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KEVIN RYAN, )
)
Plaintiff, )
)
v. ) Cause No. 1:06-cv-1770-JDT-TAB
) Judge John D. Tinder
) Magistrate Judge Tim A. Baker
)
UNDERWRITERS LABORATORIES, INC. )
)
Defendant. )
Pursuant to the Court's Order to Show Cause, the undersigned hereby responds to
the Court's Order. For the reasons stated herein, this Court should determine that counsel
Harrison's delay in filing his pro hac vice motion, given that two other counsel for
plaintiff were admitted, was not a violation of the rules, although not good practice, and
that counsel Harrison's violation of the electronic filing local rule, L.R. 5.11, was
inadvertent and not in bad faith. Consequently, no sanction is required to deter future
violations. In support of this response, counsel offers the following statement of facts
STATEMENT OF FACTS
Plaintiff Kevin Ryan asked counsel Harrison to represent him in this litigation
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fee basis. Plaintiff Ryan is a private citizen of modest means who brings this action not
only to vindicate his own rights and interests but to vindicate Indiana public policy and
Undersigned counsel, Mick G. Harrison, Esq., has a local office at the new
Counsel Harrison received his Juris Doctor degree from the District of Columbia
School of Law in 1991, graduating summa cum laude. Counsel Harrison was a member
of the law review, lead on the D.C.S.L. team for the Jessup International moot court
competition, and one of two students who received the Dean’s cup twice for
distinguished service to the law school. Since law school, counsel Harrison has been
dedicated to public service and serving the public interest by representing clients, often
who have an inability to pay attorney fees, whose cases raise important public interest
issues.
currently has clients in litigation in Indiana, Kentucky, Utah, Oregon, New Mexico,
Maryland, and Alabama. Organizations that Counsel Harrison has represented include
the Indiana Forest Alliance, Protect Our Woods, Vietnam Veterans of America
Foundation, the Vietnam Veterans of America, Arkansas State Chapter, the National
Sierra Club, the Chemical Weapons Working Group, the Audubon Naturalist Society of
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the Central Atlantic States, the Arkansas Peace Center, and Greenpeace.
organization, and in that capacity represented a number of high level government and
corporate whistleblowers who disclosed waste, fraud and abuse in government and
industry and suffered retaliation as a result. Two of these clients have appeared on the
CBS news program Sixty Minutes. More recently Counsel Harrison has represented
several high level whistleblowers in association with the national not-for- profit Public
Counsel Harrison has been fully admitted to the U.S. Courts of Appeals for the
Third Circuit (admitted 1996), Fourth Circuit (admitted 1994), Sixth Circuit (admitted
1993), Seventh Circuit (admitted 1997), Eighth Circuit (admitted 1993), Tenth Circuit
(admitted 1996), Eleventh Circuit (admitted 2005), and Federal Circuit (admitted 2007),
without any restriction on Counsel’s eligibility to practice, and remains in good standing
with each of these courts. Counsel Harrison also appears before the United States Merit
Systems Protection Board (MSPB) and the United States Department of Labor in
whistleblowers, and citizen groups, Counsel Harrison has had occasion to be admitted
pro hac vice in a number of United States District Courts as noted in counsel's pro hac
vice motion. Counsel remains in good standing in all courts to which he is currently
admitted and was in good standing at all times during his admission to those courts in
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For purposes of this case, Counsel Harrison has associated with local counsel
Rudolph Savich, a member in good standing of the Indiana Bar (Bar No. 1582-53), who
has appeared in this matter, as well as local counsel Kara Reagan, who has also appeared.
Plaintiff Ryan requires lead counsel who is experienced and knowledgeable in the areas
of employment law generally and whistleblower litigation specifically, and who is able
is complex, and this case involves some unusual issues and possibly one or more issues
Counsel Harrison does a substantial amount of pro bono work and in almost every other
populations and to serve the public interest. Had it not been for the public import of Mr.
