Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. v. Lavin

2020 Ohio 3123

• Court: Ohio Court of Appeals
• Decided: May 27, 2020
• Docket: 2019CA00151
• Status: Published

Opinion

[Cite as Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. v. Lavin, 2020-Ohio-3123.]

wCOURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

KRUGLIAK, WILKINS, GRIFFITHS, : JUDGES: AND DOUGHERTY CO. L.P.A., : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2019CA00151 : DANIEL LAVIN : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2018CV02322

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 27, 2020

APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant:

RALPH F. DUBLIKAR DAVID R. MAYO BAKER, DUBLIKAR, BECK, BENESCH FRIEDLANDER WILEY & MATHEWS COPLAN & ARONOFF LLP 400 South Main Street 200 Public Sq., Ste. 2300 North Canton, OH 44720 Cleveland, OH 44114-2309

RONALD L. HOUSE BENESCH FRIEDLANDER COPLAN & ARONOFF LLP 41 S. High St., Ste. 2600 Columbus, OH 43215

JUDE STREB BUCKINGHAM DOOLITTLE et al. 4277 Munson St. NW Canton, OH 44718 Stark County, Case No. 2019CA00151 2

Delaney, J.

{¶1} Defendant-appellant Daniel Lavin (“Lavin”) appeals from the September 20,

2019 Judgment Entry Denying Motion for Admission Pro Hac Vice of the Stark County

Court of Common Pleas. Plaintiff-appellee is the law firm of Krugliak, Wilkins, Griffiths,

and Dougherty Co., L.P.A. (“Krugliak”).

FACTS AND PROCEDURAL HISTORY

{¶2} This appeal arose from an action in which Krugliak complains of

nonpayment of attorney’s fees for representation of Lavin in matters pertaining to his

mother’s estate and trust.

{¶3} In his answer, Lavin admitted he engaged Krugliak to represent him

individually in matters pertaining to his mother’s estate and trust, of which he was named

executor. Lavin raised several defenses to the claim of nonpayment, including breach of

contract and failure to bill regularly, as well as alleging that certain work was not

reasonable or necessary. Lavin also asserted Krugliak was negligent in its representation

of him.

{¶4} During a portion of the representation, Lavin resided in Houston, Texas, and

retained counsel in Houston named Casey Lambright. Lambright sought permission

before the trial court to be admitted pro hac vice to represent Lavin as co-counsel.

{¶5} Krugliak opposed the motion. Krugliak asserts that when attorney fees

became an issue, Lambright was “intricately involved” in communicating with Krugliak

attorneys, as reflected in numerous emails, correspondence, and telephone

conversations documented in exhibits attached to the trial court filings. The topics of

these communications included the course of the representation, the necessity and Stark County, Case No. 2019CA00151 3

reasonableness of certain work and fees, and disagreements about substantive matters

regarding how Krugliak was handling various issues in the case. Lambright traveled to

Ohio to meet with Krugliak representatives to discuss representation issues and fees.

Krugliak asserts Lambright “was counseling and perhaps instructing [Lavin] as to whether

he should or should not pay Krugliak’s bills.”

{¶6} Krugliak filed its complaint in November 2018. In response to Krugliak’s

Interrogatories and Request for Production of Documents, Lavin listed Lambright as a

“person having knowledge of discoverable matters and/or information concerning the

claims that are being made in this case and any defenses asserted herein.” In response

to an interrogatory regarding whom Lavin intended to call as witnesses, Lavin answered

“Defendant reserves the right to call any or all of the persons named in his answer to

Interrogatory No. 2,” which included Lambright.

{¶7} Lavin agrees Lambright has represented him in the ongoing fee dispute

since its commencement and acknowledges Lambright will be a trial witness but will not

participate as counsel. Lavin asserts he sought Lambright’s admission in a limited role:

“* * * Mr. Lambright’s admission was sought solely for the limited purpose of assisting in

the discovery process and potentially in pretrial hearings, not trial.” Brief, 3.

{¶8} On August 29, 2019, Lavin moved for admission pro hac vice of Lambright.

Krugliak responded with a brief in opposition on September 11, 2019. On September 20,

2019, via judgment entry, the trial court denied Lavin’s motion.

{¶9} Lavin now appeals from the trial court’s judgment entry of September 20,

2019.

{¶10} Appellant raises three assignments of error: Stark County, Case No. 2019CA00151 4

ASSIGNMENTS OF ERROR

{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S PRO HAC MOTION FOR THE SOLE PURPOSE OF CONDUCTING

DISCOVERY AND ANY PRE-TRIAL MOTION PRACTICE ON THE BASIS THAT

COUNSEL IS LIKELY A NECESSARY WITNESS.”

{¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING UPON

APPELLANT’S PRO HAC MOTION BY FAILING TO ANALYZE THE NON-EXCLUSIVE

FACTORS IDENTIFIED BY THIS COURT IN RESTLESS NOGGINS MFG. V. SUAREZ

CORP. INDUS.”

{¶13} “III. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

HOLD A HEARING ON THE PRO HAC MOTION AND IN FAILING TO ANALYZE

SUBSTANTIAL HARDSHIP UPON APPELLANT AND THE RESTLESS NOGGINS MFG.

V. SUAREZ CORP. INDUS. FACTORS.”

ANALYSIS

I., II., III.

{¶14} Lavin’s three assignments of error are related and will be considered

together. Lavin argues the trial court erred in denying his motion for admission of counsel

pro hac vice. We disagree.

{¶15} This Court reviewed the process of admitting counsel pro hac vice in

Restless Noggins Mfg. v. Suarez Corp. Industries, 5th Dist. Stark No. 2015CA00153,

2016-Ohio-3024, at ¶ 13-28. Effective January 1, 2011, the Ohio Supreme Court adopted

Gov. Bar R. XII, which sets forth a standard admission procedure as well as a fee Stark County, Case No. 2019CA00151 5

structure for admitting out-of-state attorneys. Attorneys seeking to appear pro hac

vice must comply with the requirements set forth in such rule.

{¶16} Pursuant to Gov. Bar R. XII, “[a]n attorney is eligible to be granted

permission to appear pro hac vice if:

(a) The attorney neither resides in nor is regularly employed

at an office in this state or;

(b) The attorney is registered for corporate status in Ohio

pursuant to Gov. Bar R. VI, Section 3 or;

(c) The attorney resides in this state but lawfully practices from

offices in one or more other states or;

(d) The attorney maintains an office or other systematic and

continuous presence in Ohio pursuant to Prof.Cond.R. 5.5(d)(2) or;

(e) The attorney has permanently relocated to Ohio in the last

120 days and is currently an applicant pending admission under Gov.

Bar R. I.

{¶17} As further set forth in the Gov. Bar R. XII, the motion and affidavit seeking

permission to appear pro hac vice must contain the following information:

(6) The attorney may file a motion for permission to appear

pro hac vice accompanied by a copy of the certificate of pro hac vice

registration furnished by the Office of Attorney Services, and

includes the following information: Stark County, Case No. 2019CA00151 6

(a) The attorney's residential address, office address, and the

name and address of the attorney's law firm or employer, if

applicable;

(b) The jurisdictions in which the attorney has ever been

licensed to practice law, including the dates of admission to practice,

resignation, or retirement, and any attorney registration numbers;

(c) An affidavit stating that the attorney has never been

disbarred and whether the attorney is currently under suspension or

has resigned with discipline pending in any jurisdiction the attorney

has ever been admitted;

(d) A statement that the attorney has not been granted

permission to appear pro hac vice in more than three proceedings

before Ohio tribunals in the current calendar year pursuant to Section

2(A)(5);

(e) The name and attorney registration number of an active

Ohio attorney, in good standing, who has agreed to associate with

the out-of-state attorney.

{¶18} Attorneys admitted to practice in other states but not admitted to practice in

Ohio do not have a right to practice in courts in Ohio. Royal Indem. Co. v. J.C. Penney

Co., 27 Ohio St.3d 31, 33 (1986). They may, nevertheless, be permitted to appear in an

action by the court pro hac vice, meaning “for this occasion or particular purpose.” A trial

court has wide discretion in the exercise of its duty to supervise members of the bar

appearing before it. Id. at 35; Schmidt v. Krikorian, 12th Dist. No. CA2011–05–035, Stark County, Case No. 2019CA00151 7

2012–Ohio–683, ¶ 9. Consequently, a party challenging the trial court's denial of a motion

to admit an out-of-state attorney pro hac vice must demonstrate that the trial court abused

its discretion. Id. The term “abuse of discretion” implies that the court's attitude is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

{¶19} Appellate court decisions have identified several non-exclusive factors that

a court should consider when determining whether or not to admit an attorney pro hac

vice. These factors include: (1) whether a long-standing close personal relationship exists

between the party requesting permission and the out-of-state counsel, (2) whether the

out-of-state counsel is the customary counsel for the party in jurisdictions that allow pro

hac vice admittance, (3) whether competent counsel in Ohio is available to represent the

party, (4) the age of the case at the time the motion is filed, (5) the nature and complexity

of the litigation, (6) the burden on the court and the nonmoving party if the motion is

granted, (7) the prejudice to the moving party if the motion is denied, and (8) the prejudice

to the nonmoving party if the motion is granted. State v. Ross, 36 Ohio App.2d 185, 197,

304 N.E.2d 396 (1973); Walls v. City of Toledo, 166 Ohio App.3d 349, 850 N.E.2d 789,

2006–Ohio–2111, ¶ 14 (citations omitted).

