Could an out-of-state lawyer represent a client in a Maryland health claims arbitration or other administrative hearing without being admitted to the Maryland Bar?

Plain-English summary

The Director of Maryland's Health Claims Arbitration Office asked the Attorney General whether a lawyer admitted to practice in another state, but not admitted in Maryland, could be specially admitted pro hac vice to represent a party in the arbitration of a health care malpractice claim, and who would have the authority to grant that admission. The opinion concluded that no such admission was available. It reasoned that participating in a health claims arbitration was the practice of law, that the Court of Appeals of Maryland (not administrative agencies) generally regulates who may practice law in the state, and that the only statutory and court-rule pathways for pro hac vice admission, Article 10, §7(b) of the Maryland Code and Rule 20 of the Rules Governing Admission to the Bar, were both written to cover only a "case pending" before a "court," not a contested case or similar proceeding before an administrative agency like the Health Claims Arbitration Office. Because neither the General Assembly nor the Court of Appeals had extended pro hac vice admission to administrative proceedings, the opinion concluded any agency rule purporting to allow it would be invalid, even though the opinion itself flagged this as an anomalous gap that left out-of-state lawyers barred from the underlying arbitration while still eligible for pro hac vice admission in a court's later review of that same arbitration award, and urged the General Assembly and the Court of Appeals to consider a fix.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion's own closing editor's note records that the gap it identified was addressed relatively quickly: the Court of Appeals amended Rule 20 of the Rules Governing Admission to the Bar, effective January 1, 1983, to allow special admission of out-of-state lawyers in cases pending "in any agency or commission of this State or any political subdivision thereof," and the General Assembly amended Article 10, §7(b) to similar effect, effective July 1, 1983. Maryland's admission rules and the Health Claims Arbitration process have likely changed further in the decades since. Verify the current Rules Governing Admission to the Bar and the current Article 10 (since recodified) before relying on any specific description of how an out-of-state lawyer may participate in a Maryland administrative proceeding.

Common questions

Could a lawyer licensed only in another state represent someone in a Maryland health claims arbitration in 1982?
No, according to this opinion. It concluded that an out-of-state lawyer could not be admitted pro hac vice or by any other means to participate as counsel in a health care malpractice arbitration or any similar contested case before a Maryland administrative agency, because the existing pro hac vice statute and court rule applied only to cases pending in a court.

Who decided whether a lawyer could practice law in Maryland at the time of this opinion?
The opinion explained that, apart from a few narrow statutes, the Court of Appeals of Maryland regulated the admission of lawyers to practice law under its constitutional grant of judicial authority, not individual administrative agencies like the Health Claims Arbitration Office.

Did this opinion find any problem with the rule it was describing?
Yes. The opinion called the result "somewhat anomalous," since an out-of-state lawyer could be admitted pro hac vice by a court reviewing a health claims arbitration award, yet that same lawyer, who might have particular expertise in the case, could not participate in the underlying arbitration itself, and it urged the General Assembly and the Court of Appeals to consider a remedy.

Was this gap ever fixed?
Yes, according to the opinion's own closing editor's note. Effective January 1, 1983, the Court of Appeals amended Rule 20 to allow special admission of out-of-state lawyers in cases pending before a State agency or commission, and the General Assembly made a similar amendment to Article 10, §7(b), effective July 1, 1983.

Background and statutory framework

The opinion started from the premise, which it found well supported by Public Service Commission v. Hahn Transportation, Inc. and Lukas v. Bar Ass'n of Montgomery Co., that representing a party in a contested administrative proceeding, including preparing pleadings and examining witnesses, constitutes the practice of law. It then relied on Attorney General v. Waldron for the principle that regulating who may practice law is a judicial function under Maryland's constitutional separation of powers, resting primarily with the Court of Appeals rather than individual agencies, and pointed to Article 41, §245(a) of the Administrative Procedure Act, which expressly barred agencies from construing their own rules to grant the right to practice law to anyone not otherwise authorized. Surveying the two available statutory and rule-based pathways for out-of-state lawyers, general admission on examination under Article 10, §7(a) and pro hac vice admission under Article 10, §7(b) and Rule 20, the opinion found both were drafted in terms of a "case . . . pending" before a "court," language that did not reach a "contested case" before an administrative agency like the Health Claims Arbitration Office.

