author: ANN WALSH BRADLEY, J.

text:
    Noah Filppula-McArthur, a minor, by his Guardian ad Litem, Janet S. Angus and Lori McArthur, Plaintiffs-Appellants, James T. Ball, Appellant-Petitioner, v. Thomas Halloin, M.D., Bellin Memorial Hospital, Wisconsin Patients Compensation Fund, The Medical Protective Company, St. Paul Fire and Marine Insurance Company, Physicians Insurance of Wisconsin and Green Bay Area Public Schools, Defendants-Respondents. Pamela R. Obey and Tara Cribb, a minor by her Guardian ad Litem, Janet S. Angus, Plaintiffs-Appellants, James T. Ball, Appellant-Petitioner, v. Thomas J. Halloin, M.D., Thomas J. Gallagher, M.D., Medical Center Ob-Gyn Associates, Wisconsin Patients Compensation Fund and Wisconsin Physician Services, Defendants-Respondents, Unknown Insurance Company "ABC", Unknown Insurance Company "DEF" and Unknown Insurance Company "HIJ", Defendants.
    Supreme Court

      Nos. 99-0895, 99-1103.

      Oral argument November 29, 2000.

    Decided February 13, 2001.

      2001 WI 8
    (Also reported in 622 N.W.2d 436.)

      For the appellant-petitioner there were briefs by Daniel W. Hildebrand, Joseph A. Ranney and DeWitt Ross & Stevens S.C., Madison, and oral argument by Daniel W. Hildebrand.

    For the defendants-respondents there was a brief by James R. Gutglass, Sharon R. Long and Gutglass, Erickson & Bonville, S.C., Milwaukee, and Steven J. Caulum and Bell, Gierhart & Moore, S.C., Madison, and oral argument by James R. Gutglass and Robert McCracken.

   ANN WALSH BRADLEY, J.

¶1. The petitioner, Attorney James T. Ball (Ball), seeks review in these consolidated actions of two published court of appeals decisions, each affirming an order revoking his admission to appear pro hac vice before a branch of the Brown County Circuit Court. Ball also seeks review of an order assessing costs and fees against him. The court of appeals concluded that the circuit court did not erroneously exercise its discretion in revoking Ball's pro hac vice admission in either case and also determined that the assessment of costs and fees was not an erroneous exercise of discretion. We agree and accordingly affirm both decisions of the court of appeals.

I

¶ 2. The issues presented arise from two separate medical malpractice actions consolidated for our review. Attorney Ball, who is not licensed to practice law in Wisconsin, represented the plaintiffs in both cases. In each case, the circuit court admitted Ball to practice before the court pro hac vice, but subsequently revoked that privilege. We begin by explaining the facts and procedural history of the two cases in turn.

Filppula-McArthur v. Halloin

¶ 3. Plaintiffs, Noah Filppula-McArthur, a minor, and his mother, Lori McArthur, brought this medical malpractice action against several health care providers and insurers, including Thomas Halloin, M.D., the obstetrician-gynecologist who delivered Noah. The plaintiffs alleged that Noah suffered brain damage as a consequence of Dr. Halloin's negligence at the time of Noah's delivery.

¶ 4. The complaint was filed in Brown County Circuit Court in June 1997, and the case was assigned to Judge John D. McKay. Noah's interests were represented by his guardian ad litem, Wisconsin attorney Janet Angus. Soon after filing the complaint, Attorney Angus moved to have Attorney Ball appear pro hac vice. Upon an affidavit of Attorney Ball, in which he stated that he was in good standing with the Illinois bar and desirous of representing the plaintiffs, Judge McKay admitted him to appear pro hac vice in September 1997. Thereafter Ball assumed the role of plaintiffs' lead counsel in the case.

¶ 5. The record demonstrates several instances of Attorney Ball's failure to comply with Judge McKay's orders during the discovery and pre-trial phases of the litigation. In these instances Ball's compliance was achieved only by court orders issued after defense motions to compel.

¶ 6. Of relevance here is Judge McKay's scheduling order which required plaintiffs' expert witnesses to be identified by April 1, 1998 and deposed by June 1. The order also required discovery to be complete by October 1, with the start of trial scheduled for November 2. However, Ball noticed the deposition of Christopher Inglese, M.D., one of Noah's treating physicians, to be conducted six days before the scheduled start of trial. Dr. Inglese was retained as a treating physician and not as an expert witness.

¶ 7. The defendants moved to quash the notice of deposition of Dr. Inglese arguing that the scheduling order did not allow for depositions to be conducted after October 1. The circuit court agreed and issued an order that reiterated that the scheduling order was still in force and disallowed the Inglese deposition.

¶ 8. In addition to reinforcing the scheduling order, the court ordered Ball's compliance with an August 1998 order to provide defense counsel with a contemplated order of witnesses to be presented at trial. Ball had failed to comply with that order as late as October, explaining to defendants' counsel that because the defendants knew when their case-in-chief would begin "there is no need for you to know the order of my witnesses." Upon a defense motion to compel, the court ordered Ball to promptly provide "opposing counsel with specificity, and in good faith, the contemplated order of presentation of witnesses."

¶ 9. The ensuing trial began as scheduled on November 2. On the first day of trial, Attorney Ball's conduct led the court, in Judge McKay's words, to "admonish" Ball on several occasions. During Ball's opening statement to the jury, Judge McKay sustained numerous defense objections relating to the argumentative nature of Ball's statement and also admonished Ball sua sponte at several points. The court denied a motion for mistrial brought by the defendants following Ball's opening statement, but expressed its concern that the statement was "almost pure argument" in contravention of the court's orders.

¶ 10. Although Attorney Ball and his clients avoided a mistrial on day one, his conduct on the third day of trial brought what was expected to be a three-week trial to an end through a mistrial. The mistrial arose from Attorney Ball's questioning of Dr. Christopher Inglese.

¶ 11. During his opening statement, Ball stated that Dr. Inglese would "testify that Noah's problems are due to hypoxic ishchemic encephalopathy." Concerned that Attorney Ball would attempt to elicit expert testimony regarding the ultimate issues in the case from Dr. Inglese, defense counsel brought the matter to the court's attention outside of the presence of the jury before the witness took the stand. Statements by the court and counsel reveal that Dr. Inglese's testimony was the subject of at least one pretrial discussion.

¶ 12. Attorney Ball explained to the court that Dr. Inglese was not testifying as an expert. Rather, he was testifying as a treating physician:

ATTY. BALL: I can say that we have not retained Dr. Inglese as an expert. We haven't provided him with anything. He's going to testify as to his treatment and his conclusions and his diagnosis now.

The court clarified the allowable bounds of such a witness's testimony:

THE COURT: All right. And to that extent then, he's not entitled to express an opinion regarding the liability issues, the causation issues or the damage issues. He's here to offer testimony regarding his treatment, and his treatment obviously would include his diagnosis.

¶ 13. After Attorney Ball made it clear that Dr. Inglese might testify to the cause of Noah's condition while explaining his diagnoses, the court allowed defense counsel to voir dire the witness. Dr. Inglese explained that he had two diagnoses: an anatomic diagnosis and an etiological diagnosis. The witness understood that testimony relating to the etiology, i.e., cause, of Noah's condition was to be avoided:

DR. INGLESE: If what you'd like me to do is I can avoid talking about etiology.
DEFENSE COUNSEL: That would be fine, and you would be comfortable in doing that and sticking to whatever treatment you rendered and the diagnoses that you had.
ATTY. BALL: I'm not comfortable in doing that, Your Honor. I want to ask him his etiologic diagnosis.
THE COURT: Well, his etiological diagnosis, Mr. Ball, goes to the very question that is being objected to here.
ATTY. BALL: That doesn't—
THE COURT: He's not been disclosed as an expert who's going to establish liability, cause or damages.

