The title pretty much says it all, but it is rare that you have a state supreme court weighing in on whether revocation of a pro hac is an appropriate sanction for plaintiffs’ lawyer shenanigans, so we call it to your attention. Recently, a North Carolina judge revoked the pro hac vice status of two (non-resident) plaintiffs’ lawyers in a case involving powdered Similac. See Sisk v. Transylvania Comm. Hosp., __ S.E.2d __, 2010 WL 2403438 (N.C. June 17, 2010). The facts alleged in the complaint are tragic – baby takes powdered Similac instead of sterile liquid Similac, baby is a neonate with a compromised immune system, baby develops meningitis. The plaintiffs sued the hospital – and we’ll refrain from making tired Transylvania jokes – and Abbott, the maker of Similac.

But the facts of the case and the legal claims asserted aren’t what caught our attention. Nope, it’s the way the trial court slammed the two non-Tarheel plaintiffs’ lawyers when the court learned that those lawyers had been in contact with Abbott’s consulting expert. It turns out that these plaintiffs (and Abbott) were no strangers to Similac litigation. In fact, these same lawyers had been involved in Similac litigation in Kentucky, in a case called Hill. After the Hill case settled, but before an order of dismissal was entered, the plaintiffs’ lawyers contacted and retained Abbott’s consulting expert with respect to another Similac case, called Froman. At the time of the contact, Abbott was not yet a party in the Froman case, but it was added later, leading to the disqualification of Abbott’s consulting expert in Froman. Abbott was understandably upset, and moved to disqualify plaintiffs’ counsel for their tactics. The Kentucky court refused to disqualify or sanction the lawyers, finding that they did not knowingly violate the Kentucky Rules of Professional Conduct.

The North Carolina trial court, on the other hand, determined that the attorneys, by contacting and conflicting out Abbott’s expert, did engage in sanctionable conduct, and the court yanked the attorneys’ pro hac vices as a result. After the court of appeals overturned the revocation, relying on the Kentucky court’s refusal to sanction the conduct, the North Carolina Supreme Court reinstated the trial court’s sanctions decision. The Supremes noted that trial judges have wide latitude to discipline attorneys – especially those who are practicing pursuant to a pro hac vice. Id. at *4. In this case, the trial court did not abuse its wide discretion, because the facts showed that the plaintiffs’ attorneys contacted Abbott’s consulting expert during the pendency of one case (Hill) in order to work on a second case (Froman), the attorneys wanted to keep the expert “in the black” about possible additional defendants in the Froman case (including Abbott), and the expert was unrepresented at the time of the contact. Id. at *5-7. Furthermore, the attorney for Abbott certified that after the plaintiffs’ attorneys contacted the expert, the expert would no longer return phone calls, letters, or messages, effectively denying Abbott the assistance of its retained expert. Id. at *5.

The Supreme Court also praised the trial court’s conclusions of law as “reasoned” and “carefully worded.” Id. at *6-7. The plaintiffs’ big beef, which was adopted by the court of appeals, was that a Kentucky court had previously declined to find a violation of the Kentucky Rules of Professional Conduct. The plaintiffs argued that under the North Carolina Rules, it is inappropriate to discipline attorneys whenever the conduct was permitted by the rules of the state where the conduct occurred. Id. at *8. The Supreme Court rejected this argument, because the cited rule applied to discipline by the Council of the State Bar – not the independent and inherent power of a trial judge to discipline attorneys appearing before him or her. The trial court reached twin conclusions of law: (1) counsel’s conduct constituted the appearance of impropriety; and (2) counsel’s conduct appeared to be inconsistent with fair dealing as reflected in Professional Rule 4.3. Id. at *7. Those conclusions were amply supported by the record, and well within the authority of the trial judge. The judge’s reference to Rule 4.3 for guidance, as well as its carefully worded conclusion – that the conduct at issue was “inconsistent” with the rule (rather than a “violation” of the rule) – was appropriate and “displayed a nuanced understanding of the discretion accorded” to the court. Id. at *8.

The lessons of this case are pretty simple. Don’t mess with the other side’s experts in order to get them disqualified, like Tony Soprano did when he tried to retain every divorce lawyer in New Jersey so as to deprive Carmela of a good lawyer. Don’t play fast and loose with the rules, especially when you’re appearing pro hac vice. And don’t mess with North Carolina.