{¶20} We will refer to the factors supra as the Restless Noggins factors for

consistency with the parties’ arguments.

{¶21} In the instant case, the trial court denied Lavin’s motion to admit Lambright

pro hac vice “based upon [his] likely role as a necessary witness” in the litigation.

Judgment Entry, September 20, 2019. Lavin argues Lambright’s exclusion results in

hardship if he is not admitted as counsel in discovery and pretrial matters, and Krugliak Stark County, Case No. 2019CA00151 8

has not demonstrated prejudice arising from his admission. Krugliak responds that

Lambright is a likely primary witness in the case and admitting him for the purpose of

conducting discovery and attending pretrial meetings would, at minimum, create an

appearance of impropriety.

{¶22} In terms of applicable Restless Noggins factors, the balance is neutral. The

parties agree that Lavin is represented by competent Ohio counsel. At the time of the

motion for admittance (August 29, 2019), the case had been pending since November

2018, was scheduled for mediation on September 26, 2019, for final pretrial on October

10, 2019, and trial on October 21, 2019. Although Krugliak argued it would be prejudicial

for Lambright to be admitted two weeks prior to scheduled mediation, the timing of the

request is not an issue cited by the trial court.

{¶23} As noted supra, the Restless Noggins factors are non-exclusive, and in the

instant case, a different factor is determinative. In Lavin’s motion for pro hac vice

admittance, Lambright’s role in the litigation is described as follows:

6. Mr. Lambright has served as counsel for Mr. Lavin in

numerous matters over the past 7 years and continues to do so. In

fact Mr. Lambright served as Mr. Lavin’s counsel in all of the matters

that are the subject of [Krugliak’s] Complaint for attorney fees in this

case, has had numerous discussions with [Krugliak] on Mr. Lavin’s

behalf on those matters and has been representing Mr. Lavin in the

ongoing dispute with [Krugliak] since its commencement.

Motion for Admission of Counsel Pro Hac Vice on Behalf of

Defendant Daniel Lavin, 1-2. Stark County, Case No. 2019CA00151 9

{¶24} It is evident from the description above, and from the materials attached to

Krugliak’s brief in opposition in the trial court, that Lambright is a necessary and material

witness in the case. Lavin acknowledges Lambright will be a trial witness, and insists the

pro hac vice admission is only for the purpose of pretrial and discovery. It is not clear to

us, and Lavin does not specify, how this distinction would work in practical application. It

is evident from the record that Lambright was “intimately involved in the various

proceedings whereby the Krugliak firm was representing defendant Lavin, and Lambright

was involved in the various discussions regarding the strategy of the representation, the

reasonableness and necessity of certain work that was or was not being done, the

reasonableness of the fees, the regularity with which defendant Lavin was being billed,

and whether or not [Krugliak] was complying with the terms of the retention agreement.”

Krugliak “Brief Opposing Defendant’s Motion for Admission of Counsel Pro Hac Vice,” 10.

{¶25} In the instant case, we have a party represented by competent Ohio

counsel, seeking admission of out-of-state counsel who will be a necessary witness in the

litigation but seeking admission as counsel for the nebulous limited purpose of “pretrial

matters” alone. The issue before us is whether the trial court abused its discretion in

denying the motion for admission pro hac vice due to Lambright’s role as a likely witness.

{¶26} Lambright was not disqualified in this case; instead, he was merely not

admitted pro hac vice. It is helpful to review the disciplinary rules pertaining to attorney-

witnesses, however, because Krugliak complains of potential impropriety. Rule 3.7(a) of

the Ohio Rules of Professional Conduct provides:

A lawyer shall not act as an advocate at a trial in which the

lawyer is likely to be a necessary witness unless one or more of the Stark County, Case No. 2019CA00151 10

following applies: (1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services

rendered in the case; (3) the disqualification of the lawyer would

work substantial hardship on the client. (Emphasis sic.)