¶ 14. After several rounds of questioning of the witness and argument by counsel, the following exchange occurred:

THE COURT: Mr. Ball, I've seen this. We have visited this in detail regarding the pretrial of this matter and the motions that were made. This doctor can testify as to his diagnosis, his prognosis. He cannot testify as to the ultimate issues in this case being liability, cause, or damages. It's that simple.
ATTY. BALL: So he can testify as to his etiologic diagnosis only?
DEFENSE COUNSEL: No.
ATTY. BALL: That's what he just said.
THE COURT: He cannot testify as to the ultimate issues in this case; that being liability, cause and damages.
ATTY. BALL: Understood.
THE COURT: To the extent that his etiological diagnosis does not address any of those three issues, he can testify, but based on what he has indicated in voir dire, his etiological diagnosis directly affects one of — at least one of those issues, and he can't testify to that.

¶ 15. In subsequent argument Attorney Ball attempted to persuade the court to allow him to treat Dr. Inglese as an expert, even suggesting postponement of his testimony so as to provide defense counsel with opportunity to depose the witness. The court maintained its original position on the permissible scope of Dr. Inglese's testimony.

¶ 16. Dr. Inglese then took the stand before the jury. During the course of direct examination, Attorney Ball proceeded to ask a number of prohibited questions relating to the cause of Noah's injuries. The first two questions regarding cause faced objections that were sustained. Near the end of his direct examination, Ball asked the following series of questions:

ATTY. BALL: I think you indicated that you ruled out genetics as a cause for his problems, is that correct?
DR. INGLESE: Correct.
ATTY. BALL: Were you also able to rule out the metabolic cause?
DR. INGLESE: We investigated that thoroughly. We found no explanation.
ATTY. BALL: Were you also able to rule out infection?

¶ 17. At this point defense counsel objected and a sidebar was held. Ball withdrew the last question. At the conclusion of Dr. Inglese's testimony, the defense moved for a mistrial.

¶ 18. The following day, after hearing arguments of counsel recounting the events of the Inglese testimony, the court granted a mistrial. The court explained that the questions eliciting testimony from Dr. Inglese relating to cause were in violation of the court's order. The court noted that Attorney Ball's questions as to cause came after at least three sidebars and the two occasions on which the court defined the parameters of Dr. Inglese's testimony. In the court's opinion, Ball's questioning rendered the case "beyond salvaging."

¶ 19. Two months later the court heard the many post-mistrial motions brought by both sides. Attorney Ball sought reconsideration of substantially every ruling made by the court during the course of the trial. The defendants moved for revocation of Attorney Ball's pro hac vice status and for an assessment of costs and fees against him for his conduct leading to the mistrial. In response, the court assessed against Attorney Ball, personally, costs and reasonable attorney's fees, incurred as a result of the mistrial.

¶ 20. The circuit court then revoked Attorney Ball's pro hac vice status. In doing so Judge McKay explained that Ball's pro hac vice standing was a privilege extended by authority of the supreme court and that the circuit court bears the "responsibility to ensure professional conduct and compliance with the rules of this courtroom." Judge McKay explained the grounds for revocation as follows:

What concerns me is your unwillingness to abide by the rules of this Court, your insistence on revisiting ad nauseaum virtually every decision that this Court renders, your apparent unfamiliarity or disregard for the procedural rules of this jurisdiction, and your continued failure to heed the admonitions from this Court regarding your conduct.
All of that, sir, has resulted in a mistrial. It has placed your client's cause in. . .potential jeopardy. I cannot-more importantly, I will not — permit that to continue, nor will I permit it to reoccur. You have abused your privilege before this Court. I therefore revoke that privilege.

¶ 21. Attorney Ball and his clients subsequently appealed the revocation of his pro hac vice status and the assessment of costs. The court of appeals affirmed, concluding that the circuit court properly exercised its discretion in revoking Ball's pro hac vice admission and in assessing costs against him. Filppula-McArthur v. Halloin, 2000 WI App 79, ¶¶ 13, 17, 234 Wis. 2d 245, 610 N.W.2d 201. The court of appeals found that the circuit court reasonably concluded that Ball's "blatant failure" to follow 'the court's orders evinced an unwillingness to abide by the rules of professional conduct for attorneys, and thus was a valid basis for revocation of pro hac vice under SCR 10.03(4). Id. at ¶ 13.

Obey v. Halloin

¶ 22. The second action is in many ways similar to Filppula-McArthur. It too was a medical malpractice action brought in Brown County Circuit Court by a mother and child against certain medical providers, including Dr. Halloin. Attorney Janet Angus, who again represented the interests of the minor-plaintiff as guardian ad litem, began the action in December 1997. This case was assigned to Judge William Atkinson.

¶ 23. In September 1998, Attorney Angus moved to have Attorney Ball admitted pro hac vice, and upon that motion and an affidavit of Ball, Judge Atkinson granted that request. Ball then assumed an active role in the litigation.

¶ 24. Several months later, Attorney Ball moved for an order "confirming" his pro hac vice status. Apparently, defendants' counsel had suggested that as a result of the revocation in Filppula-McArthur, they would contest Ball's pro hac vice privilege in Obey. In response to Ball's preemptive motion, the defendants filed an affidavit of Dr. Halloin objecting to Attorney Ball's continued involvement in Obey, a copy of Judge McKay's order revoking Ball's pro hac vice privilege in Filppula-McArthur, and the transcript of the hearing at which Judge McKay made his ruling. At an ensuing hearing the defendants explicitly moved for revocation of Ball's status.

¶ 25. After hearing argument on the motions, Judge Atkinson postponed his ruling. Judge Atkinson did, however, express his concerns about allowing Ball to proceed in his courtroom when his conduct in another branch of the same circuit court was sufficient to cause revocation of the privilege to appear. Judge Atkinson said that he did not want to "submit these defendants [and] future Wisconsin jurors, Brown County jurors, in this case to the possibility of a mistrial, as was granted by [Judge McKay]."

¶ 26. Several weeks later, Judge Atkinson issued his order revoking Attorney Ball's pro hac vice admission. Judge Atkinson stated that he had reviewed a partial transcript of Filppula-McArthur, which he noted was a medical malpractice action with nearly identical defendants as before him in Obey. After enumerating the reasons given by Judge McKay for revoking Ball's privilege, Judge Atkinson undertook consideration of several other factors. First, he noted that Attorney Ball's clients had an interest in representation by counsel of their choice. Second, he considered the countervailing interest in the integrity of the judicial system, which dictated "due consideration" of Judge McKay's comments.

¶ 27. Third, Judge Atkinson focused on Attorney Ball's competence to practice law in a Wisconsin court:

Wisconsin has the benefit of extremely competent counsel in all facets of law, including medical malpractice cases. Clearly, there are other attorneys who can competently handle this case and represent the best interests of the Plaintiffs.
Attorney Ball's Illinois residence does not preclude him from obtaining a license to practice law in the state of Wisconsin. Mr. Ball can apply for Wisconsin licensure and become a member of this state's bar. . . .Wisconsin's continuing legal education requirements can be utilized by Attorney Ball to address practice concerns noted by Judge McKay.

Weighing these factors, Judge Atkinson concluded it was proper to revoke Ball's pro hac vice admission.

¶ 28. Ball and his clients appealed and the court of appeals affirmed. It concluded that the circuit court had properly exercised its discretion by applying the relevant facts to the appropriate standard, i.e., SCR 10.03(4), and reaching a reasonable conclusion in revoking Ball's pro hac vice admission. Obey v. Halloin, 2000 WI App 99, ¶ 20, 235 Wis. 2d 118, 612 N.W.2d 361. In doing so the court of appeals rejected, among other arguments, Ball's contention that under SCR 10.03(4) a circuit court may not consider conduct that occurred before another court. Id. at ¶ 10. The court of appeals noted that because SCR 10.03(4) allows revocation of pro hac vice status for " 'incompetency to represent a client in a Wisconsin court,'" the rule "by its terms also applies to conduct that has not occurred before the court withdrawing admission." Id. at ¶¶ 8-9.

Í — t

¶ 29. This case presents us with questions of first impression involving the interpretation and application of SCR 10.03(4), in particular the provisions of the rule controlling the revocation of pro hac vice admission to Wisconsin courts. The rule reads, in pertinent part:

A judge in this state may allow a nonresident counsel to appear in his or her court and participate in a particular action or proceeding in association with an active member of the state bar of Wisconsin who appears and participates in the action or proceeding. Permission to the nonresident lawyer may be withdrawn by the judge granting it if the lawyer by his or her conduct manifests incompetency to represent a client in a Wisconsin court or by his or her unwillingness to abide by the rules of professional conduct for attorneys and the rules of decorum of the court.

