Glenn Wilder and Others v. President & Fellows of Harvard College and Others

Opinion

The Court recently denied a motion that Attorney T. Michael Morgan filed, on his own behalf, seeking leave to appear pro hac vice for the plaintiffs in this action. The Court noted that three other lawyers from Attorney Morgan’s law firm (Morgan & Morgan, P.A.) have already appeared in this case. Yesterday two more lawyers, from the law firm Butters Brazilian LLP in Boston, Massachusetts, entered their appearance for the plaintiffs as well.

An attorney who is not a member of the Massachusetts bar may appear on behalf of a party in a Massachusetts court case only by “permission of the court.” See G.L. c. 221, § 46A. Permission for an attorney to appear in a particular case even though they are not a member of that jurisdiction’s bar is referred to as admission pro hac vice, a legal Latin phrase meaning “for this occasion or particular purpose.” See Black’s Law Dictionary 1331 (9th ed. 2009).

Lawyers have no right to appear pro hac vice in Massachusetts courts. See DiLuzio v. United Electrical, Rado and Machine Workers of America, Local 274, 391 Mass. 211, 215 (1984). Similarly, a party to a lawsuit “does not have the right to be represented by a specific out-of-state attorney.” Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 107 n.1 (1989). Instead, Massachusetts judges have broad discretion in deciding whether to permit an attorney who is not a member of the Massachusetts bar to appear pro hac vice in a Massachusetts action. See PCG Trading, LLC v. Seyfarth Shaw, LLP, 460 Mass. 265, 270 (2011); Merles v. Lerner, 391 Mass. 221, 223 (1984).

In its prior decision, the Court explained that it was exercising its discretion to deny Attorney Morgan’s pro hac vice motion because: (I) Morgan had recently been sanctioned by the United States District Court for the District of

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Wyoming, in February 2025, for signing his name to and participating in the filing of motions in limine that contained eight fake, AI-hallucinated case citations, which the Court considered to be a serious ethical transgression; (ii) Morgan made no attempt in his pro hac vice motion to show that he has changed his practice to comply with his obligation to review any papers filed in court over his signature, or that he has taken any steps to ensure that he and his law firm do not file motions or legal memorandum citing nonexistent case law in the future; (iii) Morgan violated G.L. c. 221, § 46A, and Massachusetts Supreme Judicial Court Rule 3:15 by filing his pro hac vice motion on his own behalf and thereby practicing law in Massachusetts without permission; and (iv) Morgan further violated Rule 3:15 by failing to certify that he had paid the required, non-refundable $355 fee to the Board of Bar Overseers before having an appropriate attorney seek pro hac vice admission on his behalf.

1. Motion to Vacate and Withdraw. Plaintiffs, acting through their new local counsel, have now filed a motion asking the Court to vacate its prior order under Mass. R. Civ. P. 60(b), to allow Attorney Morgan to withdraw his prior motion for admission pro hac vice, and to permit plaintiffs to file a new pro hac vice motion that would attempt to address the last three of the four issues summarized above. This motion is supported in part by a sworn affidavit submitted by Attorney Morgan.

Morgan and the Plaintiffs are not content with asking the Court to reconsider its prior ruling. Instead, they ask the Court to “vacate” its prior ruling and give Morgan leave to “withdraw” the prior pro hac vice motion that he improperly filed on his own behalf and to replace it with a “corrected pro hac vice motion.”

In other words Attorney Morgan, acting through Plaintiffs’ new local counsel, wants the Court to make his prior motion and the Court’s prior decision disappear, and to act on a new pro hac vice motion as if Morgan’s previous motion never existed.

Plaintiffs note that the Court’s denial of Attorney Morgan’s pro hac vice motion “is in effect a final judgment.” See DiLuzio, 391 Mass. at 214 (pro hac vice denial may be appealed as of right under doctrine of present execution). They contend that therefore “relief from the order denying Attorney Morgan’s admission pro hac vice is available under Rule 60(b).”

