Mitchell v. Progressive Insurance Co., 965 So. 2d. 679 (Miss. Sup. Ct., 2007)

Brief Summary
A Louisiana attorney who had attempted to file a lawsuit in a Mississippi court without first obtaining admission pro hac vice was subject to sanctions imposed by the Mississippi court rules and may also be subject to discipline in both Mississippi and Louisiana.

Complete Summary
In January 2003, Carl Mitchell was involved in an automobile accident in New Orleans with a Louisiana resident. Mr. Mitchell’s attorney, Karl Wiedemann, faxed a letter to Mr. Mitchell’s uninsured motorist carrier, Progressive Gulf Insurance Co. (“Progressive”), asserting an uninsured motorist claim against Progressive.

In December 2005, Mr. Wiedemann, who was licensed in Louisiana but not in Mississippi, attempted to file a complaint against Progressive in the Circuit Court of Wayne County, Mississippi. The complaint displayed Mr. Wiedemann’s Louisiana bar number and his office address in New Orleans. The complaint was refused by the Circuit Clerk of Wayne County because it was not signed by a member of the Mississippi bar and did not include a Mississippi bar number.

In February 2006, Mr. Mitchell filed a separate complaint against Progressive in Mississippi state court. This complaint was signed by Mr. Mitchell’s present attorney, Jeffrey L. Ellis, who was licensed in Louisiana. Thereafter, Progressive filed a “Motion to Dismiss, in the alternative, “Motion for Summary Judgment,” asserting that Mr. Mitchell’s complaint was time-barred. In response, Mr. Mitchell contended that the complaint was not time-barred because it had been “filed” and stamped by the Wayne County Circuit Clerk’s Office. The circuit court entered a “Judgment of Dismissal.”

The Supreme Court of Mississippi upheld the dismissal. In its analysis, the court noted that Mr. Wiedemann had failed to meet the requirements of Miss. R. App. P. 46(b) and Miss. R. Civ. P. 11(a). Miss. R. App. P. 46(b), which sets forth the procedure by which foreign attorneys may be admitted pro hac vice in Mississippi, provides in pertinent part that “[a] foreign attorney shall not appear in any cause except as allowed pro hac vice under this Rule 46(b).”  Otherwise put, Rule 46(b) prohibits an out-of-state attorney from appearing in any case unless the attorney is admitted pro hac vice by associating in the cause with local counsel and by filing a verified application, a clerk’s statement, and a $200 filing fee. Pursuant to Rule 46(b)(11)(iii), a “[v]iolation of this rule is deemed to be the unlawful practice of law.”    

Equally, Miss. R. Civ. P. 11(a) requires that every pleading or motion of a party represented by an attorney be signed by at least one attorney of record and provides in part that:

[t]he signature of the attorney who is not regularly admitted to practice in Mississippi, except on a verified application for admission pro hac vice, shall further constitute a certificate by the attorney that the foreign attorney has been admitted in the case in accordance with the requirements and limitations of Rule 46(b) of the Mississippi Rules of Appellate Procedure. * * *   

According to Rule 11(a), if a pleading is not signed or is “signed with the intent to defeat the purpose of this rule,” it may be stricken as a sham or false, and the action may proceed as if the pleading or motion had never been served. Pursuant to Rule 11(b), a willful violation of the rule may subject an attorney to disciplinary action.

Applying this analysis to the instant case, the court concluded that the December 2005 complaint “filed” by Mr. Wiedemann was, in fact, properly refused by the circuit clerk, stricken from the record, and thus legally invalid. As a result, Mr. Mitchell’s complaint was time-barred. Further noting that Mr. Wiedemann may have violated his ethical duty not to engage in the unlawful practice of law when he attempted to file the complaint in Mississippi court without being admitted pro hac vice, the court opined that Mr. Wiedemann’s conduct may merit discipline by both the Mississippi and Louisiana State Bars.

Significance of Case
State based unauthorized practice rules may matter less now than they did in the past. Nevertheless, this does not mean that they are irrelevant ― especially when litigation is involved.

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