SCR 10.03(4) (emphasis added).

¶ 30. While the parties agree on the standard of review to be applied in reviewing a circuit court's decision to revoke an attorney's pro hac vice admission under SCR 10.03(4), this court has never addressed the issue. The parties share the opinion that the decision is a matter within the circuit court's discretion. We agree.

¶ 31. This court has described the power to admit an attorney pro hac vice under SCR 10.03(4) as discretionary. State v. Lehman, 137 Wis. 2d 65, 82, 403 N.W.2d 438 (1987); see also State v. Mosley, 201 Wis. 2d 36, 49, 547 N.W.2d 806 (Ct. App. 1996). The power to revoke is likewise a matter within the circuit court's discretion and will be upheld absent an erroneous exercise of discretion.

¶ 32. We will find no erroneous exercise of discretion if the record shows that the circuit court reached a reasonable conclusion after application of the law to the relevant facts. Ness v. Digital Dial Communications, Inc., 227 Wis. 2d 592, 600, 596 N.W.2d 365 (1999). Questions regarding the interpretation of SCR 10.03(4) that arise during our review of the circuit court's exercise of discretion in the actions before us are questions of law subject to our independent review. City of West Allis v. Sheedy, 211 Wis. 2d 92, 96, 564 N.W.2d 708 (1997).

A

¶ 33. To provide context, we begin our discussion with a review of the history, nature, and purpose of pro hac vice admissions. The privilege to appear in a Wisconsin court pro hac vice has been recognized in Wisconsin for more than a century. See In re Mosness, 39 Wis. 509, 510 (1876); see also State v. Russell, 83 Wis. 330, 53 N.W. 441 (1892) ("A foreign counsel may, by special favor, be permitted to appear for his clients in our courts."). The nature of pro hac vice admission to practice before Wisconsin courts has not changed since we described it in 1925:

As a matter of comity the courts of this state have practically always. . .cheerfully conceded the privilege to attorneys of sister states to engage in the conduct of trials in this state. But such has always been recognized as a privilege extended to such outside counsel and not as a right to be claimed on their part.

In re Pierce, 189 Wis. 441, 450, 207 N.W. 966 (1926) (citations omitted). Following integration of the state bar, the privilege to appear pro hac vice was incorporated into the State Bar Rules and their progeny, today's Supreme Court Rules.

¶ 34. When a circuit court grants this privilege, both client and counsel benefit. The client will be represented by counsel of his or her choice. The attorney is excused from the normal prerequisites to Wisconsin practice, such as the requisite knowledge of Wisconsin law and procedure (as ensured by a bar examination or the diploma privilege), character and fitness evaluations, and continuing legal education.

¶ 35. However, these prerequisites to practice are safeguards that ensure ethical and competent representation. By allowing counsel to appear pro hac vice, we have removed the safeguards that ensure their clients the same ethical and competent representation required of Wisconsin attorneys. In lieu of such safeguards, we have entrusted to the circuit court the discretionary power to terminate pro hac vice representation.

¶ 36. Today the power to grant and revoke pro hac vice admissions is embodied at SCR 10.03(4). As we explained in State v. Lehman, 137 Wis. 2d 65, 81, 403 N.W.2d 438 (1987), "[t]he purpose of SCR 10.03(4) is to control the unauthorized practice of law and assure that the public 'is not put upon or damaged by inadequate or unethical counsel.'"

With these principles in mind we proceed to review the circuit court's discretionary decision to revoke Attorney Ball's pro hac vice admission in the cases before us.

¶ 37. Under the plain language of SCR 10.03(4), there are three bases for revocation of an attorney's pro hac vice status: (1) manifestation of incompetency to represent a client in a Wisconsin court; (2) unwillingness to abide by the rules of professional conduct for attorneys; and (3) unwillingness to abide by the rules of decorum. In light of the plain meaning of SCR 10.03(4) and our deferential review of discretionary determinations, we conclude that the circuit court did not erroneously exercise its discretion in revoking Attorney Ball's pro hac vice admission in either Filppula-McArthur or Obey.

¶ 38. In Filppula-McArthur, the circuit court delineated the reasons underlying its decision to revoke Attorney Ball's pro hac vice admission. Judge McKay cited Ball's unwillingness to abide by the rules of the court, his insistence on revisiting repeatedly the court's decisions, his continued failure to heed the admonitions of the court regarding his conduct, and Ball's unfamiliarity or disregard for Wisconsin procedural rules. These factors implicate two of the express grounds for revocation under SCR 10.03(4); namely an unwillingness to abide by the rules of professional conduct for attorneys and the manifestation of incompetency to represent a client in a Wisconsin court. The record supports revocation on both grounds.

¶ 39. It is professional misconduct for an attorney to violate the attorney's oath. SCR 20:8.4(g); In re Disciplinary Proceedings Against Beaver, 181 Wis. 2d 12, 22, 510 N.W.2d 129 (1994). As part of the attorney's oath an attorney swears that he or she "will maintain the respect due to courts of justice and judicial officers." SCR 40.15. Thus, a failure to maintain due respect to the courts may constitute a violation of the rules of professional conduct. See In re Disciplinary Proceedings Against Pangman, 216 Wis. 2d 440, 442-43, 574 N.W.2d 232 (1998).

¶ 40. To our knowledge Attorney Ball has never taken Wisconsin's attorney's oath. Nevertheless he is required to abide by the Rules of Professional Conduct for Attorneys and is bound by the oath. See SCR 10.03(4); SCR 20:4.8(g). Judge McKay identified conduct by which Attorney Ball repeatedly transgressed this oath.

¶ 41. With his pretrial maneuverings, Ball evinced a lack of respect for the court and its orders. However, Attorney Ball's disrespect for the court and its rulings was more pronounced during the trial. Rather than heed Judge McKay's admonishments during the opening statement, Ball persisted. Similarly, Ball demonstrated intransigence in the face of the court's repeated evidentiary rulings regarding the allowable scope of Dr. Inglese's testimony. Rather than preserving his objections on the record and proceeding in compliance with the court's directives, Ball repeatedly ignored the court's ruling. Judge McKay explained to Ball multiple times that Dr. Inglese was not to testify as to cause, yet Ball explicitly asked Dr. Inglese questions relating to cause on three separate occasions.

¶ 42. In addition to Ball's unwillingness to abide by the rules of professional conduct, the circuit court's decision in Filppula-McArthur relied on Ball's "incompetency to represent a client in a Wisconsin court." SCR 10.03(4). The circuit court noted Ball's "unfamiliarity" with Wisconsin's procedural rules. The record bears out Judge McKay's determination. If Attorney Ball's transgressions were not the result of willful disregard of the procedural rules, most of those mishaps could only be explained by an unfamiliarity with the procedural rules. For example, his conduct evinced a lack of familiarity with Wis. Stat. § 802.10, which describes the circuit court's prerogative in setting deadlines through its scheduling order. Because competency entails "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation," SCR 20:1.1, we are satisfied that unfamiliarity with the rules of procedure amounts to incompetence, and this is a reasonable basis for pro hac vice revocation.

¶ 43. We next turn to our review of Judge Atkinson's exercise of discretion in Obey. Judge Atkinson's decision rests to a large extent on Attorney Ball's conduct in Filppula-McArthur and Judge McKay's determinations in that case. However, Judge Atkinson engaged in his own review of a partial transcript of Filppula-McArthur and then provided his own, more extensive ruling explaining his decision to revoke Ball's pro hac vice admission. Because Judge Atkinson reached a reasonable conclusion after applying the appropriate standards to the relevant facts we cannot conclude that the decision to revoke in Obey was an erroneous exercise of discretion.

