactly, as best we could, what the issues were.
Local counsel clarified that Ford was self-insured up to $25 million but six policies
of excess coverage could be at play. (It was later determined that significantly more
policies could potentially cover the judgment.)
Thomas said that he had not intentionally misled the court. He explained that
he learned by email that morning of the insurance, and that he then promptly advised
plaintiffs’ counsel and the court. Malek, the other Alabama attorney, explained that
after the pretrial hearing, he and Thomas made a “good faith inquiry” with Ford,
which responded that “there was no insurance that [it] believed would be responsive
to the concerns of this case and applicable to this case.” Malek stated that he and
Thomas did not know the information, had made efforts to obtain it, and had not
made any knowing misrepresentation to the court.
6 The court declined to hold Thomas in contempt at that time. Counsel for
plaintiff raised the issue of Thomas’s pro hac vice admission. The court orally
revoked both attorneys’ admissions, and later reduced its order to writing. It found
that the continued pro hac vice admissions “may be detrimental to the prompt, fair
and efficient administration of justice,” and that Malek and Thomas had violated
Georgia Rules of Professional Conduct 3.3, Candor Toward the Tribunal, and 3.4,
Fairness to Opposing Party and Counsel. Because the trial court had not qualified the
jury pool as to Ford’s insurers, the court declared a mistrial and ordered as a sanction
that Ford could not contest the plaintiffs’ assertion that it had failed to adequately
warn consumers of the danger of a seatbelt during a rollover accident in a Ford
Explorer. The plaintiffs and Ford settled and dismissed the case, and Thomas and
Malek filed this appeal from the order revoking their pro hac vice admissions.
1. Jurisdiction.
“This [c]ourt has a duty to inquire into its jurisdiction to entertain each appeal.”
Hammonds v. Parks, 319 Ga. App. 792, 793 (2) (735 SE2d 801) (2012) (citation
omitted). This case presents two jurisdictional issues: whether Thomas and Malek
have standing to appeal and whether the appeal is moot because of the settlement and
7 dismissal of the underlying case. OCGA § 5-6-48 (b) (3); see In the Interest of
M.B.B., 241 Ga. App. 249, 250 (1) (a) (526 SE2d 76) (1999).
(a) The attorneys have standing to appeal the revocation of their pro hac vice
admissions.
Whether an attorney may appeal individually the revocation of his pro hac vice
admission based on a finding that he violated the Georgia Rules of Professional
Conduct is an issue of first impression in Georgia. “Generally, only a party to a civil
case, or one who has sought to become a party as by way of intervention and has been
denied the right to do so, can appeal from a judgment. However, where judgment is
entered against a nonparty, that nonparty becomes a party with standing to appeal.”
Barham v. City of Atlanta, 292 Ga. 375, 376 (1) (738 SE2d 52) (2013) (citations
omitted). Cf. Cooper Motor Lines v. B. C. Truck Lines, 215 Ga. 195 (1) (109 SE2d
689) (1959) (“A party not aggrieved by the judgment of the trial court is without legal
right to except thereto, since he has no just cause of complaint.”) (citations and
punctuation omitted).
The trial court’s order made specific findings that the attorneys had violated the
Georgia Rules of Professional Conduct. These findings may have continuing, adverse
collateral consequences for the attorneys’ careers. See Division (1) (b), infra. We thus
8 conclude that because this order bears directly upon the attorneys’ interests, they are
directly aggrieved by the decision. Weeks v. Independent Sch. Dist. No. I-89, 230 F3d
1201, 1207-1208 (II) (1) (10th Cir. 2000) (attorney was directly aggrieved by
disqualification order finding violation of professional conduct and had standing to
appeal the order); Hammond v. City of Junction City, 168 FSupp2d 1241, 1243-1244
(II) (D. Kan. 2001) (counsel have standing to appeal orders that directly aggrieve
them, including orders disqualifying them as counsel for violation of rules of
professional conduct). Cf. Analytica v. NPD Research, 708 F2d 1263, 1266 (7th
Cir.1983) (declining to decide whether damage to law firm’s reputation was enough
to confer standing because firm clearly had standing to appeal from order directing
it to pay fees for resisting order of disqualification). Consequently, Thomas and
Malek have standing to appeal the order revoking their admissions. Compare
Southwire Co. v. Hull, 212 Ga. App. 131, 132 (441 SE2d 293) (1994) (employee was
not aggrieved by workers’ compensation award and therefore had no standing to
appeal).
