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

[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.