¶ 44. In Obey Judge Atkinson discussed Judge McKay's ruling in Filppula-McArthur, which implicates both an unwillingness to abide by the rules of professional conduct and incompetence. Thereafter, Judge Atkinson emphasized the latter, demonstrating a concern about Attorney Ball's competence to represent clients in a Wisconsin court. As we have stated above, the record reasonably supports the conclusion that Attorney Ball manifested incompetence in Filppula-McArthur, a case sharing parties, subject matter, counsel and closeness in time with the case before Judge Atkinson. As such, there was a reasonable basis for Judge Atkinson's discretionary decision to revoke Ball's pro hac vice admission.

¶ 45. In challenging the circuit court's exercise of discretion in Obey, Attorney Ball argues that a circuit court is without power to revoke pro hac vice privileges for conduct occurring before a different court. Ball also argues that neither the doctrine of inherent powers nor the power to disqualify counsel allows a circuit court to discipline an attorney for conduct occurring before a different court. He claims that a circuit court that does so is disciplining an attorney and is usurping the power of the Board of Attorneys Professional Responsibility (BAPR) to investigate and initiate disciplinary proceedings against pro hac vice attorneys.

¶ 46. Attorney Ball ignores the plain text of the rule establishing a circuit court's power to revoke pro hac vice admissions. As the court of appeals explained in Obey, SCR 10.03(4) allows a circuit court to revoke pro hac vice admission when an attorney "manifests incompetency to represent a client in a Wisconsin court." SCR 10.03(4) (emphasis added). On its face SCR 10.03(4) allows a circuit court to consider an attorney's performance in the courts of this state when deciding whether to revoke pro hac vice admission. Judge Atkinson was thus well within the bounds of SCR 10.03(4) when he considered the conduct that occurred, not merely in a Wisconsin court, but in a courtroom across the hall.

¶ 47. Attorney Ball also misconstrues the nature of the power exercised by the circuit court when revoking pro hac vice admission. Revocation of pro hac vice admission is not a function of attorney discipline. Attorney Ball correctly cites SCR 20:8.5(a) for the proposition that BAPR (now OLR) has the power to discipline attorneys admitted pro hac vice. However, the disciplinary authority over pro hac vice counsel is quite another matter from the granting and withdrawing of the right to appear before a particular court. The circuit court is the sole holder of that power. Ball incorrectly looks to the doctrine of inherent powers and the power to disqualify for the source of such power, because one need look no further than SCR 10.03(4).

B

¶ 48. While we conclude that the plain language of SCR 10.03(4) controls the revocation of pro hac vice admissions and that under those standards the circuit court properly exercised its discretion in both Filppula-McArthur and Obey, we must address the several alternatives to a plain language interpretation of SCR 10.03(4) suggested by Attorney Ball. Ball proposes two substantive standards to be applied under SCR 10.03(4), and also argues that policy reasons dictate against any differential treatment of out-of-state and in-state counsel.

¶ 49. First, Ball contends that the pro hac vice revocation provisions of SCR 10.03(4) should be read to require revocation of pro hac vice admission only for conduct that is "egregious" and is "likely to infect future proceedings." In support of this proposition he cites a smattering of case law from various jurisdictions which apply this standard.

¶ 50. Ball's proposed standard conflicts with the plain language of SCR 10.03(4). He points to no ambiguity in SCR 10.03(4), and Ball offers no other compelling reason why we should open the rule to such a broad interpretation. Also, the case law applying the proposed egregiousness standard is readily distinguishable. In jurisdictions adopting the standard of egregiousness, the rules for pro hac vice revocation do not set forth the same express standard as SCR 10.03(4). See, e.g., Speer v. Donfeld, 969 P.2d 193, 200 (Ariz. Ct. App. 1998) (noting lack of standard controlling revocation in applicable rule).

¶ 51. Attorney Ball's second proposed standard is that under SCR 10.03(4) a court must consider the client's interest in representation by the attorney of his or her choice before revoking an attorney's pro hac vice admission under SCR 10.03(4). Again, he offers a sampling of extra-jurisdictional case law in support of this proposition.

¶ 52. While consideration of the client's interest is praiseworthy and desirable, there is simply no room to construe SCR 10.03(4) as requiring such a consideration. We note that Judge Atkinson specifically considered Attorney Ball's clients' interests in the counsel of their choice before making his revocation decision in Obey. We also note that Judge McKay referenced the clients' interests. We believe it to be a desired practice for the court to weigh the interests of the client in making its revocation determination, but given the plain language of SCR 10.03(4), it cannot be said to be an erroneous exercise of discretion to fail to do so.

¶ 53. The last of Ball's contentions is that policy reasons dictate that a non-Wisconsin attorney's pro hac vice status should not be revoked for conduct that would not warrant removal of a Wisconsin attorney. Citing federal precedent for the proposition of equal grounds for disqualification, Ball argues that subjecting pro hac vice counsel to a "higher standard of conduct" will temper the zeal with which they advocate and thus lead to a disparity in the quality of representation.

¶ 54. We find numerous flaws in Attorney Ball's position and argument. First and foremost, this argument ignores SCR 10.03(4). Attorney Ball offers no suggestion as to how the rule comes into play and does not attempt to reconcile his position with its plain language. The existence of the revocation provision of SCR 10.03(4) simply belies any contention that regularly admitted members of the Wisconsin bar and non-Wisconsin counsel should be subject to revocation of their admission on equal grounds.

¶ 55. Attorney Ball's argument against differential treatment necessarily implies that we are to read SCR 10.03(4) out of our rules. While we have the power to change the rule, such change is generally best accomplished through the rule-making process. Our authority to create and amend the Supreme Court Rules is a function of our regulatory jurisdiction. A change in those rules is properly achieved through a petition initiating the procedures established by our published internal operating procedures and SCR Chapter 98.

¶ 56. Most problematic with Ball's position is that it ignores the fundamental difference between regularly admitted counsel and attorneys admitted pro hac vice. On the one hand, members of the Wisconsin bar are, by the very nature of that membership, authorized to appear before a Wisconsin court. On the other hand, the long line of case law establishing pro hac vice admission in Wisconsin explains that counsel appearing pro hac vice are the recipients of a privilege conferred by this court. As our discussion of the history and purpose of pro hac vice admission above explains, we are satisfied that the differences between pro hac vice counsel and licensed Wisconsin attorneys require differential treatment in order to protect the public.

¶ 57. Ball asserts that differential treatment of pro hac vice counsel is tantamount to subjecting them to a heightened "standard of conduct." However, the revocation provisions of SCR 10.03(4) do not set the standard of conduct expected of pro hac vice counsel at a level higher than that expected of regularly admitted counsel. The standards of conduct expected of all attorneys practicing before a Wisconsin court are set by SCR Chapters 20 and 62. While the implications of a violation of those standards may be more immediate for attorneys admitted pro hac vice, the substantive provisions dictating the conduct expected of counsel are the same as those controlling the conduct of licensed Wisconsin attorneys.

¶ 58. Lastly, Attorney Ball would have us focus on the "chilling effect" and the alleged disparity in quality of representation that results from the difference in treatment. Even if we were, to assume that such a disparity exists, it would not be an appropriate remedy to lessen the degree of competence and ethical integrity we expect of pro hac vice counsel. The appropriate remedy is earnest enforcement of the rules and regulations governing Wisconsin attorneys.

¶ 59. We conclude our discussion of SCR 10.03(4) by noting that we have rejected Ball's arguments regarding heightened standards for pro hac vice revocation not only because they lack support in the text and history of the rule, but also because they would shackle the circuit court's discretionary power which serves to protect the public under that rule. Our courts cannot counteract unprofessional conduct by wavering when forced to respond to it. If the rules are infrequently enforced, they will be frequently violated.

I — I I — I HH

¶ 60. Attorney Ball also challenges the assessment of costs against him arising from the mistrial in Filppula-Mc.Arthur. A circuit court may impose costs on an attorney whose actions have resulted in a mistrial, and we will not disturb that decision absent an erroneous exercise of discretion. Schultz v. Darlington Mut. Ins. Co., 181 Wis. 2d 646, 656, 511 N.W.2d 879 (1994). Ball's sole challenge to the assessment of costs is that the evidentiary ruling regarding Dr. Inglese's testimony was erroneous and therefore the mistrial and the subsequent assessment of costs are premised on an error of law.

