Kathleen Jensen v. Wisconsin Patients Compensation Fund
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2001 WI 9 SUPREME COURT OF WISCONSIN Case No.: 99-2774 Complete Title of Case: Kathleen Jensen, Bradley Jensen and Erik Jensen (a minor), Plaintiffs-Appellants, State of Wisconsin, Department of Health and Family Services, Plaintiff, v. Wisconsin Patients Compensation Fund, David McPherson, M.D., and Lakeland Medical Center, Defendants-Respondents. ON CERTIFICATION FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: February 13, 2001 November 29, 2000 Circuit Walworth Michael S. Gibbs JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the plaintiffs-appellants there were briefs by Matthew W. O Neill, Shannon A. Allen and Friebert, Finerty & St. John, S.C., Milwaukee, and oral argument by Matthew W. O Neill. For the defendants-respondents there was a brief by Curtis C. Swanson, Edith F. Merila, Timothy J. Cesar and Axley Brynelson, LLP, Madison, James R. Gutglass, Sharon R. Long and Gutglass, Erickson & Bonville, S.C., Milwaukee, and Paul J. Pytlik and Otjen, Van Ert, Leib & Weir, S.C., Milwaukee, and oral argument by Curtis Swanson and James R. Gutglass. 2 2001 WI 9 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-2774 STATE OF WISCONSIN : IN SUPREME COURT Kathleen Jensen, Bradley Jensen and Erik Jensen (a minor), FILED Plaintiffs-Appellants, State of Wisconsin, Department of Health and Family Services, FEB 13, 2001 Cornelia G. Clark Clerk of Supreme Court Madison, WI Plaintiff, v. Wisconsin Patients Compensation Fund, David McPherson, M.D., and Lakeland Medical Center, Defendants-Respondents. APPEAL from an order of the Circuit Court County, Michael S. Gibbs, Circuit Court Judge. for Walworth Reversed and cause remanded. ¶1 an DIANE S. SYKES, J. The issue in this case is whether attorney admitted pro hac vice1 has the right to notice and 1 Pro hac vice is defined as: "For this turn; for this one particular occasion. For example, an out-of-state lawyer may be admitted to practice in a local jurisdiction for a particular case only." Black's Law Dictionary 1227 (7th ed. 1999). No. an opportunity admission can to be be heard before revoked. The his or issue her arose pro in 99-2774 hac this vice medical malpractice action when the circuit court granted a mistrial based upon "reprehensible" pretrial and trial conduct by the plaintiffs' attorney, who was licensed in Illinois but admitted in Wisconsin for purposes of this case. mistrial, without notice or hearing, Five days after the the circuit court sua sponte issued an order withdrawing the attorney's pro hac vice admission. ¶2 appeal The plaintiffs and their attorney obtained leave to the circuit court s nonfinal order, and the court of appeals certified the question of the attorney's right to notice and hearing to this court. 98).2 Wis. Stat. (Rule) § 809.61 (1997- We conclude that as a matter of judicial policy, and in accordance with the proper administration of the justice system, notice and an opportunity to respond are necessary prerequisites to the revocation Accordingly, rescinding we the of an reverse pro hac attorney's the order vice pro of admission hac the of vice status. circuit the court plaintiffs' attorney in this case, and remand for further proceedings. I ¶3 Kathleen Jensen, her husband Bradley Jensen, and their minor son Erik Jensen filed this medical malpractice action in Walworth County Circuit Court 2 against Wisconsin Patients All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. 2 No. Compensation Center. Fund, They delivery that paraplegic. Dr. David alleged damaged Pursuant McPherson, negligence his to in spinal SCR and 99-2774 Lakeland Medical connection cord and with rendered (1998),3 10.03(4) Erik's the him a Jensens petitioned the circuit court for pro hac vice admission of Lee Phillip Forman, an attorney from Chicago, Illinois. According to an affidavit submitted by a Wisconsin attorney in support of Forman's admission, Forman had been asked to participate in this case because it was a complicated medical malpractice action and Forman had more than 30 years of experience handling such matters. ¶4 order, The circuit court granted citing SCR 10.03(4) and the petition specifically by written stating that permission to appear pro hac vice may be withdrawn "if [Forman] manifests court incompetency to represent or . . . unwillingness professional responsibility to and the a client abide in by rules a the of Wisconsin code decorum of of the Court." ¶5 A jury trial commenced on October 4, 1999, before the Honorable Michael S. Gibbs. testimony defense of plaintiffs' counsel objected On October 6, 1999, during the expert, that the Dr. Richard doctor's D. Jacobson, trial testimony differed from his earlier deposition testimony. 3 The jury was All subsequent references to the Wisconsin Supreme Court Rules are to the 1998 version. 