(b) The issues in this appeal are not moot.
If the questions presented in an appeal have become moot, then the appeal must
be dismissed. See OCGA § 5-6-48 (b) (3). We conclude that the issue of the
9 revocation of the attorneys’ pro hac vice admissions is not moot even though the
underlying lawsuit has settled and been dismissed.
Although no Georgia court has addressed this precise issue, we have
considered the issue of mootness in an attorney’s appeal of a contempt conviction
against him. In In re Hatfield, 290 Ga. App. 134, 136-137 (1) (658 SE2d 871) (2008),
we held that an attorney’s appeal of his contempt conviction was not moot, even
though he had paid the fine imposed, “because of possible continuing adverse
collateral consequences” the attorney might suffer because of the conviction. Citing
United States v. Schrimsher, 493 F2d 842 (5th Cir. 1974), we observed that an
attorney’s contempt citation could have “serious adverse career consequences” such
as disciplinary action by a bar association, diminished opportunities for appointment
to the bench or to other high office, damage to his reputation in the legal community,
and his ability to attract clients and to represent them effectively. In re Hatfield,
supra, 290 Ga. App. at 136-137.
The Eleventh Circuit United States Court of Appeals has addressed the issue
of whether the revocation of an attorney’s pro hac vice admission is moot when the
underlying case has been dismissed. And although the decisions of the Eleventh
Circuit are not binding on this court, they are persuasive authority. Perez v. State, 283
10 Ga. 196, 198 (657 SE2d 846) (2008). In Kirkland v. Nat. Mtg. Network, 884 F2d 1367
(11th Cir. 1989), the Eleventh Circuit held that the validity of the revocation of an
attorney’s pro hac vice admission, the only issue raised on appeal, was not moot even
though the underlying case had been dismissed. Id. at 1370 (II) (A). The court
observed that “[a]lthough the immediate impact of the revocation of [the attorney’s]
pro hac vice status ended with the case’s dismissal, the brand of disqualification on
grounds of dishonesty and bad faith could well hang over his name and career for
years to come.” Id. (citation, punctuation and footnote omitted.) See also Lasar v.
Ford Motor Co., 399 F3d 1101, 1109 (II) (9th Cir. 2005) (noting that “the prevailing
view [is] that settlement of an underlying case does not preclude appellate review of
an order disqualifying an attorney from further representation insofar as that order
rests on grounds that could harm his or her professional reputation”) (citation and
We find the reasoning of Kirkland, supra, 884 F2d at 1370 (II) (A), persuasive
and consistent with the reasoning of In re Hatfield, supra, 290 Ga. App. at 136-137
(1). Here, the trial court found that the attorneys acted unfairly and with a lack of
candor in violation of the Georgia Rules of Professional Conduct. These findings
11 could affect the attorneys’ careers beyond the context of this case. We therefore
conclude that the issue of the revocation of their pro hac vice admissions is not moot.
2. The attorneys were entitled to notice and an opportunity to be heard before
the trial court revoked their pro hac vice admissions.
The attorneys argue that they were entitled to due process before the court
revoked their admissions. We agree that the attorneys were entitled to notice and an
opportunity to be heard.