Ryan's case, and the likelihood that his case would not have been heard at all absent
As noted in counsel's motion for admission pro hac vice, Counsel Harrison over
the past 16 years has maintained at different times offices in Washington, D.C., with the
professional plan and intent has been to maintain a national public interest law practice
based out of either Washington, D.C., Pennsylvania, or Kentucky. The public interest
cases in counsel's practice are often demanding, often against the government and large
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Counsel Harrison had some support staff during his years of being associated with the
Over the past approximately three years Counsel Harrison has been called upon to
be physically present in Indiana more than planned due to serious illnesses that have
afflicted three members of Counsel Harrison's family (two of Counsel's brothers and
Counsel's mother). Counsel would prefer to protect the privacy of his family members
by not going into detail regarding their illnesses other than to say that Counsel's mother
passed away from cancer during this period and absent Counsel Harrison's intervention to
assist the two brothers their physical and economic conditions would have been severely
impaired. Counsel Harrison is originally from Indiana and, as a consequence of the just
been attempting to assist his family members on an on-going basis by spending more
time in Indiana without abandoning his national practice and his original plans for that
practice.
This year, Counsel Harrison has come to terms with the reality that it is not likely
involving extensive travel while continuing to assist Counsel's family, who are all located
in Indiana. Consequently, Counsel Harrison had decided, and had discussed his decision
with local counsel Rudolph Savich, to pursue active long term residence in Indiana and
admission to the Indiana Bar and the Bar of the Southern District of Indiana as part of an
effort to reduce the currently unsustainable time and financial burden on counsel
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Counsel Harrison had hoped that a trial victory in a 12-week trial whistleblower
case that resulted in an award of several hundred thousand dollars in attorney fees to
Counsel Harrison by the trial administrative judge would have helped Counsel deal with
these burdens and make an orderly transition from his national practice to an Indiana
based regional practice. Unfortunately, that case was reversed unexpectedly on appeal.
Counsel Harrison has a reputation for high standards of ethical conduct over his
16 years of practice. Counsel has never been suspended, disbarred or resigned as a result
any jurisdiction. Counsel Harrison is perfectly willing to strictly comply with any
expectations of this Court, and all of the applicable federal and local rules, including the
rules of professional responsibility that govern ethics and conduct for attorneys. Counsel
Harrison would not, and did not, intentionally violate any applicable rule or order of this
Court. Counsel does admit he misread L.R. 5.11 and sincerely apologizes for any
Counsel Harrison further apologizes for his delay in filing his motion for
admission pro hac vice in this matter. Counsel Harrison had intended to file for pro hac
vice admission shortly after the removal of the case to federal court by Defendant.
Counsel's other case obligations, including a federal Court of Appeals brief and a petition
to the Supreme Court of the United States, among numerous other public interest case
demands, along with the ongoing need to assist Counsel's family in a time of medical and
financial hardship, caused Counsel to delay this pro hac vice filing in reliance on the
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capable assistance of his local co-counsel Mr. Savich and Ms. Reagan. Counsel Harrison
understands that it is necessary to file promptly for pro hac vice admission when an out-
of-jurisdiction counsel is the sole representative for a party. However, counsel Harrison
was operating on the understanding that, while it is good practice to promptly file for pro
hac vice admission when co-counsel have already been admitted, there was no time
constraint on counsel's filing of a motion for pro hac vice admission, similar to filing an
appearance as additional counsel, as long as the other admitted co-counsel directed and
the pro hac vice motion being filed and granted. Counsel Harrison has been unable to
locate any legal authority in the rules or case law that would set a deadline for filing such
a motion for pro hac vice admission where co-counsel have been admitted.