¶ 61. Essentially, Attorney Ball asks us to revisit the granting of the mistrial. Ball may not challenge the assessment of costs on these grounds. The order granting the mistrial has never been appealed, and when seeking review at the court of appeals Ball did not argue that the erroneous evidentiary rulings undermined the assessment of costs. Rather, he argued to the court of appeals that his conduct was not of the type deserving sanctions. While Ball's clients appealed the evidentiary rulings, these arguments were unrelated to assessment of costs. Now that his clients are no longer party to the appeal, he seeks to bootstrap his clients' evidentiary issue to his personal challenge to the assessment of costs. We will not allow him to do so, and we will not revisit the evidentiary ruling or the granting of the mistrial.

¶ 62. In the absence of any other challenge to the circuit court's discretionary assessment of costs, we note that the circuit court attributed the mistrial to Ball's misconduct, the same conduct justifying revocation of Ball's pro hac vice status. Because the record reveals that the circuit court made a reasoned determination that Ball's misconduct precipitated the mistrial, we cannot conclude that it erroneously exercised its discretion. See Schultz, 181 Wis. 2d at 656-58.

IV

¶ 63. In sum, we conclude that in both Filppula-McArthur and Obey, the circuit court properly exercised its discretion under SCR 10.03(4) in revoking Ball's pro hac vice admission on the grounds that he manifested an unwillingness to abide by the rules of professional conduct and incompetency to represent a client in a Wisconsin court. In reaching this conclusion we reject the various arguments put forth by Ball in support of a heightened standard of pro hac vice revocation. We also conclude that the assessment of costs and fees arising from the mistrial was not an erroneous exercise of discretion. Accordingly, we affirm both decisions of the court of appeals.

By the Court. — The decisions of the court of appeals are affirmed.

¶ 64. JON P. WILCOX, J. did not participate.

        Filppula-McArthur v. Halloin, 2000 WI App 79, 234 Wis. 2d 245, 610 N.W.2d 201 (affirming the order of the Circuit Court for Brown County, John D. McKay, Judge); Obey v. Halloin, 2000 WI App 99, 235 Wis. 2d 118, 612 N.W.2d 361 (affirming the order of the Circuit Court for Brown County, William M. Atkinson, Judge).

       After the court of appeals' affirmance of the circuit court's orders in both cases, the plaintiffs sought leave to proceed in the circuit court under new counsel. This court granted such leave. Thus, Attorney Ball is the only petitioner before this court in both cases.

       The term "pro hac vice" describes the temporary permission granted to counsel who has not been admitted to practice in a particular jurisdiction to appear before the courts of that jurisdiction for the purpose of participating in a particular case. Black's Law Dictionary 1227 (7th ed. 1999). In Wisconsin, pro hac vice admission and revocation are controlled by Supreme Court Rule 10.03(4) (1998). The practice has existed in Wisconsin since the nineteenth century. See In re Mosness, 39 Wis. 509, 510 (1876). However, only relatively recently has this court used the term to describe Wisconsin's practice. See State v. Lehman, 137 Wis. 2d 65, 81, 403 N.W.2d 438 (1987).
      All subsequent references to the Supreme Court Rules are to the 1998 version.

       Judge McKay later admitted Illinois attorney Ann Herbert, a member of Ball's firm, pro hac vice.

       Ball also named two experts to be brought in rebuttal and noticed their depositions for late October. These included a deposition in California to be conducted twelve days before trial and another in Chicago to be conducted three days before trial. The circuit court disallowed these depositions following a defense motion to strike. The defendants argued that the scheduling order did not contemplate rebuttal experts, and the circuit court reaffirmed the scheduling order. The circuit court also denied Ball's oral motion to amend the scheduling order to allow for rebuttal experts and a subsequent motion for reconsideration brought by Ball. Following the mistrial Ball again moved for reconsideration of the ruling on rebuttal experts.

       The procedural protections required when a circuit court revokes counsel's pro hac vice admission are addressed by this court in Jensen v. Wisconsin Patients Comp. Fund, 2001 WI 9, 241 Wis. 2d 142, 621 N.W.2d 142.

       Originally, the controlling rule stated:
      Any court in this state may by special permission granted by it allow non-resident counsel to appear and participate in a particular action or proceeding in association with an active member of the State Bar of Wisconsin who appears and participates in such action or proceeding.
      State Bar R. 2, § 4 (1956) (reprinted in Wis. Bar. Bull., Oct. 1956, at 19).

       In considering Ball's conduct, the court of appeals in Filp-pula-McArthur concluded that Attorney Ball was in violation of SCR 20:3.4(c). As part of the rule entitled "Fairness to opposing party and counsel," SCR 20:3.4(c) provides that an attorney shall not "knowingly disobey an obligation under the rules of the tribunal except for an open refusal based on an assertion that no valid obligation exists." SCR 20:3.4(c). Although we agree with the conclusion of the court of appeals that the circuit court did not erroneously exercise its discretion, we do not base our analysis on this alleged violation.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process was restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation (OLR).

       Supreme Court Rule 20:8.5, reads in pertinent part:
      (a) Disciplinary Authority. A lawyer admitted to the bar of this state is subject to the disciplinary authority of this state regardless of where the lawyer's conduct occurs. A lawyer allowed by a court of this state to appear and participate in a proceeding in that court is subject to the disciplinary authority of this state for conduct that occurs in connection with that proceeding. For the same conduct, a lawyer may be subject to the disciplinary authority of both this state and another jurisdiction where the lawyer is admitted to the bar or allowed to appear in a court proceeding.
      SCR 20:8.5(a) (emphasis added).

       Attorney Ball cites the following cases: Koller v. Richardson-Merrell, Inc. 737 F.2d 1038 (D.C. Cir. 1984) rev'd on other grounds, 472 U.S. 424 (1985); Board of Educ. v. Nyquist, 590 F.2d 1241 (2d Cir. 1979); Biocore Med. Techs., Inc. v. Khosrowshahi, 181 F.R.D. 660 (D. Kan. 1998); Speer v. Donfeld, 969 P.2d 193 (Ariz. Ct. App. 1998).

       Attorney Ball cites the following cases in support of this proposition: Koller, 737 F.2d 1038, Nuri v. PRC, Inc., 5 F. Supp. 2d 1299 (M.D. Ala. 1998); Biocore Med. Techs., Inc., 181 F.R.D. 660; Nault's Auto Sales, Inc., v. American Honda Motor Co., 148 F.R.D. 25 (D.N.H. 1993); Matter of Abrams, 465 N.E.2d 1 (N.Y. 1984).

       In support of his argument against differential treatment Ball cites United States v. Collins, 920 F.2d 619, 626 (10th Cir. 1990); Koller 737 F.2d at 1054-55; and Cooper v. Hutchinson, 184 F.2d 119, 123 (3d Cir. 1950). We note that not all federal courts follow this approach. See, e.g., Mruz v. Caring, Inc., 107 F. Supp. 2d 596, 604 (D.N.J. 2000) (citing local rule allowing revocation of pro hac vice admission for failure to abide by-scheduled court dates).

      We do not suggest that the clients in a case such as this must accompany their attorney up the appellate ladder so the attorney may challenge the order granting a mistrial upon which the assessment of costs is premised. After all, where the costs have been assessed against counsel personally, only the attorney has an interest in the assessment of costs. However, we require that the attorney properly preserve the basis for his challenge to the assessment of costs.


source: Caselaw Access Project

author: DIANE S. SYKES, J.

license: Public Domain

text:
    Kathleen Jensen, Bradley Jensen and Erik Jensen (a minor), Plaintiffs-Appellants, State of Wisconsin, Department of Health and Family Services, Plaintiff, v. Wisconsin Patients Compensation Fund, David McPherson, M.D., and Lakeland Medical Center, Defendants-Respondents.

    Supreme Court

      No. 99-2774.

      Oral argument November 29, 2000.

    Decided February 13, 2001.