Whether an attorney is entitled to due process before his pro hac vice
admission may be revoked is another issue of first impression in Georgia. But the
Eleventh Circuit considered the issue in Kirkland, supra, 884 F2d at 1367. The court
reasoned that admission of an attorney pro hac vice constitutes a “mutually explicit
understanding” sufficient to implicate a Fourteenth Amendment property interest in
the admission. Id. at 1371 (II) (B). See also Perry v. Sindermann, 408 U.S. 593, 601
(II) (92 SCt 2694, 33 LEd2d 570) (1972) (“A person’s interest in a benefit is a
‘property’ interest for due process purposes if there are such rules or mutually explicit
understandings that support his claim of entitlement to the benefit and that he may
invoke at a hearing.”) (citation omitted). Accordingly, the Eleventh Circuit reasoned
that an attorney, once admitted pro hac vice, is entitled to the basic procedural rights
12 of notice and a hearing before the admission can be revoked. Kirkland, supra, at 1371
(II) (B). Compare Leis v. Flynt, 439 U.S. 438 (99 SCt 698, 58 LEd2d 717) (1979)
(holding that an attorney is not entitled to due process in applying for pro hac vice
admission because the “right of an out-of-state lawyer to appear pro hac vice in [a
state] court does not fall among those interests protected by the Due Process Clause
of the Fourteenth Amendment”).
We agree with the Eleventh Circuit that the revocation of an attorney’s pro hac
vice admission implicates a “mutually explicit understanding” sufficient to create a
limited Fourteenth Amendment property interest. Uniform Superior Court Rules 4.4
(b) (3) and 4.4 (b) (4), which concern the admission of attorneys pro hac vice and the
revocation of their admission (and which is applicable to state courts, see Uniform
State Court Rules, Note), establish criteria for the revocation of an attorney’s pro hac
vice admission. And these criteria set the standards that a trial court must follow when
deciding to revoke pro hac vice admission and that an attorney may invoke in
opposing the revocation, thereby creating a limited property interest for due process
purposes. Perry v. Sindermann, 408 U.S. at 601 (II).
The question, then, is what process is due.
13 The fundamental idea of due process is notice and an opportunity to be heard. Due process does not guarantee a particular form or method of state procedure. Rather, . . . due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands.
Hood v. Carsten, 267 Ga. 579, 580 (481 SE2d 525) (1997) (citations and punctuation
omitted). Consistent with the Eleventh Circuit’s holding in Kirkland, we hold that the
trial court must afford the attorneys notice and an opportunity to respond to the
charges against them before revoking their pro hac vice admission. See Kirkland,
supra, at 1372 (II) (B).
As the attorneys observe in their appellate brief, this holding is in accord with
the holdings of numerous courts throughout the United States. See, e.g., Belue v.
Levanthal, 640 F3d 567, 577 (III) (A) (4th Cir. 2011) (“[W]hile it may be true that no
attorney has a due process right to pro hac vice status. . . , once such status is granted,
attorneys must receive some modicum of due process before it is revoked.”) (citations
omitted); Cole v. United States Dist. Court for the Dist. of Idaho, 366 F3d 813, 821-
822 (II) (C) (9th Cir. 2004) (mandamus proceeding); Martens v. Thomann, 273 F3d
159, 175-176 (II) (A) (2d Cir. 2001); Pacific Harbor Capital v. Carnival Air Lines,
14 210 F3d 1112, 1118 (III) (9th Cir. 2000) (“[A]n opportunity to be heard does not
require an oral or evidentiary hearing on the issue. The opportunity to brief the issue
fully satisfies due process requirements.”) (citations omitted); United States v.
Collins, 920 F2d 619, 626 (II) (B) (10th Cir. 1990); Johnson v. Trueblood, 629 F2d
302, 303-304 (II) (3rd Cir. 1980); ACE American Ins. Co. v. Underwriters at Lloyds
& Cos., 939 A2d 935, 947-949 (Pa. Super. Ct. 2007); Clare v. Coleman (Parent)
Holdings, 928 So2d 1246, 1248-1249 (Fla. Ct. App. 2006); Jensen v. Wis. Patients
Comp. Fund, 621 NW2d 902, 905-907 (II) (Wis. 2001) (requiring notice and an
opportunity to be heard for policy reasons and declining to resolve due process
question); Bank of Hawaii v. Kunimoto, 984 P2d 1198, 1213-1214 (III) (A) (Haw.
1999); Hallmann v. Sturm Ruger & Co., 639 P2d 805, 807-809 (Wash. Ct. App.
1982) (holding that although attorney did not have constitutional or statutory right to
notice and hearing, those steps should have been taken for policy reasons).