electronically on two occasions, February 5, 2007 and May 14, 2007, under his own
name. Counsel Harrison thought at the time that it was proper to do so in a paralegal
capacity in light of his co-counsel being admitted and having approved the submission,
and in light of Counsel Harrison having been registered to make electronic filings in the
Southern District. Counsel was at the time, admittedly in error, thinking that the "/s" by
counsel's name in the signature block of the filing was the key for the court determining
the identity of the signing counsel. Upon a review of the applicable local rule regarding
electronic filing, L.R. 5.11, it is clear that the Court treats the user name and password
used to make the filing also as part of the "signature." Had counsel Harrison realized this
at the time, he would not have made those filings but counsel Savich would have done so
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attorney on behalf of a party, even with co-counsel, then the pro hac vice motion must be
filed promptly. Had Counsel correctly read L.R. 5.11 and recognized that the electronic
username and password is considered part of the electronic signature of the signing
attorney, counsel Harrison, had he not avoided doing any such filing (which would have
been the first option), would have promptly filed his motion for pro hac vice admission
counsel.
paralegal capacity with his approval using counsel Savich's username and password and
counsel Harrison could have (and should have) done so on the two occasions referenced
above. Had counsel Harrison properly read L.R. 5.11, counsel Harrison would simply
have availed himself of the alternative procedure readily available to him of having co-
counsel file the documents in question or filing as an authorized paralegal under their
username and password. No advantage was gained or intended for counsel or Plaintiff in
using the wrong procedure in this case. The error was inadvertent.
filings, most filed under Mr. Savich's name by him, but some filed by Counsel Harrison
on Mr. Savich's direction. In every case it has been an explicit understanding between
counsels Harrison and Savich that because counsel Harrison has yet to be admitted in this
matter, that Counsel Savich's opinions and decisions on all matters would control and his
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experience in litigating cases before the MSPB. The MSPB electronic filing program
includes prompts that ask whether you are the party or a representative for a party or
someone else (such as a secretary or paralegal) authorized to file for someone who is a
party or representative. Undoubtedly, the stress of dealing with counsel Harrison's public
interest workload and family illnesses contributed to counsel Harrison not catching this
error. The facts that counsel Harrison's filings on the two occasions referenced above
were not rejected by the electronic filing system or subsequently by the Clerk, and that
the Judge's staff's extended the courtesy of allowing counsel Harrison to appear in the
counsel Harrison's error in reading L.R. 5.11, did result in counsel mistakenly assuming
misrepresent that he was admitted pro hac vice or otherwise in this matter but intended
only to support his co-counsel, who were admitted, in a paralegal capacity under the
supervision of Mr. Savich and with any additional direction co-counsel Reagan offered.
Counsel Harrison brought the matter up himself initially, before any inquiry by the Clerk
or the Court's staff, when the initial prehearing conference was set with Magistrate Judge
Baker. Both admitted co-counsel Savich and Reagan had conflicts with the set date and
time for that conference and Counsel Harrison called Judge Baker's office to inquire
about the potential for either or both Plaintiff's admitted co-counsel to appear by phone,
given that Counsel Harrison had yet to be admitted pro hac vice, which counsel Harrison
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explicitly pointed out. Counsel Harrison was advised by Court staff that it was
notwithstanding his pro hac vice motion was not yet filed or granted, and that it was not
necessary for co-counsel to appear by phone or in person (which both co-counsel were
participate in the conference without objection, which served to avoid and reduce
conflicts in co-counsel's schedule, an opportunity made possible by the Court which was
much appreciated.
When the Court's staff made the recent inquiry with Counsel Harrison, and asked
counsel Harrison whether he was admitted in this matter, counsel Harrison stated
forthrightly that he was not yet admitted, but anticipated filing a motion for admission
pro hac vice. Counsel Harrison does not recall stating to Court staff that he had forgotten
to file his motion for admission pro hac vice, but may have so stated in reference to the
most recent time period after the initial prehearing conference when counsel became
burdened with numerous other case and family demands simultaneously. Counsel had
not forgotten to file his pro hac vice motion prior to the initial prehearing conference but
had simply not found time to prepare it and believed in good faith that with two other co-
counsel admitted and acting in the case that this delay was not a violation of any rule.