    2001 WI 9
    (Also reported in 621 N.W.2d 902.)

      For the plaintiffs-appellants there were briefs by Matthew W. O'Neill, Shannon A. Allen and Friebert, Finerty & St. John, S.C., Milwaukee, and oral argument by Matthew W. O’Neill.

    For the defendants-respondents there was a brief by Curtis C. Swanson, Edith F. Merila, Timothy J. Cesar and Axley Brynelson, LLP, Madison, James R. Gutglass, Sharon R. Long and Gutglass, Erickson & Bonville, S.C., Milwaukee, and Paul J. Pytlik and Otjen, Van Ert, Leib & Weir, S.C., Milwaukee, and oral argument by Curtis Swanson and James R. Gutglass.

      Motion for reconsideration denied June 19, 2001. Please see per curiam opinion 244 Wis. 2d 398.

   DIANE S. SYKES, J.

¶ 1. The issue in this case is whether an attorney admitted pro hac vice has the right to notice and an opportunity to be heard before his or her pro hac vice admission can be revoked. The issue arose in this medical malpractice action when the circuit court granted a mistrial based upon "reprehensible" pretrial and trial conduct by the plaintiffs' attorney, who was licensed in Illinois but admitted in Wisconsin for purposes of this case. Five days after the mistrial, without notice or hearing, the circuit court sua sponte issued an order withdrawing the attorney's pro hac vice admission.

¶ 2. The plaintiffs and their attorney obtained leave to appeal the circuit court's nonfinal order, and the court of appeals certified the question of the attorney's right to notice and hearing to this court. Wis. Stat. (Rule) § 809.61 (1997-98). We conclude that as a matter of judicial policy, and in accordance with the proper administration of the justice system, notice and an opportunity to respond are necessary prerequisites to the revocation of an attorney's pro hac vice status. Accordingly, we reverse the order of the circuit court rescinding the pro hac vice admission of the plaintiffs' attorney in this case, and remand for further proceedings.

HH

¶ 3. Kathleen Jensen, her husband Bradley Jensen, and their minor son Erik Jensen filed this medical malpractice action in Walworth County Circuit Court against Wisconsin Patients Compensation Fund, Dr. David McPherson, and Lakeland Medical Center. They alleged negligence in connection with Erik's delivery that damaged his spinal cord and rendered him a paraplegic. Pursuant to SCR 10.03(4) (1998), the Jensens petitioned the circuit court for pro hac vice admission of Lee Phillip Forman, an attorney from Chicago, Illinois. According to an affidavit submitted by a Wisconsin attorney in support of Forman's admission, Forman had been asked to participate in this case because it was a complicated medical malpractice action and For-man had more than 30 years of experience handling such matters.

¶ 4. The circuit court granted the petition by written order, citing SCR 10.03(4) and specifically stating that permission to appear pro hac vice may be withdrawn "if [Forman] manifests incompetency to represent a client in a Wisconsin court or. . .unwillingness to abide by the code of professional responsibility and the rules of decorum of the Court."

¶ 5. A jury trial commenced on October 4, 1999, before the Honorable Michael S. Gibbs. On October 6, 1999, during the testimony of plaintiffs' expert, Dr. Richard D. Jacobson, defense counsel objected that the doctor's trial testimony differed from his earlier deposition testimony. The jury was excused, and the court heard argument from counsel and allowed a voir dire of the witness.

¶ 6. Defense counsel noted that at the time of his deposition, Dr. Jacobson had offered only a rather tentative opinion that some event during Erik's birth, perhaps a manipulation to correct the baby's breech position, had possibly caused the spinal cord damage. The doctor had testified that in order to form an opinion to a reasonable medical probability he would need to review all of the medical records and relevant depositions, as well as search the literature, and that he had not done so at the time of his deposition. Defense counsel had asked Forman at the deposition to advise them if Dr. Jacobson was provided with the additional information so that they could conduct a follow-up deposition to determine whether he would be changing his opinion.

¶ 7. Dr. Jacobson admitted during the voir dire that Forman had in fact given him additional materials after the deposition, and that his review of those materials had "solidified" or "firmed up" his opinion. Forman argued that the doctor's trial opinion was basically consistent with his deposition opinion. The circuit court disagreed, however, and found that the trial testimony "was a significant and substantial change in Dr. Jacobson's testimony when compared with his deposition testimony."

¶ 8. Based upon Forman's failure to notify defense counsel of the changed circumstances surrounding Dr. Jacobson's opinion, the circuit court granted the defendants' motion for a mistrial:

This is a very straightforward process and procedure, and I don't know why you can't just do it that way. This sneaking around with this new opinion when you knew it at least a week and a half ago, it is repulsive....
But I'm telling you, this makes me sick for your clients, Mr. Forman, because you've left them hanging out there like this, but that's not my problem. That's your problem.
I'm going to grant the mistrial because I think you've made such a mess out of this, Mr. Forman, that this case can't even go forward. Your behavior here is unbelievable. It's reprehensible. And your lack of preparation for this trial and your inability to play within the rules has-it's created every one of these problems.

¶ 9. Five days later, without notice or an opportunity to be heard, the circuit court sua sponte entered an order rescinding Forman's permission to appear pro hac vice as counsel for the Jensens. The order cited SCR 10.03(4) and stated that Forman "has by his conduct manifested incompetency to represent a client in a Wisconsin court and has not abided by the code of professional responsibility and the rules of decorum of the Court."

¶ 10. Forman filed a motion for reconsideration, reasserting that Dr. Jacobson's trial testimony was consistent with his deposition testimony. He argued that the circuit court's order deprived him of the right to practice his profession and deprived the Jensens of their right to counsel of their choice. He also argued that the order had been entered without notice or an opportunity to respond. The circuit court entered its written findings of fact and order granting the mistrial, but did not specifically address Forman's motion for reconsideration of the revocation of his pro hac vice status.

¶ 11. The court of appeals granted leave to appeal the narrow question of whether there is a right to notice and an opportunity to be heard before a circuit court withdraws an attorney's pro hac vice admission. The court of appeals then certified the question to this court, and we accepted the certification.

¶ 12. Resolution of the certified question begins with the Supreme Court Rule governing admission of attorneys pro hac vice:

A judge in this state may allow a nonresident counsel to appear in his or her court and participate in a particular action or proceeding in association with an active member of the state bar of Wisconsin who appears and participates in the action or proceeding. Permission to the nonresident lawyer may be withdrawn by the judge granting it if the lawyer by his or her conduct manifests incompetency to represent a client in a Wisconsin court or by his or her unwillingness to abide by the rules of professional conduct for attorneys and the rules of decorum of the court.

Supreme Court Rule 10.03(4). The Rule commits the decision to grant or withdraw pro hac vice admission to the discretion of the trial court. Filppula-McArthur v. Halloin, 2001 WI 8, 241 Wis. 2d 110, 622 N.W.2d 436.

¶ 13. Pro hac vice admission has always been considered a privilege rather than a right:

As a matter of comity, the courts of this state have practically always.. .except in criminal proceedings on behalf of the state. . .cheerfully conceded the privilege to attorneys of sister states to engage in the conduct of trials in this state. But such has always been recognized as a privilege extended to such outside counsel and not as a right to be claimed on their part. . . . There can be no question but that many lawyers of prominence have carried on substantial business in more than one state at the same time and without question or criticism. The extent to which such privilege may be extended is a matter for the courts of each state to determine when a question in that regard is presented in any particular situation.

In re Pierce, 189 Wis. 441, 450, 207 N.W. 966 (1926) (citations omitted). The United States Supreme Court has held that an attorney does not have a constitutional right to be admitted pro hac vice. Leis v. Flynt, 439 U.S. 438, 442-43 (1979).

¶ 14. The Jensens and Forman contend, however, that once an attorney has been admitted pro hac vice in a particular case, the attorney acquires a limited property interest that requires the due process protections of notice and an opportunity to be heard before that status may be revoked. This is an issue of first impression in this state.

¶ 15. Some jurisdictions have concluded that attorneys have a limited property interest in pro hac vice admission, entitling them to notice and an opportunity to be heard as a matter of constitutional due process before that status can be revoked. Other jurisdictions have sidestepped the constitutional argument and found that notice and an opportunity to respond are required for policy reasons.

