In a case that left us rolling our eyes over how such an absurdly ridiculous trial court ruling had to be fixed by the highest court in the state, the Texas Supreme Court has (with great restraint) granted mandamus ordering an El Paso trial court to vacate its order denying the defendant’s out-of-state lawyers from appearing on its behalf in the court.
In re AutoZoners, LLC (No. 22-0719; April 26, 2024) arose from an age discrimination case filed by an employee against AutoZoners, his employer. Defendant’s answer was signed by a Texas attorney (a member of one of the finest defense firms in the state, by the way). The answer also included in the signature box the names and contact information of attorneys from Miami and New Orleans, both of whom are with the same firm. They both duly indicated that their applications for pro hac vice were forthcoming. Four days after filing the answer, those applications came forth. Plaintiff’s counsel threw a fit, claiming without evidence that since the answer “didn’t look like” anything the Texas defense counsel had filed before, it must have been prepared and signed by the nefarious out-of-state lawyers before they were admitted. After a hearing, the trial court highhandedly denied them admission, stating that he “[found] it offensive . . . that they’re signing documents before being admitted. Even if it’s conditional, you don’t do that. So on that point alone, I’m denying the motions.”
OK, but seriously? Apparently so, since the El Paso Court of Appeals denied Defendant’s understandable petition for writ of mandamus. That’s almost as incredible as the trial court’s hissy fit, but at least the court of appeals made the effort to analyze the case under the appropriate standards, Rule 19, Tex. Rules Govern. Bar Adm’n, and § 81.101(a), Government Code, which defines the unauthorized practice of law. Under the Rule 19, a trial court has the discretion to admit attorneys pro hac vice unless “the court determines that the non-resident attorney is not a reputable attorney who will observe the ethical standards required of Texas attorneys, that the non-resident attorney has been appearing in courts in Texas on a frequent basis, that the non-resident attorney has been engaging in the unauthorized practice of law in [Texas], or that other good cause exists.” It looks like the trial court based its ruling on the unauthorized practice of law clause, though there is really no telling why the court acted that way. Be that as it may, the statutory definition includes the “preparation of a pleading or other document incident to an action or special proceeding,” as well as “management of an action or proceeding on behalf of a client before a judge in court” or “service rendered out of court, including giving of advice or [] rendering any service requiring the use of legal skill or knowledge . . . .”
Faced with a clearly bogus trial court ruling and a court of appeals opinion which overreached (we suspect to give the trial court some much-needed cover), a per curiam SCOTX, in layman’s terms, took the lower courts to the woodshed. First, the Court pointed out that pleadings include out-of-state lawyers all the time and, as long as a licensed Texas attorney is listed first and signs the pleading, admitting those lawyers is a pro forma matter. After all, the rules of civil procedures (Rule 8 and Rule 13) provide that the first signer is the “attorney-in-charge” and that the signer takes full responsibility for the pleading. Just because out-of-state lawyers follow the attorney-in-charge pending admission is no evidence that they did anything, much less practice law without a license. Second, the attorneys seeking admission filed their applications four days after the answer was filed, just as they promised. Nothing weird about that.
The Court then turned to the court of appeals tortured guesses about what the trial court really meant. Plaintiff tried to show by cross-examining the attorneys that they wrote the pleading and their puppet Texas lawyer signed it. They flatly denied doing so but acknowledged that they provided largely factual impact to the Texas attorney preparing the answer. As the Court patiently explained, receiving input from non-resident lawyers is common and does not constitute the unauthorized practice of law. Next, the court of appeals reasoned that the trial court could have denied the motion because the out-of-state lawyers frequently appeared in Texas courts (thus evading being licensed in Texas) or perhaps because one of the attorneys had been the subject of an unpublished U.S. Fifth Circuit opinion that critized her “rather aggressive” voir dire and closing argument (though it found no reversible error in the case and no sanctions or complaints resulted). The Court, undoubtedly sighing at these overstretched rationales, pointed out that one of the attorneys had appeared in five Texas cases in 30 years, in five of which she requested admission. There was no mention of the New Orleans lawyer having previously appeared in Texas. Hardly an “abuse” of the system. As to the Fifth Circuit commentary, the Court pointed out that it came to absolutely nothing. In fact, there was no question that, based on her 30-year career, the attorney was “a reputable attorney who will observe the ethical standards required of Texas attorneys.” All of this nonsense “fail[ed] as a matter of law.”
Who knows what put this bee under the trial court’s bonnet, but we hope he is duly embarrassed at having made this dumb order. That’s the kind of thing that gives our courts a bad name and undermines faith that judges will simply apply the law. Consider the extra fees and costs that AutoZoners had to pay to take this case all the way up, just to get the ruling they should easily have gotten in the first place. This is simply unconscionable, in our view, and should be called out for what it is.
