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Former Counsel for Morgan Stanley Successfully Petitions for Writ Directing Trial Court to Strike Revocation of Pro Hac Vice Status

Posted in CASE SUMMARIES

Clare v. Coleman (Parent) Holdings, Inc., 2006 WL 1409137 (Fla. Ct. App. May 24, 2006)

The petitioner in this case, Thomas A. Clare, is a partner in the law firm of Kirkland & Ellis, LLP, who was admitted to appear pro hac vice on behalf of Morgan Stanley & Company in the suit brought by Coleman Holdings, Inc. in Florida state court. In that capacity, the petitioner served as the primary intermediary between Morgan Stanley and Coleman on discovery matters. The petitioner’s pro hac vice admission was revoked in the trial court’s March 23, 2005 order granting the entry of default judgment against Morgan Stanley (a copy of which is available here). On the same day the court entered the order, the court also heard Kirkland and Ellis’s motion to withdraw from its representation of Morgan Stanley. During that hearing, the court commented that there was “nothing in this record that indicates that any misconduct on the part of Kirkland and Ellis was anything other than as a consequence of their serving as messengers. . . . “

In his petition, Clare argued that his due process rights were violated when the trial court revoked his pro hac vice status without notice and an opportunity to be heard. Because a final judgment in the amount of $1.45 billion had since been entered against Morgan Stanley and the petitioner’s law firm had withdrawn as counsel of record, remand for proper notice and a hearing was probably unnecessary. However, because the petitioner litigates throughout the United States, he argued that the revocation of his pro hac vice status would have an adverse impact on his ability to seek that status again in Florida, and in other jurisdictions. Accordingly, the petitioner sought the writ in order to remove any stigma associated with the revocation of his pro hac vice status.

The appellate court granted the writ. It noted that Coleman had not alleged misconduct on the part of the petitioner and did not seek revocation of his status in the motion seeking a default against the petitioner’s client Morgan Stanley. Rather, the idea first arose in a verbal request by Coleman’s counsel at the end of the hearing on the motion for an adverse inference, and the order resulting from that hearing did not revoke the petitioner’s pro hac vice status.

The court concluded that the petitioner did not have notice and was not given an opportunity to be heard concerning the revocation of his pro hac vice status.

While the record is replete with allegations of misconduct on behalf of his client, no such allegations were directed toward him. In fact, the trial court repeatedly indicated that counsel was simply the messenger. There was no suggestion, let alone any finding, of misconduct on the part of counsel. Indeed, the order revoking the petitioner’s status fails to contain any finding of misconduct on the part of the petitioner giving rise to the sanction. We therefore find the trial court’s order deviated from the essential requirements of the law.

Accordingly, the court granted the petition, issued the writ, and directed the trial court to strike the revocation of the petitioner’s pro hac vice status from its order of March 23, 2005.