¶ 16. We conclude that, for reasons of policy and sound judicial administration, attorneys should receive notice and some opportunity to respond before pro hac vice admission is revoked. Accordingly, we do not reach the constitutional question. Labor and Farm Party v. Election Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984) (courts generally do not consider constitutional questions when the case is resolvable on other grounds); see also Zander v. County of Eau Claire, 87 Wis. 2d 503, 519, 275 N.W.2d 143 (Ct. App. 1979).

¶ 17. The United States Court of Appeals for the Third Circuit adopted this approach in Johnson v. Trueblood, 629 F.2d 302 (3d Cir. 1980) (per curiam), and we find its treatment of the issue persuasive. In Johnson, the Third Circuit held that some type of notice and an opportunity to respond were necessary when a court sought to revoke an attorney's pro hac vice status. The court reached its decision not on constitutional due process grounds but as a matter of judicial policy. In Johnson, the trial court, sua sponte and without notice, had revoked an attorney's pro hac vice status as a result of his disruptive and unprofessional conduct. Id. at 302. The court of appeals reversed the trial court and said that some form of notice and an opportunity to respond were required, for these reasons:

[S]ome sort of procedural requirement serves a number of salutary purposes. It ensures that the attorney's reputation and livelihood are not unnecessarily damaged, protects the client's interest, and promotes more of an appearance of regularity in the court's processes.

Id. at 303.

¶ 18. The court in Johnson allowed for some flexibility of procedure, recognizing that the decision is discretionary in the trial court and some circumstances may not require formal notice and full hearing. Id. at 303-04. Accordingly, the court left the form of the notice to the discretion of the trial court, specifying only that it identify two things: "the conduct of the attorney that is the subject of the inquiry, and the specific reason this conduct may justify revocation." Id. at 304.

¶ 19. As for the opportunity to respond, the court in Johnson held that a full-scale hearing is not required in every case. Id. at 304. "All that we will mandate is that the attorney be given a meaningful opportunity to respond to identified charges." Id. Again, the court left the nature and scope of the opportunity to respond to the discretion of the trial court. Id.

¶ 20. We agree with the flexible approach of the Third Circuit in Johnson. We therefore conclude that, for reasons of judicial policy, attorneys admitted pro hac vice must be provided some form of notice and an opportunity to respond before pro hac vice status may be withdrawn under SCR Rule 10.03(4). The form of the notice and opportunity to respond is left to the sound discretion of the circuit court, provided, however, that the attorney is notified of the conduct which is alleged to violate SCR 10.03(4) and the specific reason this conduct may justify revocation under the rule.

¶ 21. The defendants contend that Forman was effectively put on notice that his pro hac vice status was in jeopardy when the circuit court ruled on the mistrial motion. They also contend that Forman had ample opportunity to respond during the course of the argument on the motion.

¶ 22. While it is true that the circuit court explicitly and forcefully placed the blame for the mistrial squarely on Forman, revocation of the attorney's pro hac vice admission was never mentioned as a possible sanction for his conduct. Mistrial, attorneys' fees, and costs were the only remedies under consideration. The circuit court's sua sponte order rescinding Forman's pro hac vice status came five days later, without any form of notice or an opportunity to respond, formal or otherwise. We find it noteworthy that the circuit court acknowledged as much in an amicus curiae brief and suggested that "if this court should decide that notice and an opportunity to be heard are required, the case. . .should be remanded to the Circuit Court for notice and hearing."

¶ 23. We agree and therefore reverse the circuit court's order revoking Forman's pro hac vice admission and remand the cause to the circuit court for further proceedings consistent with this opinion.

By the Court. — The order of the Walworth County Circuit Court is reversed and the cause remanded.

      Pro hac vice is defined as: "For this turn; for this one particular occasion. For example, an out-of-state lawyer may be admitted to practice in a local jurisdiction for a particular case only." Black's Law Dictionary 1227 (7th ed. 1999).

       All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

       All subsequent references to the Wisconsin Supreme Court Rules are to the 1998 version.

       See Bank of Hawaii v. Kunimoto, 984 P.2d 1198, 1214 (Haw. 1999) (holding that once a nonresident attorney has been granted pro hac vice status in a case by a judge, the nonresident attorney gains a "limited property interest" that is held pursuant to Hawaii Supreme Court Rules and that the deprivation of this property interest previously held under state law must be in accord with requisite constitutional safeguards); see also Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1371-72 (11th Cir. 1989)(holding that it was clear that admission of an attorney pro hac vice constitutes a property interest entitled to due process protection because an attorney admitted pro hac vice enjoys the same basic procedural rights as regular counsel).

        See Taberer v. Armstrong World Indus., Inc., 954 F.2d 888 (3d Cir. 1992); United States v. Collins, 920 F.2d 619 (10th Cir. 1990); United States v. Summet, 862 F.2d 784 (9th Cir. 1988); Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C. Cir. 1984) rev'd on other grounds, 472 U.S. 424 (1985); Johnson v.

        Trueblood, 692 F.2d 302 (3d Cir. 1980); Hallman v. Sturm Ruger & Co., Inc., 639 P.2d 805 (Wash. Ct. App. 1982).


author: PER CURIAM.

text:
    Connie G. Powell, Plaintiff-Respondent, v. Arlene M. Cooper and Calvin Stoudt, Defendants-Appellants-Petitioners.
    Supreme Court

      No. 98-0012.

      Oral argument September 6, 2000.

    Decided February 16, 2001.

    2001 WI 10
    (Also reported in 622 N.W.2d 265.)

      For the defendants-appellants-petitioners the cause was argued by Mary Batt, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the plaintiff-respondent there was a brief by John E. Joyce, Menomonie, and oral argument by John E. Joyce.

   PER CURIAM.

¶ 1. Dr. Arlene M. Cooper and Dr. Calvin Stoudt (Drs. Cooper and Stoudt), faculty at the University of Wisconsin-Stout, seek review of an unpublished decision of the court of appeals, affirming in part an order of the Circuit Court for Dane County, Paul B. Higginbotham, Judge. The court of appeals held that Drs. Cooper and Stoudt were not entitled to dismissal of a suit brought under 42 U.S.C. § 1983 by Connie Powell (Powell). Powell, who had been a graduate student at the Stout campus, alleged that actions taken by Drs. Cooper and Stoudt had deprived her of an interest protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Drs. Cooper and Stoudt argue that Powell has not set forth a legally sufficient complaint alleging a deprivation of a constitutionally protected interest. Alternatively, Drs. Cooper and Stoudt contended that they are entitled to qualified immunity.

¶ 2. In this review we reach two issues. First, the court is evenly divided upon the question of whether Powell's complaint alleged the violation of a clearly established constitutionally protected property right such that defendants are not entitled to qualified immunity. Accordingly, we affirm the court of appeals' conclusion that Drs. Cooper and Stoudt are not entitled to qualified immunity from Powell's § 1983 claim based upon a deprivation of a property interest in continuing a course of study.

¶ 3. Second, the court unanimously reverses the court of appeals' conclusion that Powell's complaint states a claim asserting a liberty interest in refusing to unnecessarily disclose her mental health history. In her complaint, Powell did not assert a claim based upon a constitutionally protected liberty interest. Accordingly, we conclude that Powell waived an assertion of such a claim.

¶ 4. In addition to these two issues, we also address a procedural question relating to interlocutory appeal from a circuit court order denying a state official's claim of qualified immunity in a § 1983 action. The court of appeals concluded that although it is required to grant such a petition when it is initiated in a timely manner following a motion for summary judgment, the court may, in its discretion, grant such petitions after a motion to dismiss. Powell v. Cooper, No. 98-0012, unpublished slip op. at 16 n.5 (Wis. Ct. App. July 22, 1999). We agree. When a petition for interlocutory review is filed prior to the litigation reaching the summary judgment stage, the court of appeals may exercise its discretion in determining whether to grant review of the qualified immunity issue.