Here, the attorneys were not given notice of the charges against them or a
meaningful opportunity to be heard. The issue of revocation arose at the beginning
of the trial, just before the parties were to strike a jury, and the trial court orally
revoked their admissions at that time; the attorneys were not given notice that their
admissions could be revoked until the trial court revoked them. And not until the trial
15 court issued its written order were the attorneys informed of the specific Rules of
Professional Conduct the trial court determined they had violated. Although the trial
court allowed the attorneys to speak on the issue, they were not given a meaningful
opportunity to respond to the charge that they had violated those specific rules, as
they had not been given notice. Accordingly, we vacate the trial court’s order
revoking the attorneys’ pro hac vice admissions and remand for the trial court to
afford the attorneys notice and a meaningful opportunity to be heard before deciding
the issue.
3. The trial court properly considered the Georgia Rules of Professional
Conduct.
Thomas and Malek argue that the trial court erred in revoking their pro hac
vice admissions on the basis of violations of Georgia Rules of Professional Conduct.
They argue that the trial court lacked authority to sanction them based upon a
violation of the disciplinary rules because the Georgia Supreme Court has the
exclusive authority to govern the practice of law in Georgia. Because the issue will
arise upon remand, we address it in spite of our vacating the order of revocation. We
hold that the trial court properly considered the Georgia Rules of Professional
16 conduct when deciding the issue of the revocation of the attorneys’ pro hac vice
We observe that the Supreme Court transferred the appeal to this court on the
ground that “the trial court’s finding that the attorneys’ conduct constituted a
violation of State Bar Rules [did] not invoke [the Supreme] Court’s authority over
lawyer disciplinary matters.”
More importantly, the rule governing the admission of attorneys pro hac vice
and the revocation of that admission explicitly includes within the trial court’s
authority the Georgia Rules of Professional Conduct. Uniform Superior Court Rule
4.4 (F) (1) (b), which concerns the admission of attorneys pro hac vice and the
revocation of their admission, provides that “the [trial] court’s . . . authority includes,
without limitation, the court’s and State Bar of Georgia’s Rules of Professional
Conduct, contempt and sanctions orders, local court rules, and court policies and
procedures.” (Emphasis supplied.)
And we have previously held that trial courts may disqualify attorneys for
violations of the disciplinary rules. For example, in Piedmont Hosp. v. Reddick, 267
Ga. App. 68 (599 SE2d 20) (2004), we held that the trial court erred in ruling that,
because “sanctions for violations of disciplinary rules appear to be the exclusive
17 province of the Supreme Court of Georgia, not of [the] trial court,” it lacked authority
to determine whether plaintiff’s counsel violated Rule 4.2 of the Georgia Rules of
Professional Conduct and therefore should be disqualified. Id. at 75-76 (7) (a)
(punctuation omitted). We noted that the “determination of whether an attorney
should be disqualified from representing a client in a judicial proceeding rests in the
sound discretion of the trial judge.” Id. at 75 (7) (a) (citations omitted; emphasis in
original). See also In re Estate of Peterson, 255 Ga. App. 303 (565 SE2d 524) (2002),
cert. denied (affirming superior court’s disqualification of an attorney serving as
executor of a will on the basis of violation of State Bar Rules); Clos v. Pugia, 204 Ga.
App. 843, 844-846 (1) (420 SE2d 774) (1992), cert denied. Compare Stevens v.
Thomas, 257 Ga. 645, 647-648 (1) (361 SE2d 800) (1987) (declining to address order
disqualifying defendants’ attorney for violation of State Bar Rules because appeal
was not timely as to that issue, but reversing award of attorney fees against
defendants because a client is not subject to sanctions for the infractions of
disciplinary rules by the client’s attorney).
4. Sufficiency of the evidence.
Because we have vacated and remanded the order revoking the attorneys’ pro
hac vice admissions, we do not address their argument that the evidence does not
18 support the trial court’s finding that the attorneys violated the Georgia Rules of
Professional Conduct.
Judgment vacated and case remanded. Barnes, P. J., and Ray, J., concur.