Mass., New England Bar Groups Urge Fair Treatment of Out-of-State Counsel

Published: 6:49 pm Thu, December 22, 2011

By admin Massachusetts Lawyers Weekly

To the editor:

Massachusetts recently hosted the annual New England Bar Association conference. Several leaders of the Massachusetts Bar Association attended and participated. It was my honor to serve as one of the commonwealth’s NEBA directors.

The conference was the perfect forum to discuss an issue that has been ignored for too long. Many have observed that out-of-state or pro hac vice-admitted attorneys have been treated differently among the New England states.

Unfortunately, there appears to be a bias by local attorneys or judges who seem to “root for the home team” in their particular state. If these observations are only partially accurate, there is an element of unfairness in the system that should not be allowed to continue.

I have experienced this bias directly. In a state and court that shall remain nameless, I brought a products liability action involving terrible burn injuries. We sued three defendants who we believed contributed to defectively designed machinery and prepared to litigate the case.

Shortly after filing suit, the judge arranged for a telephone conference in order to discuss the scheduling of discovery. He asked defense counsel for one of the defendants to weigh in. “I think we should conduct paper discovery for eight months and then do a year’s worth of depositions,” he said, “then we should proceed to expert disclosures and have our first pre-trial conference.”

The judge then turned to defense counsel representing the second defendant in order to hear what she had to say. Finally, the judge heard from the third defendant’s attorney.

What followed was a rather awkward silence. I chimed in and said, “Hello, your honor. I’m Doug Sheff from Massachusetts, representing the plaintiff, and I would like to give you our thoughts on discovery.”

Suddenly the judge cut me off and said, “You people from Boston talk too much.” He then ended the conference and hung up the phone without allowing us to be heard. Needless to say, things didn’t get much better, even into trial. Fortunately, we prevailed despite the unfair treatment.

By no means do I suggest that this is a frequent occurrence, but even if it happens occasionally, this sort of behavior is unacceptable. I raised the issue of civility and reciprocity among the New England representatives at the conference, and then drafted a resolution for leaders to consider.

NEBA will vote on the resolution at its next meeting. I have spoken to several leaders from the various states and believe that it will pass overwhelmingly. In the meantime, I submitted a similar resolution to the MBA House of Delegates, which passed unanimously. The summary of the resolution is as follows: Because the states comprising New England are small in size and/or population and share a common legal community, and because each state has established significant standards and/or local rules in order to ensure competent practice from those admitted pro hac vice, clients should have the freedom to choose representation, regardless of state of licensure. NEBA supports reciprocal, respectful and equal treatment from the bar and the judiciary of all attorneys practicing within New England states, regardless of state of licensure or primary location of practice.

I think we can do some real good here. The resolution raises awareness and gives out-of-state practitioners something to refer to in an uncomfortable and/or unfair situation. We can attach it to relevant motions. We can send a copy to all judges and bar associations throughout New England. It is certain to have a salutary effect.

Douglas K. SheffBoston

The writer is treasurer of the Massachusetts Bar Association.