By Carole J. Buckner
What is the scope of representation permissible under pro hac vice admission authorizing representation of an organizational defendant? Can such counsel also represent current and former employees of the company? The recent decision in Big Lots Stores, Inc. v. Superior Court, 57 Cal.App.5th 773 (2020) addressed whether lawyers authorized to appear pro hac vice in a state court action on behalf of a defendant corporation could also represent current and former employees of the organization as witnesses in wage and hour litigation without seeking additional pro hac vice authorization from the court. The trial court revoked the out-of-state lawyers’ pro hac vice status for exceeding the scope of the court’s order. On a petition for writ of mandate, the appellate court vacated the revocation order, and remanded for further hearings, finding that, although the out-of-state lawyers were not authorized by the applicable pro hac vice orders to represent current and former employees at their depositions, revocation of their pro hac vice status was not warranted.
The underlying dispute in Big Lots involved allegations by former store managers that Big Lots misclassified workers as managerial employees to avoid payment for overtime. Two lawyers from the Ohio-based firm of Vorys, Sater, Seymour & Pease LLP (Vorys) applied for pro hac vice status and the court granted their applications to represent Big Lots. The court later approved the application of a third Vorys lawyer to represent Big Lots, underlining the word “defendant” in the order, to emphasize the limited scope of representation authorized. In the interim, prior to the third order, the Vorys lawyers had represented various current and former Big Lots managers in depositions noticed by the plaintiffs. When plaintiffs advised the court of this, the court revoked the pro hac vice authorization of all three Vorys attorneys.
The appellate court’s opinion recognized that, as a general rule, “No person shall practice law in California unless the person is an active licensee of the State Bar.” Cal. Bus. & Prof. Code 6125. The unauthorized practice of law is a crime. Bus. & Prof. Code § 6126. At the same time, the court recognized the exception for pro hac vice admission. Cal. Rule of Court 9.40. Rule 9.40 allows a lawyer not licensed in California to appear pro hac vice as authorized by the court in a particular case, provided that an active California State Bar lawyer is also associated in the case as attorney of record.
As to whether pro hac vice admission authorizing the Vorys attorneys to represent Big Lots also authorized their representation of every current and former Big Lots management employee, the court held that, “The answer is clearly ‘no’”. The court found that the plaintiffs deposed the current and former managers in their individual capacities, not as corporate representatives, so they were “mere witnesses to some of the relevant facts and circumstances.” In reaching this conclusion, the court looked to Rule 4.2(b) of the California Rule of Professional Conduct, commonly known as the no contact rule.
Officers, directors, partners or “managing agents” of an organization are deemed “represented” by the lawyers for the organization. Rule 4.2(b)(1). Here, the court held, the managers being represented were not “managing agents.” Current employees, members, agents or other organizational constituents are also deemed “represented” by the organization’s lawyers if the subject of the communication is any act or omission of such persons in connection with the matter which may be binding upon or imputed to the organization. Rule 4.2(b)(2). Big Lots did not contend that this provision applied, particularly since eight of the ten deponents were former employees. The court determined that each current or former employee was a separate client and held that the pro hac vice order authorizing representation of the organizational defendant did not authorize representation of the individual employees under the circumstances.
The appellate court then addressed whether total revocation of pro hac vice status was appropriate. The court held that because the depositions had already taken place prior to the issue coming to the court’s attention, and because the defense attorneys “innocently misinterpreted two pro forma orders granting pro hac vice applications,” total revocation of pro hac vice status was not necessary. In addition, because the Vorys lawyers did not represent any employee deponents after the court clarified the scope of the order by underlining the word “defendants” in its third order, the overall circumstances did not support denial of Big Lots’ counsel of choice. Instead, the court said the trial court “could have prohibited additional representation of current and former employee-deponents absent further court order.”
Federal courts may differ. A federal court in a separate class action coordinated for discovery purposes with the Big Lots litigation considered a similar argument that the Vorys attorneys had exceeded the scope of their federal pro hac vice admission. Wellons v. PNS Stores, Inc., S.D.Cal., No. 3:18-cv-2913 DMS (WVG) 2020 U.S.Dist.Lexis 110030. That court declined to read the pro hac vice admission status so narrowly, and found that “[c]ounsel, admitted on a pro hac vice application, ought to be able to fully prosecute or defend the action in which they were admitted within the bounds of the law.” The federal court declined to resolve the parties’ dispute as to the scope of pro hac vice admission and also declined to disqualify Vorys.
Based on the Big Lots decision, out-of-state counsel representing former employees should seek separate pro hac vice admission. Out-of-state counsel admitted pro hac vice representing current employees should consider the application of Rule 4.2 carefully, and where appropriate, obtain separate pro hac vice authorization. Alternatively, local California co-counsel could be utilized for representation of current and former individual employees. Finally, California lawyers should avoid knowingly assisting out-of-state lawyers who are not authorized to represent current and former employees in the unauthorized practice of law. Cal. Rules of Prof. Conduct, rule 5.5 (California lawyer shall not knowingly assist a person in the unauthorized practice of law).
Carole J. Buckner is a Partner & General Counsel at Procopio, Cory, Hargreaves & Savitch, LLP.