The opinion drew support from out-of-state authority for the general proposition that bar admission in one jurisdiction carries no automatic right to practice in another, including the U.S. Supreme Court's Leis v. Flynt and the Second Circuit's In re Rappaport, and noted that other jurisdictions, citing Oklahoma's Smith v. Brock, had adopted express statutes or rules extending pro hac vice admission to administrative proceedings, something Maryland had not yet done. Because neither the General Assembly nor the Court of Appeals had extended the pro hac vice mechanism that far, the opinion concluded that any administrative agency rule purporting to permit such admission, on its own authority, would be invalid, while explicitly flagging the resulting gap as a policy problem worth legislative or judicial attention rather than something the opinion could resolve by interpretation alone.

Citations

Statutes:

• Title 3, Subtitle 2A of the Courts and Judicial Proceedings Article ("Health Care Malpractice Claims")
• Article 41, §244(c) of the Maryland Code (Administrative Procedure Act definition of "contested case")
• §3-2A-03(b)(3) of the Courts Article (Health Claims Arbitration Office rulemaking authority)
• Article 41, §245(a) of the Maryland Code (agencies may not construe rules to grant the right to practice law)
• Article 10 of the Maryland Code (attorney admission statutes)
• Article 10, §32(b) of the Maryland Code (out-of-state corporate house counsel)
• Article 10, §7(a) of the Maryland Code (general admission on special examination)
• Article 10, §7(b) of the Maryland Code (pro hac vice admission before Maryland courts)
• Rule 14 of the Rules Governing Admission to the Bar (general admission procedure for out-of-state lawyers)
• Rule 19 of the Rules Governing Admission to the Bar (limited authorization for certain legal services program lawyers)
• Rule 20 of the Rules Governing Admission to the Bar (special pro hac vice admission before Maryland courts)

Cases:

• Public Service Commission v. Hahn Transportation, Inc., 253 Md. 571, 580-81 (1969)
• Lukas v. Bar Ass'n of Montgomery Co., 35 Md. App. 442, 448 (1977)
• Attorney General v. Waldron, 289 Md. 683, 692 (1981)
• Leis v. Flynt, 439 U.S. 439, 443 (1979)
• In re Rappaport, 558 F.2d 87, 89 (2nd Cir. 1977)
• Smith v. Brock, 532 P.2d 843, 849-50 (Okl. 1975)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEYS

Unauthorized Practice of Law—Health Claims Arbitration—Administrative Proceedings—Admissions Pro Hac Vice—Out-of-State Lawyers may not be admitted Pro Hac Vice as Counsel in Administrative Proceedings

June 21, 1982

Mr. Walter R. Fabler
Director
Health Claims Arbitration Office

You have requested our opinion on whether a lawyer admitted to the Bar of another state, but not admitted to practice in Maryland, may be admitted pro hac vice (i.e., for a particular occasion only) to participate in the arbitration of a health care malpractice claim and, if so, who has the authority to grant that admission.

For the reasons given below, it is our opinion that an out-of-state lawyer may not be specially admitted, pro hac vice or otherwise, to participate as counsel in the arbitration of a health care malpractice claim or, for that matter, any other "contested case" or similar quasi-judicial proceeding before an administrative agency.1

I
Appearance in Arbitration as "Practice of Law"

Your question assumes, quite correctly in our view, that representation of a client in the arbitration of health claims under Title 3, Subtitle 2A ("Health Care Malpractice Claims") of the Courts and Judicial Proceedings Article involves the practice of law. See, e.g., Public Service Commission v. Hahn Transportation, Inc., 253 Md. 571, 580-81 (1969) ("We have no doubt that when an individual on behalf of his employer or

1 The Administrative Procedure Act, in Article 41, §244(c), defines "contested case" as being "a proceeding before an agency in which the legal rights, duties, statutory entitlements, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing".

another prepares and files pleadings in a contested case before the [Public Service] Commission and appears at and engages in its trial by the examination or cross-examination of witnesses, in light of the law he has determined to be applicable or controlling and by arguing the case in writing or orally he engages in the practice of law."); Lukas v. Bar Ass'n of Montgomery Co., 35 Md. App. 442, 448, cert. denied, 280 Md. 733 (1977) ("[T]he general rule is: '[Even w]here trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law . . . .' "). See also 65 Opinions of the Attorney General 28 (1980) (representing claimants or employers at hearings before Workmen's Compensation Commission constitutes practice of law).