HH

¶ 5. On motion to dismiss, and for purposes of qualified immunity analysis, the facts set forth in the pleadings are accepted as true. Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 463, 565 N.W.2d 521 (1997). In her amended complaint, Powell asserts that in 1987 she matriculated into the graduate student program in guidance and counseling at the University of Wisconsin-Stout. Powell told her academic advisor, Dr. David Cook, that she suffered from a manic-depressive disorder. Dr. Cook advised Powell that her condition would not affect completing the program.

¶ 6. Powell fulfilled all the requirements to obtain her degree, except for completing a practicum and master's thesis. In December 1990 Powell spoke to Dr. Cooper about scheduling the practicum for the spring of 1991. Powell informed Dr. Cooper of her manic-depressive disorder. Subsequently, Dr. Cooper declined to schedule Powell into the practicum program.

¶ 7. In January 1991 Powell met with Drs. Cooper and Stoudt. At the meeting, Powell was informed that she would be permitted to undertake the practicum if she agreed to disclose her manic-depressive condition to the site supervisor. Powell refused to make this disclosure. As a result, she was not allowed to undertake the practicum and could not complete her course of study.

¶ 8. In January 1997 Powell filed suit against Drs. Cooper and Stoudt. Powell asserted that the actions by Drs. Cooper and Stoudt had deprived her of an interest protected by both the procedural and substantive aspects of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The defendants filed a motion to dismiss, which was denied by the circuit court. The circuit court concluded that Drs. Cooper and Stoudt were not entitled to qualified immunity because in January 1991 the law was clearly established that Powell had a constitutionally protected property interest in continuing her graduate school program, which could not be denied without a hearing. In addition, the circuit court held that the actions by Drs. Cooper and Stoudt were arbitrary and capricious.

¶ 9. Subsequently, Drs. Cooper and Stoudt petitioned for interlocutory review. The court of appeals granted the petition and affirmed the circuit court. Drs. Cooper and Stoudt then petitioned this court to review the decision of the court of appeals, which was granted.

¶ 10. We begin by determining whether the court of appeals properly concluded that Powell had filed a complaint alleging a deprivation of both a constitutionally protected property and liberty interest. Whether a complaint states a claim upon which relief can be granted is a question of law, which this court reviews without deference to lower courts. Weber v. City of Cedarburg, 129 Wis. 2d 57, 64, 384 N.W.2d 333 (1986). The court of appeals also concluded that Drs. Cooper and Stoudt were not entitled to qualified immunity. Application of the doctrine of qualified immunity is also a question of law, which we decide independently. Arneson v. Jezwinski, 225 Wis. 2d 371, 592 N.W.2d 606 (1999).

rH ¡-H Í — I

¶ 11. The Fourteenth Amendment protects certain liberty and property interests. In this case, the court of appeals determined that Powell's amended complaint alleged a clearly established property interest in continuing the course of study she had begun at the university. Powell v. Cooper, No. 98-0012, unpublished slip op. at 9 (Wis. Ct. App. July 22, 1999). In addition, the court of appeals held that Powell had claimed a liberty interest, which it identified as a privacy right in avoiding unnecessary disclosure of her mental health history. Id. at 10. The court of appeals concluded that Drs. Cooper and Stoudt were not entitled to qualified immunity because Powell's due process claims were grounded on clearly established property and liberty interests. Id. at 19.

¶ 12. We consider first Powell's assertion that she has a property interest in continuing her course of study begun at the university. Drs. Cooper and Stoudt contend that there is no such constitutionally protected property right and, as a result, there can be no due process violation. This court is equally divided on the question of whether Drs. Cooper and Stoudt are entitled to qualified immunity on this issue. Justices Ann Walsh Bradley, N. Patrick Crooks and David T. Pros-ser would affirm the court of appeals' conclusion that such a property right existed at the time in question, was clearly established, and accordingly the defendants were not entitled to qualified immunity. Justices William A. Bablitch, Jon P. Wilcox, and Diane S. Sykes would reverse, concluding that even assuming such property right existed at the time, it was not well established and therefore, the defendants were entitled to qualified immunity. Accordingly, the decision of the court of appeals concluding that there is a constitutionally protected property right in continuing her course of study, and that the defendants were not entitled to qualified immunity on that issue, is affirmed.

¶ 13. We turn next to consider the conclusion by the court of appeals that Powell sufficiently alleged a clearly established liberty interest in not unnecessarily disclosing her mental health history. On this issue, we unanimously reverse.

¶ 14. It is well established that pleadings are to be liberally construed. Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979). A claim should not be dismissed unless it appears to a certainty that no relief can be granted under any set of facts that a plaintiff can prove in support of his or her allegations. Id. The court of appeals construed Powell's complaint as asserting a liberty interest. However, Powell's complaint does not set forth any statement concerning a liberty interest, and at oral argument before this court, counsel for Powell stated that she did not plead a liberty interest. Under these circumstances, we concluded that the court of appeals' finding of a clearly established liberty interest in refusing to unnecessarily disclose her mental health history must be reversed.

¶ 15. Finally, the decision of the court of appeals presents an opportunity for this court to clarify the circumstances under which the court of appeals is required to grant a petition for interlocutory appeal from a circuit court order denying a state official's claim of qualified immunity in a § 1983 action. The court of appeals concluded that under Arneson v. Jezwinski, 206 Wis. 2d 217, 556 N.W.2d 721 (1996) (hereinafter Arneson I), as clarified in Penterman, that it is required to grant a petition for interlocutory review of a denial of qualified immunity when it follows a summary judgment motion; however, on motion to dismiss the court may, in its discretion, grant such an appeal if it determines that review of the qualified immunity issue is not premature. We agree.

¶ 16. In Arneson I, we directed the court of appeals to grant every petition for interlocutory appeal from a circuit court order denying a state official's claim of qualified immunity in a § 1983 action "so long as the circuit court order is based on an issue of law, such as whether the federal right allegedly violated was clearly established at the time the action was taken. . . ." Arneson I, 206 Wis. 2d at 220. When qualified immunity is raised as an affirmative defense, the plaintiff has the burden of demonstrating by closely analogous case law that the defendant violated a clearly established constitutional right. Penterman, 211 Wis. 2d at 469. The question presented in such a case "is whether a reasonable state official could have believed his or her act was constitutional 'in light of clearly established law and the Information [he or she] possessed' at the time of, the official's action." Penterman, 211 Wis. 2d at 470 (quoting Burkes v. Klauser, 185 Wis. 2d 308, 326, 517 N.W.2d 503 (1994)). This inquiry is fact specific and "focuses on the circumstances with which the official is confronted." Id. at 471-72.

¶ 17. For the reasons set forth in Arneson I, we continue to conclude, pursuant to the this court's superintending power over lower state courts in article VI, section 3 of the Wisconsin Constitution, that the court of appeals should grant these petitions when they arise from a summary judgment order that turns on an issue of law and denies a claim of qualified immunity. However, when the interlocutory appeal arises on motion to dismiss, the court of appeals should exercise its sound discretion in determining whether or not to grant the petition. In a given case the facts and circumstances confronting the state official may not be sufficiently developed on motion to dismiss for the reviewing court to reach any other conclusion than to affirm the circuit court's denial of a qualified immunity claim.

¶ 18. The primary benefit of qualified immunity is immunity from suit. Arneson I, 206 Wis. 2d at 226. This benefit is lost if a case erroneously proceeds to trial. However in the proper case, and under the sound discretion of the court of appeals, allowing the action to proceed from motion to dismiss to the summary judgment stage will continue to provide officials with the benefit of this affirmative defense.

¶ 19. We conclude, therefore, that an interlocutory appeal from a circuit court's denial of qualified immunity shall be granted when it arises on motion for summary judgment, and is discretionary under the criteria set forth in Wis. Stat. § 808.03(2) (1997-98) when it arises from a motion to dismiss.

By the Court. — The decision of the court of appeals is affirmed in part, reversed in part, and the cause remanded to the circuit court.

¶ 20. SHIRLEY S. ABRAHAMSON, C.J., did not participate.

        Powell v. Cooper, No. 98-0012, 1999 WL 516756, 1999 Wisc. App. LEXIS 794 (Wis. Ct. App. July 22, 1999).

       42 U.S.C. § 1983 provides in part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other property proceeding for redress....