Clarendon America Ins. Co. v. Hickok

• Decision Date: 10 May 2007
• Docket Number: No. 06-889.,06-889.
• Citation: 257 S.W.3d 43,370 Ark. 41
• Court: Arkansas Supreme Court
• Parties: CLARENDON AMERICA INSURANCE COMPANY, Appellant, v. George HICKOK; Stone Express; P.A.M. Transport, Inc.; and Liberty Mutual Insurance Company, Appellees.

257 S.W.3d 43

370 Ark. 41

CLARENDON AMERICA INSURANCE COMPANY, Appellant, v. George HICKOK; Stone Express; P.A.M. Transport, Inc.; and Liberty Mutual Insurance Company, Appellees.

No. 06-889.

Supreme Court of Arkansas.

May 10, 2007.

Rehearing Denied June 14, 2007.

Davis, Wright, Clark, Butt & Carithers, PLC, by: Constance G. Clark, Fayetteville; and Gibson, McClure, Wallace & Daniels, by: Jay M. Wallace, Dallas, TX, for appellant.

Warner, Smith & Harris, PLLC, by: Wayne Harris, Fort Smith, for appellee P.A.M. Transport, Inc.

Ledbetter, Cogbill, Arnold & Harrison, LLP, by: James A. Arnold, II, and Jeffrey D. Rickard, Fort Smith, for appellee Liberty Mutual Insurance Company.

ANNABELLE CLINTON IMBER, Justice.

We assumed the instant case from the Arkansas Court of Appeals, pursuant to Ark. R. Sup.Ct. 1-2(a)(5) and (d)(1) (2006), for the limited purpose of determining a jurisdictional issue: whether counsel for Appellant Clarendon America Insurance Company (Clarendon America) engaged in the unauthorized practice of law. This case arises out of a dispute between Appellant Clarendon America and Appellees P.A.M. Transport, Inc. (P.A.M.) and Liberty Mutual Insurance Company (Liberty Mutual) as to which company is liable for the payment of workers' compensation benefits to Appellee George Hickok. The events relevant to our analysis of the jurisdictional issue are detailed below:

• On April 12, 2005, the Administrative Law Judge (ALJ) entered an order substituting Jay M. Wallace, an attorney licensed to practice law in Texas, as Claredon America's counsel.

• The ALJ entered findings that P.A.M. and Liberty Mutual were liable for Hickok's injuries.

• P.A.M. and Liberty Mutual appealed the ALJ's decision to the full Workers' Compensation Commission.

• On May 3, 2006, the Commission reversed the ALJ in part, finding Clarendon America liable for Hickok's injuries.

• On May 30, 2006, Wallace filed a notice of appeal, on behalf of Clarendon America, in the Workers' Compensation Commission, which notice contained an incorrect caption.

• On June 6, 2006, Wallace filed a corrected notice of appeal in the Workers' Compensation Commission.

• On July 20, 2006, in response to an inquiry, the Clerk of the Supreme Court sent a letter to P.A.M. and Liberty Mutual's counsel confirming that Wallace was not licensed to practice law in Arkansas.

• On July 28, 2006, Constance G. Clark, an attorney licensed to practice law in Arkansas, filed an entry of appearance as counsel for Clarendon America Insurance in the Workers' Compensation Commission.

• On August 10, 2006, P.A.M. and Liberty Mutual filed a motion to dismiss Clarendon America's appeal in the Arkansas Court of Appeals, arguing that Wallace engaged in the unauthorized practice of law when he filed the notices of appeal without filing a motion pro hac vice.

• On August 17, 2006, Clarendon America filed its response to the motion to dismiss, asserting that the motion was without merit. Clarendon America attached the following exhibits to its response: (1) an affidavit from Wallace stating that he was licensed to practice in Texas's state and federal courts, was in good standing with the Texas bar, submitted to the Arkansas rules of discipline, and that Arkansas attorneys would be allowed to practice in Texas through comity; (2) a copy of Texas's rule concerning comity to nonresident attorneys; (3) a copy of Constance G. Clark's entry of appearance.

• On August 30, 2006, the Court of Appeals initially denied the motion to dismiss, and the record was lodged in that court.

• Between October and December 2006 briefing commenced, and, on April 11, 2007, the Court of Appeals requested certification of the jurisdictional issue to this court.

Admission to the bar of Arkansas and the practice of law in this state is governed by Ark.Code Ann. §§ 16-22-201 through 16-22-212 (Repl.1999 & Supp.2005). Section 16-22-206 states "[n]o person shall be licensed or permitted to practice law in any of the courts of record of this state until he has been admitted to practice by the Supreme Court of this state." "Every person who shall attempt to practice law in any court of record without being licensed, sworn, and registered, as required in this subchapter, shall be deemed guilty of a contempt of court and shall be punished as in other cases of contempt." Ark.Code Ann. § 16-22-209 (Repl.1999).

An attorney licensed to practice law in another state, however, can practice law in Arkansas, for a limited period, if he or she complies with Rule XIV of the Arkansas Rules Governing Admission to the Bar. According to Rule XIV

A lawyer residing outside the State of Arkansas who has been admitted to practice law in the Supreme Court of the United States or in the United States Court of Appeals for the circuit in which the attorney resides or in the Supreme Court or highest appellate court of the state of the attorney's residence, and who is in good standing in the court of the attorney's admission, will be permitted by comity and by courtesy to appear, file pleadings, and conduct the trial of cases in all courts of the State of Arkansas. However, any trial court may require such nonresident attorney to associate a lawyer residing and admitted to practice in the State of Arkansas upon whom notices may be served and may also require that the Arkansas lawyer associated be responsible to the court in which the case is pending for the progress of the case, insofar as the interest represented by the Arkansas lawyer and the nonresident lawyer is concerned.

Unless the State in which the said nonresident lawyer resides likewise accords similar comity and courtesy to Arkansas lawyers who may desire to appear and conduct cases in the courts of that State, this privilege will not be extended to such nonresidential lawyer.

A nonresident lawyer will not be permitted to engage in any case in an Arkansas court unless a written statement is filed with the court in which the nonresident lawyer submits to all disciplinary procedures applicable to Arkansas lawyers.

Bar Admis. R. XIV (2006) (emphasis added).

Here, the issue is whether Wallace engaged in the unauthorized practice of law in Arkansas. Although the Court of Appeals initially denied Appellees' motion to dismiss, we can address the issue of the appellate court's subject matter jurisdiction over an appeal sua sponte. See Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007).

Appellees argue that Wallace was engaging in the unauthorized practice of law when he filed the notices of appeal because Wallace had not filed a motion pro hac vice with this court prior to filing the notices. Citing our past case law, Appellees submit that the notices of appeal were a nullity because Wallace was unauthorized to practice law, and the Court of Appeals never obtained jurisdiction over the appeal. See Preston v. University of Arkansas for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003) Because the thirty-day time period for filing the appeal has elapsed and the notices should be deemed a nullity, Appellees urge this court to dismiss Clarendon America's appeal. See Ark.Code Ann. § 11-9-711(b) (Supp. 2005).

In response, Appellant first contends that Wallace was not required to file a formal motion pro hac vice because the notices of appeal were filed in the Workers' Compensation Commission, which is an administrative forum and not a court. Appellant also asserts that the Commission does not follow the traditional rules of procedure and therefore Wallace was not required to file a motion pro hac vice in that forum. In the alternative, Appellant argues that, even if Wallace was required...