The Court of Appeals has concluded that "[u]nder our constitutional system of separation of powers, the determination of what constitutes the practice of law and the regulation of the practice and of its practitioners is, and essentially and appropriately should be, a function of the judicial branch of government". Public Service Comm'n v. Hahn Transportation, 253 Md. at 583. See also Attorney General v. Waldron, 289 Md. 683, 692 (1981) ("[T]he regulation of the practice of law . . . [is] essentially judicial in nature and, accordingly, [is] encompassed in the constitutional grant of judicial authority to the courts of this State."). Except as provided in a few statutes relating to various aspects of the unauthorized practice of law, the Court of Appeals regulates the admission of lawyers to practice law in Maryland. See generally Article 10 of the Maryland Code; Maryland Rules Governing Admission to the Bar; Attorney General v. Waldron, 289 Md. at 692-703.

Although the Health Claims Arbitration Office has general authority to adopt rules and regulations governing health claims arbitration procedures [§3-2A-03(b)(3) of the Courts Article], neither the Court of Appeals nor the General Assembly has acted to confer on the Office or any arbitration panel the authority to specially admit out-of-state lawyers for the handling of health claims. Indeed, in this context, the Maryland Administrative Procedure Act makes it clear that administrative agencies have no independent authority to regulate practitioners before them: Article 41, §245(a) expressly provides that administrative agencies may not construe their

rules to "grant the right to practice law to anyone not authorized to do so".2

II
Practice by Out-of-State Lawyers

Admission to the Bar of another state does not automatically carry with it the constitutional or other right to practice law in this State, even on a pro hac vice basis. See, e.g., Leis v. Flynt, 439 U.S. 439, 443 (1979); In re Rappaport, 558 F.2d 87, 89 (2nd Cir. 1977); Smith v. Brock, 532 P.2d 843, 849-50 (Okl. 1975). Rather, as in the case of the practice of law by non-lawyers, the practice of law by out-of-state lawyers is a matter for regulation by the forum jurisdiction. In this regard, the authority of out-of-state lawyers to practice law in Maryland has been specifically addressed by both the General Assembly and the Court of Appeals.

In Article 10 of the Maryland Code, the General Assembly has addressed this matter to a somewhat limited extent. For example, §32(b) authorizes an out-of-state lawyer to act as "corporate house counsel" in this State, provided that the lawyer's activities in this capacity "do not include appearances in the courts, State agencies, or commissions of this State".3 Section 7(a) speaks to the general admission on special examination of out-of-state practitioners with at least 5 years' recent experience in another jurisdiction. Finally, §7(b) provides for the special pro hac vice admission of out-of-state lawyers to participate in cases pending before the courts of this State.

The Court of Appeals' Rules Governing Admission to the Bar supplement and expand on these statutory provisions. Rule 14 generally provides for the procedures by which an out-of-state lawyer may apply for general admission to the Maryland Bar. Rule 19 contains a limited authorization that permits

2 A like rule evidently applies even to those agencies that have been expressly excluded from the APA. See Public Service Comm'n v. Hahn Transportation, 253 Md. at 584.

3 The proviso's specific reference to "State agencies ... or commissions" indicates a legislative understanding that participation in administrative proceedings may well involve the practice of law and, further, that such practice is to be limited to those who have been admitted to the Bar of this, and not merely any other, State.

certain out-of-state lawyers, those employed by or associated with an "organized legal services program" that is "sponsored, approved or recognized by the Legal Aid Bureau, Inc.", to practice in Maryland under specified conditions. Finally, Rule 20 provides for the special pro hac vice admission of out-of-state lawyers to participate in cases pending before the courts of this State.

As to admissions pro hac vice, Article 10, §7(b) specifically provides as follows:

"A member of the bar of any other state, district or territory of the United States, who may be employed as counsel in any case pending before any of the courts of this State, may be admitted for all the purposes of the case in which he is so employed by the court before which the case is pending, without examination. This subsection does not deprive the courts of this State of the power of disbarring or otherwise punishing members of the bar." (Emphasis added.)