Plaintiffs assert that the “deficiencies” that the Court noted in Morgan’s prior motion were the result of “mistake, inadvertence, or excusable neglect,” and

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that the Court should therefore “vacate” its prior order pursuant to Rule 60(b)(1). In the alternative, they argue that the Court could grant such relief pursuant to Rule 60(b)(6) “[i]n the interest of substantial justice.”

Plaintiffs do not contend that they will be at all prejudiced if Attorney Morgan is not permitted to appear in this case alongside the five other lawyers who have already entered their appearance for the plaintiffs.

2. Attorney Morgan’s New Affidavit. In a supporting affidavit filed with the new motion, Morgan tries to explain the troubling missteps that he made in filing his prior pro hac vice motion. First, Morgan says it did not occur to him to explain any remedial steps that he and his firm have taken after the Wyoming debacle, stating that he “did not anticipate that the motion would be denied because it was unopposed and the U.S. District Court for the District of Wyoming declined to revoke my pro hac vice admission in that court.” Second, Morgan says that he “did not consider whether it might be incorrect for me to serve as the movant,” because he “was focused on the disclosure of the sanction in Wyoming” and because “[i]n Florida, an attorney seeking admission pro hac vice is identified as the movant.” Third, Morgan states that he had paid the required $355 pro hac vice registration fee to the BBO before filing the prior motion, but provides no explanation for why he did not certify having done so as required by Rule 3:15.

In addition, Morgan tries to distance himself a bit from these missteps by stating that he “did not prepare the motion for my admission pro hac vice,” though he acknowledges that he reviewed the motion before it was filed, attested under oath that he was the movant, and prepared the supporting affidavit.

3. Discussion. The Court has “considerable discretion” in deciding whether to allow or deny Plaintiffs’ motion for relief under Rule 60(b). See Hermanson v. Szafarowicz, 457 Mass. 39, 47 (2010).

The Court will exercise its discretion to deny Plaintiffs’ motion to vacate the prior denial of Attorney Morgan’s request to be admitted pro hac vice and to permit Morgan to withdraw the prior motion.

As the Court noted in its prior decision, “[i]t is well settled that ‘permission to a nonresident attorney, who has not been admitted to practice in a court, to appear pro hac vice in a case there pending is not a right but a privilege, the granting of which is a matter of grace resting in the sound discretion of the

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presiding judge.’ ” State v. Reed, 174 Conn. 287, 292, 386 A.2d 243, 247 (1978), quoting Thomas v. Cassidy, 249 F.2d 91, 92 (4th Cir. 1957) (per curiam), cert. denied, 355 U.S. 958 (1958); accord, e.g., Ross v. Reda, 510 F.2d 1172, 1173 (6th Cir. 1975) (per curiam).

Plaintiffs and Attorney Morgan have made no showing that the Court abused its discretion in denying Morgan’s motion seeking pro hac vice admission, or that there are any extraordinary circumstances that would justify vacating the Court’s prior decision and permitting Morgan to withdraw his prior motion.

Instead, Attorney Morgan’s explanations for the “deficiencies” in his recent pro hac vice motion describe a continuing pattern of inexcusable inattention.

Attorney Morgan was sanctioned in Wyoming because he permitted motions containing obviously suspect case citations to be filed over his signature without having complied with his ethical duty to read those motions before they were submitted to the court. See Wadsworth v. Walmart Inc., 348 F.R.D. 489, 496 (D. Wyo. Feb. 24, 2025).

Then, when Morgan filed his improper pro hac vice motion in this Massachusetts case, he apparently assumed that so long as the motion was not opposed then the Court would allow it without paying any attention to Morgan’s ethical violations in the Wyoming case, and therefore there was no need for Morgan to try to show that he is (in Morgan’s words) “deserving of pro hac vice admission” despite his very recent misconduct in Wyoming.

