Kohlmayer v. National R.R. Passenger Corp., CIV. A. 99-5455 (NHP).

• Decision Date: 20 December 2000
• Docket Number: No. CIV. A. 99-5455 (NHP).,CIV. A. 99-5455 (NHP).
• Citation: 124 F.Supp.2d 877
• Parties: Matthew KOHLMAYER v. NATIONAL RAILROAD PASSENGER CORPORATION
• Court: New Jersey Supreme Court

Page 877

124 F.Supp.2d 877

Matthew KOHLMAYER v. NATIONAL RAILROAD PASSENGER CORPORATION

No. CIV. A. 99-5455 (NHP).

United States District Court, D. New Jersey.

December 20, 2000.

Gregory L. Nester, Marvin I. Barish Law Offices, P.C., Camden, NJ, for Plaintiff.

John A. Bonventre, Landman, Corsi, Ballaine & Ford, Newark, NJ, for Defendants.

POLITAN, District Judge.

Dear Counsel:

This matter comes before the Court on appeal from Magistrate Judge Ronald J. Hedges Order' denying an application of Marvin I. Barish, Esquire ("Mr.Barish") for pro hac vice admission to this Court.¹ The Court heard oral argument on this matter on September 29, 2000. For the reasons articulated herein, Judge Hedges' Order of August 17, 2000 is AFFIRMED.

STATEMENT OF FACTS & PROCEDURAL HISTORY

Mr. Barish is seeking pro hac vice admission in this case as plaintiff's counsel. The plaintiff, Mr. Matthew Kohlmayer ("Mr.Kohlmayer") was allegedly injured in the scope of his employment at National Railroad Passenger Corporation, also known as Amtrak (hereinafter "Amtrak"). Mr. Kohlmayer brings this action under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, and the Railroad Safety Appliance Act, 45 U.S.C. § 1, et seq. See Compl. ¶¶ 1-8. Mr. Barish has represented plaintiffs in many cases instituted under these federal statutes, and in that regard is experienced in this area of the law.

Mr. Barish is a member in good standing of the Bar of the Supreme Court of Pennsylvania² and has previously been admitted pro hac vice in The United States District Court of New Jersey. But pro hac vice admission in this district has been denied to Mr. Barish at least once. In 1996 Judge John W. Bissell denied Mr. Barish's application to practice in this Court; such decision is discussed in greater detail below.

Mr. Barish's conduct in the past few years, while practicing in this Court and in courts of other jurisdictions, has often been uncivilized, and at times unprofessional. Amtrak has filed disciplinary proceedings against Mr. Barish in Pennsylvania as a result of questionable trial tactics in a case involving claims similar to the present claims. As far as this Court is aware, those proceedings are currently pending. No other disciplinary actions are pending against Mr. Barish, and to the Court's knowledge he has never been disciplined by Pennsylvania or any other state's Bar Association.

Judge Hedges denied Mr. Barish's pro hac vice application on the basis of Mr. Barish's past record, finding that his conduct falls below the expectations of the Court. See Kohlmayer v. Nat'l R.R. Passenger Corp., 2000 WL 1276599 (August 17, 2000). Instances of the behavior in question are set forth in more detail throughout this opinion.

DISCUSSION

The question before the Court today is whether an attorney who is a member in good standing of the bar of one state must be admitted to practice pro hac vice in the United States District Court of New Jersey where his past behavior has been uncivilized and unprofessional and has resulted in reprimands, mistrials and wasted judicial time.

In answering this question, the Court is led to the crossroads of ethics and civility. While the line between unethical and uncivilized behavior is often blurred, there is nevertheless a meaningful distinction. Where an attorney violates ethical duties, the Rules of Professional Responsibility apply and formal disciplinary proceedings may result. See L.Civ.R. 103.1, 104.1; In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 160 (3d Cir.1984). General uncivilized or "unlawyerlylike" conduct may not constitute a technical violation of the ethical rules, but such conduct is a stain on the legal profession and often delays the judicial process.

Judge Bassler, in distinguishing civility and ethics, stated that "incivility" is "akin to pornography in that while it may be hard for us to define, we all know it when we see it." Bassler, J. Lost Cause or Last Chance for Civility, N.J. Law Journal, op. ed. at 23, July 10, 1995. Incivility has been defined by the Seventh Circuit Judicial Committee on Civility as "rudeness, hostility, abrasive conduct, and strident personal attacks on opponents." See id.

In recent years, instances of such uncivilized behavior have become commonplace, and most apparent in inter-attorney relations. Today, a kind word, a slap on the back of an adversary, or even the courtesy of a handshake has become so rare that it makes heads turn in courtrooms where this type of behavior occurs. It ought not be so.