Not dissimilarly, Rule 20 specifically provides, in relevant part, as follows:

"An attorney of record in any case pending in any court of this State may file a written motion to admit to practice an attorney who is a member of the Bar in good standing of another State, . . . for the limited purpose of appearing and participating in the case as co-counsel with the movant. . . . The court may by order admit specially or deny the special admission of an attorney. ..." (Emphasis added.)

Section 7(b) thus authorizes a "court" to specially admit an out-of-state lawyer for purposes of a "case . . . pending" before that court. Rule 20, in turn, is similarly limited to authorizing a "court" to specially admit an out-of-state lawyer "for the limited purpose" of participating in a "case pending in [that] court". Neither the statute nor the rule authorizes any out-of-state lawyer to appear and participate in a proceeding before any administrative agency, whether by order of that agency or even, for that matter, by order of a court.

We can find no other authority or acceptable procedure by which an out-of-state lawyer may be admitted in this State to participate in a health care malpractice claim or similar quasi-judicial proceeding. Hence, we must conclude that any rule or procedure adopted by an administrative agency to permit such a practice is invalid.4

III
Conclusion

We realize that there may well be sound policy reasons for establishing some procedure by which administrative agencies, or, possibly, a designated court on special motion, could specially admit out-of-state lawyers to participate pro hac vice in specific contested cases or similar matters pending before those agencies.5 In the context of health care malpractice claims especially, a somewhat anomalous situation now exists: although an out-of-state lawyer may be admitted by a court to participate in that court's review of a health claims arbitration award, that same lawyer, who may well have a special expertise in the particular matter for which he or she has been engaged, will have been precluded from participating in the underlying arbitration proceeding that was itself an exclusive statutory prerequisite to the subsequent litigation.

There are equally compelling, albeit somewhat different, reasons for considering possible reform in this area of the law with regard to most of the various other types of administrative proceedings held in this State. Such proceedings are generally designed to promote the resolution of controversies in an informal, inexpensive, and expeditious manner. Moreover,

4 We recognize that, in Public Service Comm'n v. Hahn Transportation, the Public Service Commission rule reviewed by the Court of Appeals contained a provision for special admission of out-of-state lawyers on motion to the Commission. Nevertheless, the validity of that specific provision was not an issue before, and was not at all addressed by, the Court. Rather, in Hahn, the Court simply approved the rule's general requirement that all practitioners before the Commission be members of the Maryland Bar.

5 The pro hac vice admission of nonresident lawyers before administrative bodies is not unprecedented. Oklahoma, for example, has both a statute and a court rule providing for the same. See Smith v. Brock, 532 P.2d 843, 847-48 (Okl. 1975).

as we previously noted in the context of hearings before the Workmen's Compensation Commission, it is likely that, in many instances, parties might well be able to pursue their interests in such proceedings "quite competently, and perhaps more economically, with nonlegal assistance". 65 Opinions of the Attorney General 28, 33 (1980) (emphasis added). Even more so, then, it seems anomalous to us that a party to such a proceeding should be precluded from having the legal assistance of an out-of-state lawyer simply because the relevant law, albeit, we suspect, by inadvertence, has failed to provide a formal mechanism for such representation.

Nevertheless, present Maryland law simply does not allow us to reach any other conclusion but that which we have expressed above: an out-of-state lawyer who is not a member of the Maryland Bar may not be admitted pro hac vice to participate as counsel in a health care malpractice claim proceeding or to participate as counsel in any similar quasi-judicial proceeding before an administrative agency. We do, however, urge the General Assembly and the Court of Appeals to review this matter and seriously consider an appropriate remedy.

Stephen H. Sachs, Attorney General
Susan K. Gauvey, Assistant Attorney General
Avery Aisenstark
Principal Counsel, Opinions and Advice

Editor's Note: Since the issuance of this Opinion, the Court of Appeals amended Rule 20 of the Rules Governing Admission to the Bar, effective January 1, 1983, to provide for special admission of out-of-state lawyers in cases pending "in any agency or commission of this State or any political subdivision thereof". Also, the General Assembly amended Article 10, §7(b) of the Maryland Code, effective July 1, 1983, to similar effect.