Furthermore, Morgan does not explain why he did not read SJC Rule 3:15, the rule that governs pro hac vice admissions in Massachusetts, before filing his prior motion. In his affidavit, Morgan cites to the cognate Florida rule, which suggests he understands that each State has its own, distinct requirements for pro hac vice admission. If Morgan had taken a few minutes to find and read Rule 3:15, which is available online, he would have learned that it would be improper to file a pro hac vice motion on his own behalf and that any member of the Massachusetts bar who filed such a motion for him would have to certify that Morgan had paid the required $355 fee to the BBO.

3.1. Rule 60(b)(1). The Court finds that Plaintiffs have not met their burden under Rule 60(b)(1) of showing that Attorney Morgan’s missteps in filing his own pro hac vice motion in this case were the result of excusable mistake, inadvertence, or neglect.

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A party is not entitled to relief under Rule 60(b)(1) “for ‘any kind of garden- variety oversight.’ ” Cullen Enterprises, Inc. v. Massachusetts Prop Ins. Underwriting  Ass’n,  399  Mass.  886,  894  (1987),  quoting  Goldstein  v. Barron, 382 Mass. 181, 186 (1980). Instead, any alleged “inadvertence, mistake or … neglect must be excusable in order to give the court power to set aside the judgment” (emphasis added) Id., quoting Geigel v. Sea Land Serv., Inc., 44 F.R.D. 1, 2 (D. Puerto Rico 1968). “Excusable neglect requires circumstances that are unique or extraordinary[.]” Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708–709 (2012), quoting Feltch v. General Rental Co., 383 Mass. 603, 613–614 (1981).

Attorney Morgan’s explanation that it never occurred to him to explain what steps he has taken to ensure that he never again files documents in court containing fake case citations describes nothing more than garden-variety oversight and inattention. It is not excusable mistake, inadvertence, or neglect.

The same is true of Morgan’s explanation that he never gave any thought to whether it would be appropriate under Massachusetts law to file a pro hac vice motion on his own behalf, and his lack of explanation for why he failed to certify paying the correct fee if in fact he had done so.

Admitted carelessness and inattention are not  grounds  for  relief  under  Rule 60(b)(1). See McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 610 (2002) (combination of inattention and delegation of responsibility by attorney to their secretary is not excusable neglect).

3.2. Rule 60(b)(6). Plaintiffs are also not entitled to relief under Rule 60(b)(6) because the Court can discern “no extraordinary circumstance justifying relief.” See M. B. Claff, Inc. v. Massachusetts Bay Transp. Auth., 441 Mass. 596, 603 (2004). “Rule 60(b)(6) has an extremely meagre scope and requires the showing of compelling  or  extraordinary  circumstances.”  Cunningham  v.  Thomas,  102 Mass. App. Ct. 135, 140 (2023) (cleaned up), quoting DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 621 (2016). The missteps committed by Attorney Morgan and his explanations for how they happened are not “extraordinary circumstances.”

In his new affidavit, Attorney Morgan asks the Court to vacate its prior order “due to the serious and lasting harm that it will cause to my career and reputation.” He says that “[t]he Court’s denial of my pro hac vice admission is reportable in other jurisdictions in which I seek pro hac vice admissions,” says

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that he “maintain[s] a national trial practice,” and expresses concerns that “reporting this denial could trigger a domino effect, resulting in the denial of my pro hac vice admission in courts across the country.” Morgan also expresses dismay that the Court’s prior decision has been “published on Westlaw and LexisNexis,” stating that this is “causing lasting harm to my reputation.

This is a forthright explanation of Morgan’s motivation in seeking a do-over, and for asking the Court to make its prior decision disappear. But the potential collateral consequences of inattention and carelessness in filing an improper and unpersuasive pro hac vice motion do not provide a sufficient reason to grant relief under Rule 60(b)(6).

ORDER

In the exercise of the Court’s discretion, Plaintiffs’ motion to vacate the Court’s prior order denying Attorney T. Michael Morgan’s prior motion for leave to appear pro hac vice and for leave to withdraw that prior motion (docket no. 26) is denied.

/s/Kenneth W. Salinger Justice of the Superior Court

June 10, 2026