Civility is basic and fundamental. It should not only govern one's everyday, personal life, it should govern one's professional life as well. Life is too short to be spent on making enemies. More importantly, our level of civility (or lack thereof) reflects upon ourselves. Civility is the measure of who we are — both to kings and to paupers. If we can accord to the pauper the same respect we might give a king, we have earned the title "civilian." Attorneys everywhere should strive to attain this coveted title.

The New Jersey Bar Association, in conjunction with the Deans of Rutgers School of Law -Newark, Rutgers School of Law-Camden, and Seton Hall Law School, created the Commission on Professionalism in the Law in response to the increase in uncivilized behavior among attorneys. See 51 Rutgers L.Rev. 889, 895 (1999). The primary goal of the commission is "to help improve the professional behavior and attitudes of lawyers and judges." Baisden, Cheryl, "The New Jersey State Bar Association: the First 100 Years," N.J. Lawyer (October, 1999). This is an important goal for the legal profession, and one which may be furthered, at least in part, by this opinion.

A. The Standard for Admission Pro Hac Vice

There is no uniform standard for pro hac vice admission in United States District Courts. District courts therefore mainly rely on state bar admission in determining whether to admit an attorney pro hac vice. See In re Dreier, 258 F.2d 68 (3d Cir.1958); 33 A.L.R. 799 (1977).

In this district, the local rule regarding pro hac vice admission states, in pertinent part, that:

[a]ny member in good standing of the bar of any court of the United States or of the highest court of any state, who is not under suspension or disbarment by any court ... may in the discretion of the Court, on motion, be permitted to appear and participate in a particular case.

L.Civ.R. 101.1(c)(1)(emphasis added). Clearly the rule contemplates that Courts may deny admission pro hac vice, even though the applicant is not currently suspended or disbarred from the practice of law. The scope of discretion has been left to interpretation by the Courts.

It is well-settled that federal courts have wide discretion in granting admission to practice pro hac vice. See Thoma v. A.H. Robins, Co., 100 F.R.D. 344, 348 (D.N.J.1983); see also 7 Am.Jur.2d, Attorney at Law, § 22 (1997). Such discretion cannot, however, be exercised arbitrarily. See Thoma, 100 F.R.D. at 348; see also Comment, The Local Rules of Civil Procedure in The Federal District Courts-A Survey, 1966 DUKE L.J. 1011, 1018.

The question here is whether it is proper for this Court to consider evidence of past inappropriate, uncivilized, and unprofessional behavior by Mr. Barish in determining whether he should be permitted to practice before this Court.

Typically, a liberal approach is taken by federal courts in all jurisdictions in allowing out-of-state attorneys to practice in federal courts of jurisdictions where they are not admitted to the bar. The trend of leniently granting pro hac vice admission stems from the Supreme Court case of Selling v. Radford, which held that even where an attorney was no longer a member of a state bar, he was not automatically barred from appearing before the Supreme Court. 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917). Liberal admission is also commonly done as a matter of comity between states. See Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717(1979); 33 A.L.R. 799 (1977). The practice of comity is not, however, mandated by the Constitution. See id.

Practices among the federal district courts in this country vary from state to state, but this district is not unlike most other districts in that motions for pro hac vice admission are granted almost as a matter of course.

B. The Conduct in Question

The record in this case is replete with instances of grossly inappropriate, uncivilized, and unprofessional behavior by an attorney who seeks admission to practice before this Court. Mr. Barish has in recent years left a trail of mistrials in his wake.

In 1992 Mr. Barish engaged in inappropriate behavior and "questionable ethics" at trial, resulting in the grant of a new trial by the United States District Court for the Eastern District of Pennsylvania. See Patchell v. Nat'l R.R. Passenger Corp., 1992 WL 799399 (E.D.Pa. July 31, 1992). After the court issued its memorandum opinion detailing the bases for its decision, the parties settled the case, and the court vacated its opinion because of the settlement. The Third Circuit reversed the trial court's decision to vacate its opinion, and the opinion was reinstated. See Patchell v. National R.R. Passenger Corp., 107 F.3d 7 (3d Cir.1997).

Mr. Barish argues here that Judge Hedges should not have relied on the district court's opinion, which details the inappropriate behavior of Mr. Barish at trial, since the opinion was reinstated because of a reversal based on a procedural fault of the district court. See Pl. Br. at 6. This Court disagrees. It was proper for Judge Hedges to rely on the opinion as it contained insight into Mr. Barish's prior behavior and character.

In an unpublished opinion, Judge Simandle of this Court granted a motion for a new trial by defendants, after the plaintiff won a jury verdict, on the basis of Mr. Barish's grossly uncivilized behavior at trial. See Bonventre Decl., Ex. C; McEnrue v. N.J. Transit Rail Ops.,...