3 No. 99-2774 excused, and the court heard argument from counsel and allowed a voir dire of the witness. ¶6 Defense counsel noted that at the time of his deposition, Dr. Jacobson had offered only a rather tentative opinion that some event during Erik s birth, perhaps a manipulation to correct the baby's breech position, had possibly caused the spinal cord damage. The doctor had testified that in order to form an opinion to a reasonable medical probability he would need to review all of the medical records and relevant depositions, as well as search the literature, and that he had not done so at the time of his deposition. Defense counsel had asked Forman at the deposition to advise them if Dr. Jacobson was provided with the additional information so that they could conduct a follow-up deposition to determine whether he would be changing his opinion. ¶7 Dr. Jacobson admitted during the voir dire that Forman had in fact given him additional materials after the deposition, and that his review of "firmed up" his opinion. those materials had "solidified" or Forman argued that the doctor s trial opinion was basically consistent with his deposition opinion. The circuit court disagreed, however, and found that the trial testimony "was Jacobson's a significant testimony when and substantial compared with change his in Dr. deposition testimony." ¶8 Based upon Forman's failure to notify defense counsel of the changed circumstances surrounding Dr. Jacobson's opinion, the circuit court granted the defendants' motion for a mistrial: 4 No. 99-2774 This is a very straightforward process and procedure, and I don't know why you can't just do it that way. This sneaking around with this new opinion when you knew it at least a week and a half ago, it is repulsive. . . . But I'm telling you, this makes me sick for your clients, Mr. Forman, because you've left them hanging out there like this, but that's not my problem. That's your problem. . . . I'm going to grant the mistrial because I think you've made such a mess out of this, Mr. Forman, that this case can't even go forward. Your behavior here is unbelievable. It's reprehensible. And your lack of preparation for this trial and your inability to play within the rules has it's created every one of these problems. ¶9 be Five days later, without notice or an opportunity to heard, the circuit court sua sponte entered an order rescinding Forman's permission to appear pro hac vice as counsel for the Jensens. The order cited SCR 10.03(4) and stated that Forman "has by his conduct manifested incompetency to represent a client in a Wisconsin court and has not abided by the code of professional responsibility and the rules of decorum of the Court." ¶10 that Dr. Forman filed a motion for reconsideration, reasserting Jacobson's trial testimony was consistent with his deposition testimony. He argued that the circuit court's order deprived right him of the to practice his profession and deprived the Jensens of their right to counsel of their choice. He also argued that the order had been entered without notice 5 No. or an opportunity to respond. 99-2774 The circuit court entered its written findings of fact and order granting the mistrial, but did not specifically address Forman's motion for reconsideration of the revocation of his pro hac vice status. ¶11 The court of appeals granted leave to appeal the narrow question of whether there is a right to notice and an opportunity to be heard before a circuit attorney's pro hac vice admission. certified the question to this court withdraws an The court of appeals then court, and we accepted the certification. II ¶12 Supreme Resolution of the certified question begins with the Court Rule governing admission of attorneys pro hac vice: A judge in this state may allow a nonresident counsel to appear in his or her court and participate in a particular action or proceeding in association with an active member of the state bar of Wisconsin who appears and participates in the action or proceeding. Permission to the nonresident lawyer may be withdrawn by the judge granting it if the lawyer by his or her conduct manifests incompetency to represent a client in a Wisconsin court or by his or her unwillingness to abide by the rules of professional conduct for attorneys and the rules of decorum of the court. Supreme Court Rule 10.03(4). The Rule commits the decision to grant or withdraw pro hac vice admission to the discretion of the trial court. Filppula-McArthur v. Halloin, 2001 WI 8, ___ Wis. 2d ___, ___ N.W.2d ___. 6 No. ¶13 99-2774 Pro hac vice admission has always been considered a privilege rather than a right: As a matter of comity, the courts of this state have practically always . . . except in criminal proceedings on behalf of the state . . . cheerfully conceded the privilege to attorneys of sister states to engage in the conduct of trials in this state. But such has always been recognized as a privilege extended to such outside counsel and not as a right to be claimed on their part . . . . There can be no question but that many lawyers of prominence have carried on substantial business in more than one state at the same time and without question or criticism. The extent to which such privilege may be extended is a matter for the courts of each state to determine when a question in that regard is presented in any particular situation. In re Pierce, 189 Wis. 441, 450, 207 N.W. 966 (1926) (citations omitted). The United States Supreme Court has held that an attorney does not have a constitutional right to be admitted pro hac vice. ¶14 Leis v. Flynt, 439 U.S. 438, 442-43 (1979). The Jensens and Forman contend, however, that once an attorney has been admitted pro hac vice in a particular case, the attorney acquires a limited property interest that requires the due process protections of notice and an opportunity to be heard before that status may be revoked. This is an issue of first impression in this state. ¶15 Some jurisdictions have concluded that attorneys have a limited property interest in pro hac vice admission, entitling them to notice and an opportunity to be heard as a matter of 7 No. 99-2774 constitutional due process before that status can be revoked.4 Other jurisdictions have sidestepped the constitutional argument and found that notice and an opportunity to respond are required for policy reasons.5 ¶16 judicial We conclude that, administration, for reasons attorneys of should policy receive and sound notice and some opportunity to respond before pro hac vice admission is revoked. Accordingly, question. Labor and Farm Party v. Election Bd., 117 Wis. 2d 351, 344 354, N.W.2d we 177 do not (1984) reach (courts the constitutional generally do not consider constitutional questions when the case is resolvable on other grounds); see also Zander v. County of Eau Claire, 87 Wis. 2d 503, 519, 275 N.W.2d 143 (Ct. App. 1979). 