Counsel Harrison is unaware of any prejudice to Defendant that has resulted from
Counsel Harrison's delay in filing his motion for pro hac vice or from counsel Harrison's
two electronic filings in this matter. Counsel Harrison has placed payment of the required
fee for pro hac vice admission in the mail to the Clerk on the day that motion and this
response are being filed. Counsel Savich and counsel Harrison have filed a motion for
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pro hac vice admission of counsel Harrison in this matter, which was filed just prior to
filing this response to the Court's Order. Counsel Harrison hopes that this response and
that motion, will assist in addressing the Court's concerns expressed in the Order to Show
Cause.
The Court's Order to Show Cause makes reference to counsel Harrison signing, as
co-counsel, a recent complaint in Sierra Club v. Gates, Case No. 2:07cv0101, which is
also pending in this district. Mr. Harrison did sign this complaint but would not have
done so in the absence of co-counsel admitted to practice before this district who also
signed the complaint. Attorney Rudolph Savich of Bloomington, Indiana and Attorney
Richard Condit of Washington, D.C. are co-counsel in that case and both are admitted in
this dictrict. Counsel Harrison is filing his motion to appear pro hac vice in that case the
week of filing the instant response in the above captioned matter. The delay in filing
counsel Harrison's motion for pro hac vice admission in the Sierra Club matter, in which
case counsel also intended to file his motion as soon as possible, was the result of the
same circumstances described above, including counsel's demanding public interest case
load, his family illnesses, and the difficulty of attempting to transition from a national
These circumstances logically would have affected either both cases or neither.
The Court's Order to Show Cause also makes note that counsel Harrison had not
filed a motion to appear pro hac vice in the underlying State action that was removed to
this court. Although the circumstances described above caused counsel's intial delay in
filing for admission in that case, upon review of the applicable Indiana rules, it appeared
to counsel Harrison that he would no longer be eligible for pro hac vice admission in
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counsel Harrison was and is in the process of applying for admission to the Indiana Bar
on foreign license. Although the need for that admission in the underlying case was
mooted by the removal to this Court, counsel Harrison still intends to proceed with that
admission because of his change in professional plans to now be based in Indiana. This
change affects one other Indiana state court case in which counsel Harrison was admitted
pro hac vice five years ago in which counsel represents the Indiana Forest Alliance in a
ARGUMENT
It appears from past practice in the federal courts in Indiana and in the Seventh
Circuit, that a disciplinary proceeding is not initiated when an attorney is first discovered
to have failed to promptly file a motion for pro hac vice admission. This appears to be so
even when that attorney is sole counsel for a party, unlike here. It appears that the
attorney is provided a direction from the court to promptly file their motion for
admission. See, e.g., Allen v. International Truck and Engine, No. 1:02-cv-0902-RLY-
TAB, slip op. at note 12 (S.D.Ind. 09/06/2006). In Allen, a case where sanctions were
the court, the court noted in footnote 12 of the opinion that earlier in the case other
counsel for the same or an aligned party had apparently participated in depositions
without being admitted and had misrepresented in open court that their motions for
admittance pro hac vice had been filed when the motions had not been filed.
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Littler Mendelson attorneys were not the only counsel guilty of incorrect
statements. Incredibly, deposition counsel for Boardman and Parsons
incorrectly portrayed the status of their pro hac vice motions. Both separately represented
in open court that pro hac vice motions had been filed on their behalf when in fact none
had been filed. These motions were filed only after the Court directly confronted counsel
on this matter.