{¶27} The Ohio Supreme Court exercises exclusive jurisdiction over the

admission of lawyers to practice law in Ohio and over the discipline of those lawyers. See,

Mentor Lagoons, Inc. v. Rubin , 31 Ohio St.3d 256, 259–260, 510 N.E.2d 379 (1987),

citing D.H. Overmyer Co., Inc. v. Robson, 750 F.2d 31, 33 (C.A.6, 1984), Section 5(B),

Article IV of the Ohio Constitution, and Gov.Bar R. V. Nonetheless, lower courts have a

duty to ensure that the attorneys who practice before it do not violate the Disciplinary

Rules, and those courts have the inherent power to disqualify an attorney from acting as

counsel in a case when the attorney cannot or will not comply with the Code of

Professional Responsibility and when such action is necessary to protect the dignity and

authority of the court. Mentor Lagoons, Inc. v. Rubin, supra, 31 Ohio St.3d at 259,

and Royal Indemn. Co. v. J.C. Penney Co., Inc. , 27 Ohio St.3d 31, 34, 501 N.E.2d 617

(1986), quoting Hahn v. Boeing Co. , 95 Wash.2d 28, 34, 621 P.2d 1263 (1980). “A

delicate balance must be struck between two competing considerations: the prerogative

of a party to proceed with counsel of its choice and the need to uphold ethical conduct in

courts of law.” Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F.Supp. 1121, 1124

(N.D.Ohio 1990).

{¶28} We find the trial court in the instant case did not abuse its discretion in

denying the pro hac vice admission because the attorney is a likely witness. The

appearance of, or likelihood of, impropriety is a reasonable basis for the trial court to deny Stark County, Case No. 2019CA00151 11

the motion. An abuse of discretion does not exist when a trial court finds “[a]mple

evidence reflect[ing] concerns of impropriety” associated with a request for pro hac vice

admission and therefore denies the motion. See, U.S. Xpress, Inc. v. Hub Group, Inc.,

6th Dist. Lucas No. L-16-1296, 2017-Ohio-2819, ¶ 18, appeal not allowed, 151 Ohio St.3d

1505, 2018-Ohio-365, 90 N.E.3d 947 [pro hac vice motion denied due to recent

representation of competitor and adverse party in another state during the same

timeframe, involving several of the same witnesses].

{¶29} In AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), the Supreme Court set forth the

following test to determine whether the trial court had abused its discretion: “* * * *. It is

to be expected that most instances of abuse of discretion will result in decisions that are

simply unreasonable, rather than decisions that are unconscionable or arbitrary.” A

decision is unreasonable if there is no sound reasoning process that would support that

decision. Schmidt v. Krikorian, 12th Dist. Clermont No. CA2011-05-035, 2012-Ohio-683,

¶ 10. It is not enough that the reviewing court, were it deciding the issue de novo, would

not have found that reasoning process to be persuasive, perhaps in view of countervailing

reasoning processes that would support a contrary result. Id. If a trial court is concerned

that counsel is likely to become a witness, the trial court gave a sound reasoning process

that would support its decision to deny a motion to admit counsel pro hac vice. See,

Schmidt v. Krikorian, supra, 12th Dist. Clermont No. CA2011-05-035, 2012-Ohio-683, ¶

15; see also, Guccione v. Hustler Magazine, Inc., 25 Ohio App.3d 48, 49, 495 N.E.2d

586, 587–88 (10th Dist.1985), appeal not allowed, 37 Ohio St.3d 712, 532 N.E.2d 142

[trial court did not err in concluding members of the out-of-state counsel's firm might be Stark County, Case No. 2019CA00151 12

called as witnesses and did not abuse its discretion in declining to admit out-of-state

counsel]. Additionally, where counsel is likely to be called as a witness, a trial court’s

decision to disqualify counsel is not an abuse of discretion. See, Sauer v. Greene, 62

Ohio App.3d 22, 24–25, 574 N.E.2d 542, 543–44 (2nd Dist.1989) [trial court based its

decision to disqualify counsel partly upon the grounds that party intended to call counsel

to testify as a witness, the testimony would be relevant to a contested matter, and there

was no showing of undue hardship as a result of having to substitute counsel at that stage

of the proceedings].

{¶30} Lavin argues the trial court should have held a hearing on the motion, but

as Krugliak points out, the instant case does not involve disqualification of counsel, merely

denial of a motion to admit pro hac vice. No hearing was required.

{¶31} Upon our review of the record, we find the trial court’s decision was not an

abuse of discretion, and Lavin’s sole assignment of error is therefore overruled. Stark County, Case No. 2019CA00151 13

CONCLUSION

{¶32} Appellant’s three assignments of error are overruled and the judgment of

the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, J. and

Baldwin, J., concur.