4 See Bank of Hawaii v. Kunimoto, 984 P.2d 1198, 1214 (Haw. 1999) (holding that once a nonresident attorney has been granted pro hac vice status in a case by a judge, the nonresident attorney gains a "limited property interest" that is held pursuant to Hawaii Supreme Court Rules and that the deprivation of this property interest previously held under state law must be in accord with requisite constitutional safeguards); see also Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1371-72 (11th Cir. 1989)(holding that it was clear that admission of an attorney pro hac vice constitutes a property interest entitled to due process protection because an attorney admitted pro hac vice enjoys the same basic procedural rights as regular counsel). 5 See Taberer v. Armstrong World Indus., Inc., 954 F.2d 888 (3d Cir. 1992); United States v. Collins, 920 F.2d 619 (10th Cir. 1990); United States v. Summet, 862 F.2d 784 (9th Cir. 1988); Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C. Cir. 1984) rev'd on other grounds, 472 U.S. 424 (1985); Johnson v. Trueblood, 692 F.2d 302 (3d Cir. 1980); Hallman v. Sturm Ruger & Co., Inc., 639 P.2d 805 (Wash. Ct. App. 1982). 8 No. ¶17 The United States Court of Appeals for 99-2774 the Third Circuit adopted this approach in Johnson v. Trueblood, 629 F.2d 302 (3d Cir. 1980) (per curiam), and we find its treatment of the issue persuasive. In Johnson, the Third Circuit held that some type of notice and an opportunity to respond were necessary when a court sought to revoke an attorney's pro hac vice status. The court reached its decision not on constitutional process grounds but as a matter of judicial policy. due In Johnson, the trial court, sua sponte and without notice, had revoked an attorney's pro hac vice status as a result of his disruptive and unprofessional conduct. Id. at 302. The court of appeals reversed the trial court and said that some form of notice and an opportunity to respond were required, for these reasons: [S]ome sort of procedural requirement serves a number of salutary purposes. It ensures that the attorney's reputation and livelihood are not unnecessarily damaged, protects the client's interest, and promotes more of an appearance of regularity in the court's processes. Id. at 303. ¶18 The court in Johnson allowed for some flexibility of procedure, recognizing that the decision is discretionary in the trial court and some circumstances may not require formal notice and full hearing. Id. at 303-04. Accordingly, the court left the form of the notice to the discretion of the trial court, specifying only that it identify two things: "the conduct of the attorney that is the subject of the inquiry, and the specific reason this conduct may justify revocation." 9 Id. at 304. No. ¶19 As for the opportunity to respond, the 99-2774 court in Johnson held that a full-scale hearing is not required in every case. Id. at attorney be 304. "All given a that we meaningful identified charges." Id. will mandate opportunity is to that respond the to Again, the court left the nature and scope of the opportunity to respond to the discretion of the trial court. Id. ¶20 We agree with policy, provided some before pro 10.03(4). hac flexible approach of the Third We therefore conclude that, for reasons of Circuit in Johnson. judicial the attorneys form of vice admitted notice status and may be pro an hac vice opportunity withdrawn must to under be respond SCR Rule The form of the notice and opportunity to respond is left to the sound discretion of the circuit court, provided, however, that the attorney is notified of the conduct which is alleged to violate SCR 10.03(4) and the specific reason this conduct may justify revocation under the rule. ¶21 The defendants contend that Forman was effectively put on notice that his pro hac vice status was in jeopardy when the circuit court ruled on the mistrial motion. They also contend that Forman had ample opportunity to respond during the course of the argument on the motion. ¶22 While it is true that the circuit court explicitly and forcefully placed the blame for the mistrial squarely on Forman, revocation of the attorney s pro hac vice admission was never mentioned as a possible sanction for his conduct. attorneys' fees, and costs were 10 the only Mistrial, remedies under No. consideration. 99-2774 The circuit court's sua sponte order rescinding Forman's pro hac vice status came five days later, without any form of notice otherwise. We or an find opportunity it noteworthy to that respond, the formal circuit or court acknowledged as much in an amicus curiae brief and suggested that "if this court should decide that notice and an opportunity to be heard are required, the case . . . should be remanded to the Circuit Court for notice and hearing." ¶23 We agree and therefore reverse the circuit court's order revoking Forman's pro hac vice admission and remand the cause to the circuit court for further proceedings consistent with this opinion. By the Court. The order of the Walworth Court is reversed and the cause remanded. 11 County Circuit No. 1 99-2774
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