Id. In Allen, apparently the Court directly confronted the attorneys in question, after the
attorneys had misrepresented they had filed their motions to be admitted, and directed the
filing of those motions, rather than initiating a disciplinary proceeding. One presumes
such a proceeding would have been initiated if counsel had disregarded the court's
04/11/2007), a case in which a party appearing to litigate the case pro se actually had
assistance of counsel. The court gave the unannounced counsel direction to file their
motion to be admitted and did not immediately initiated a disciplinary proceeding. And
case in which counsel that had removed a state case to federal court, as here, without
being first admitted pro hac vice wree not disciplined and the removal filing was
A Seventh Circuit case also reflects the practice that a sanction may well be
called for when counsel disregards an order that counsel who have not filed for admission
promptly do so, but no disciplinary proceeding is initiated prior to the court confronting
counsel with the failure and counsel disregarding the court's direction.
The original complaint failed to seek any relief on behalf of Mr. Chada.
Consequently, defendant Offinger moved to dismiss that plaintiff from the
action and sought Rule 11 sanctions against plaintiffs' counsel. The
motion for sanctions was treated as moot after plaintiffs filed an amended
complaint. At a status conference held on September 12, 1988, the district
court ordered counsel for the plaintiffs to supply all parties with a copy of
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the amended complaint within a week. The court also informed one of the
attorneys representing the plaintiffs that he must seek admission to
practice in the district. Plaintiffs' other counsel was made aware of this
requirement through a letter from the district court.
The amended complaint was not provided in a timely fashion, nor did
either of plaintiffs' counsel seek admission to practice before the local
court. In addition, a number of delays marred the discovery process. For
example, one of plaintiffs' counsel was forty-five minutes late for a
deposition, and counsel canceled the deposition of Mr. Cheung, a resident
of California, three times. Plaintiffs were tardy in filing responses to
interrogatories, thus violating local court rules. Citing "this record of
dilatory actions, or lack of action," the court on February 6, 1989 granted
a motion for discovery sanctions and a motion for expenses incurred in
bringing a motion to compel discovery.*fn2 R.64 at 18. The court ordered
plaintiffs' counsel to pay $750 within thirty days.*fn3 At the same time,
the court scheduled the next status conference for March 6, 1989.
The district court also based the dismissal and the denial of the motion to
vacate in part on the failure of plaintiffs' counsel to apply for admission to
practice before the district court. In this appeal, appellants' counsel
explained that they believed the court's original order to apply for
admission simply meant that they must be admitted by the time of trial.
This failure by counsel -- even when combined with failure to attend a
single status conference -- may not provide an adequate basis for the
judgment of dismissal. See Gonzalez v. Firestone Tire & Rubber Co., 610
F.2d 241, 247-48 (5th Cir. 1980). On remand, the district court must
determine carefully whether the remainder of this case's litigation history
demonstrated a sufficiently clear record of delay, contumacious conduct,
or failed sanctions to justify the harsh sanction of dismissal. See Del
Carmen, 908 F.2d at 163.
Chada v. Olympia, 929 F.2d 703 (7th Cir. 1991). These cases support counsel Harrison's
position that under the circumstances in the instant case, a disciplinary proceeding is
premature. This is particularly true where as here, counsel has a reputation for ethical
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practice and there is no reason to believe that direction and a caution from the court will
L.R. 5.11 being inadvertent and occuring under extenuating circumstances, counsel
Harrison's delay in filing his motion for admission pro hac vice while not good practice
not rising to a violation of a rule, for all the reasons stated in the foregoing statement of
facts and argument, and in consideration of the interests of justice and the public interest,
counsel or Plaintiff is warranted in this matter beyond direction that counsel Harrison
maintain strict compliance with the rules of this Court during the remainder of this case.
Respectfully submitted,
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing response by counsel Harrison
to Order to Show Cause with accompanying declaration was electronically filed and
thereby automatically served on the parties indicated below. Notice of this filing will be
sent to the following parties by operation of the Court’s electronic filing system. Parties
may access this filing through the Court’s system.
Thomas E. Deer
Locke Reynolds LLP
201 North Illinois Street, Suite 1000
P.O. Box 44961
Indianapolis, IN 46244-0961
Tel: (317) 237-3800
Fax: (317) 237-3900
tdeer@locke.com
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