Not infrequently, parties appearing in the Appellate Divisions are represented by counsel who are not admitted to the New York Bar. However, attorneys may not appear on the brief or in the “to be argued” section of the cover if they are not admitted to practice in the Court, either by virtue of New York State Bar admission or by pro hac vice status. This article provides a guideline for how counsel may be admitted to practice pro hac vice in the Appellate Division, First Department and Appellate Division, Second Department.

Appellate Division, First Department
An application to appear pro hac vice before the First Department is generally a fairly simple process which can be completed by the local counsel associated with the non-New York attorney. The local counsel should provide a letter to the Clerk of the Court, Susanna M. Rojas, with copies to all parties, stating:

(1) The name and index number of the case for which the attorney is seeking pro hac vice status;
(2) That the attorney is in good standing in the jurisdictions in which he/she is admitted and listing each jurisdiction in which the attorney is admitted; and
(3) That no disciplinary proceedings have been instituted or are in progress against the attorney.

In short, the local counsel is acting as a sponsor for the proposed pro hac vice attorney. Certificates of good standing are not required; local counsel’s word suffices.

It is important to remember that a pro hac vice application is only good for one appeal. Even if granted, if the non-New York attorney wants to appear in the Appellate Division, First Department for another matter or subsequent appeal in the same matter, a new letter must be submitted.

After submission, the Court will process the application and issue a letter order granting admission pro hac vice. That letter will provide case-specific instructions on how to correct covers, if applicable, and/or to sign briefs using the pro hac vice counsel’s credentials. The First Department tends to process the most time-sensitive applications first, but it is best to give the Court as much notice as possible regarding the representation of a party by out-of-state counsel.

Appellate Division, Second Department
The process for pro hac vice admission in the Appellate Division, Second Department is more complicated. In the Second Department, a motion seeking leave for an attorney to appear pro hac vice must be filed, even if the Second Department has previously granted the attorney pro hac vice status on another appeal. The motion must be supported by a New York attorney, but may be made by the out-of-state attorney or New York attorney. Included with the motion must be an affirmation indicating that New York local counsel will accept all service in the case and that the proposed pro hac vice attorney is in good standing in all jurisdictions in which he/she is admitted. Certificates of good standing are also required. All motions require a $45 filing fee, payable to “Appellate Division, Second Department.”

Motions for leave to appear pro hac vice are addressed as expeditiously as possible by the Court, but if the application is made very close to the calendared date of argument, the application should be made by an Order to Show Cause.

The Second Department does not require cover page corrections to be made once pro hac vice status is granted, but it is generally advisable to inform the Court and all parties by letter if the newly admitted pro hac vice attorney intends to argue the matter.

Please contact me with any questions regarding preparing and filing any appeal. Counsel Press provides a full spectrum of appellate services. Our New York office focuses on rule-compliant appellate filings in the New York State Court of Appeals, New York State Appellate Division (First-Fourth Departments), New York State Appellate Term (First-Second Departments) and the US Court of Appeals for the Second Circuit. Through our local offices, we offer in-depth knowledge of rules and procedures in all state and federal appellate courts nationwide.

Tagged: Appellate Practice, Litigation, Appellate Procedure, New York State Appellate Division First Department, New York State Appellate Division Second Department