Supreme Court of Texas
══════════
No. 22-0719
══════════
In re AutoZoners, LLC,
Relator
═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════
PER CURIAM
AutoZoners, LLC seeks mandamus review of the denial of its
motions to allow two attorneys licensed in other states to appear on its
behalf pro hac vice in the trial court. Because denial of the motions was
an abuse of discretion that deprived a party of its chosen counsel, we
provisionally grant mandamus relief.
I
Plaintiff Roman Velasquez sued AutoZoners, his employer, for
age discrimination. AutoZoners filed an answer, which was signed by
Bruce A. Koehler, a licensed Texas attorney. The signature block on the
answer appeared as follows:
/s/ Bruce A. Koehler
BRUCE A. KOEHLER
Mounce, Green, Myers, Safi, Paxton & Galatzan, P.C.
P.O. Box 1977
El Paso, Texas 79999-1977
Phone: (915) 532-2000
Fax: (915) 541-1597
Email: koehler@mgmsg.com
And
Laurie M. Riley, Esq.
Florida Bar No.: 657751
(Application for Pro Hac Vice Admission will be forthcoming)
Jones Walker LLP
201 South Biscayne Boulevard, Suite 2600
Miami, FL 33131
Telephone: (305) 679-5728
Facsimile: (305) 679-5816
Designation of E-mail Addresses:
E-mail: lriley@joneswalker.com
And
Tracy E. Kern, Esq.
Louisiana Bar No.: 20246
(Application for Pro Hac Vice Admission will be forthcoming)
Admitted Pro Hac Vice
Jones Walker LLP
201 St. Charles Avenue, 47th Floor
New Orleans, Louisiana 70170-5100
Phone: 504-582-8134
Facsimile: 504-589-8134
Email: tkern@joneswalker.com
Attorneys for Defendant, AutoZoners, LLC
Four days after filing the answer, AutoZoners filed motions to
admit Kern and Riley pro hac vice. 1 Counsel for Velasquez opposed the
motions. He alleged that the answer must have been prepared by the
1 Pro hac vice is a Latin phrase meaning, “For this occasion or particular
purpose.” Pro hac vice, BLACK’S LAW DICTIONARY (11th ed. 2019). “The phrase
usually refers to a lawyer who has not been admitted to practice in a particular
jurisdiction but who is admitted there temporarily for the purpose of
conducting a particular case.” Id.
2
out-of-state counsel because it looked different from previous filings by
Mr. Koehler. At a short hearing on the pro hac vice motions, Riley and
Kern testified that they reviewed and provided input on the answer but
denied they prepared or filed it.
The court denied the motions with the following statement: “So
what I find offensive is that they’re signing documents before being
admitted. Even if it’s conditional, you don’t do that. So on that point
alone, I’m denying the motions.” The court denied a motion for
reconsideration after a second hearing. AutoZoners sought mandamus
review in the court of appeals, which denied relief. 649 S.W.3d 774, 776
(Tex. App.—El Paso 2022).
II
The Rules Governing Admission to the Bar of Texas, adopted by
this Court, provide that “[a] reputable attorney, licensed in another
State . . . may seek permission to participate in the proceedings of any
particular cause in a Texas court . . . .” TEX. RULES GOVERN. BAR ADM’N
R. 19(a). Rule 19(a) requires the out-of-state attorney to file a sworn
motion to appear pro hac vice that provides certain information,
including a statement that the attorney is familiar with, and will abide
by, Texas’s rules governing the conduct of attorneys.
Generally, the decision to permit an attorney to appear pro hac
vice is left to the trial court’s discretion. State Bar of Tex. v. Belli,
382 S.W.2d 475, 476 (Tex. 1964). The trial court may, under Rule 19(d),
conduct a hearing and examine the attorney:
If the court determines that the non-resident attorney is
not a reputable attorney who will observe the ethical
standards required of Texas attorneys, that the
3
non-resident attorney has been appearing in courts in
Texas on a frequent basis, that the non-resident attorney
has been engaging in the unauthorized practice of law in
the State of Texas, or that other good cause exists, the court
or hearing officer may deny the motion.
In this case, the trial court’s sole reason for denying the motions
to appear pro hac vice was that Riley and Kern were “signing documents
before being admitted.” We understand this statement as a conclusion
that Riley and Kern “ha[d] been engaging in the unauthorized practice
of law in the State of Texas,” which is an express ground for denial of a
pro hac vice motion under Rule 19(d). The trial court clarified that it
based its ruling “on that point alone.”
The Legislature has defined the “practice of law” to include
(1) “the preparation of a pleading or other document incident to an
action or special proceeding,” (2) “management of the action or
proceeding on behalf of a client before a judge in court,” and (3) “service
rendered out of court, including the giving of advice or the rendering of
any service requiring the use of legal skill or knowledge, such as
preparing a will, contract, or other instrument, the legal effect of which
under the facts and conclusions involved must be carefully determined.”
TEX. GOV’T CODE § 81.101(a).
Mandamus relief is available if the relator establishes a clear
abuse of discretion for which there is no adequate appellate remedy. In
re AutoNation, Inc., 228 S.W.3d 663, 667 (Tex. 2007). A court abuses its
discretion if no evidence supports the finding on which its ruling rests
and if the court could reasonably have reached only a contrary
conclusion. See GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725,
4
729 (Tex. 1993); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1993). This
exacting standard is satisfied here.
III
The trial court denied the pro hac vice motions solely on the basis
that Riley and Kern were “signing” documents before they were
admitted. Riley and Kern did not sign the document in question,
however. Only Koehler’s electronic signature appears on the
defendant’s answer. Riley and Kern merely allowed their names and
contact information to be listed as additional counsel below Koehler’s
signature. The answer was signed by Bruce A. Koehler, a licensed Texas
attorney who by virtue of his signature at the top of the signature block
assumed full responsibility for the filing. See TEX. R. CIV. P. 8 (first
attorney listed is the “attorney in charge”); TEX. R. CIV. P. 13 (attorney’s
signature on filing certifies the filing is made in good faith).
The presence of the names of additional, out-of-state counsel
below the signature of the licensed Texas attorney who signs and files a
document is no evidence that the out-of-state counsel engaged in the
unauthorized practice of law and provides no basis to deny pro hac vice
motions by the out-of-state attorneys. Riley and Kern did not engage in
the unauthorized practice of law merely by listing their names below
Mr. Koehler’s on the signature block before their pro hac vice motions
were granted.
Signature blocks used throughout courts in Texas frequently
include the names of out-of-state attorneys whose motions for admission
pro hac vice are pending or forthcoming. These out-of-state attorneys’
names and contact information are often listed below the name and
5
signature of the Texas attorney who makes the filing. This common
practice has the beneficial effect of informing the court and other parties
of the out-of-state lawyers’ participation, and so long as a licensed Texas
attorney takes full responsibility for the filing by signing it, the practice
raises no ethical concerns for either the out-of-state attorneys or the
Texas attorney. The appearance of Riley and Kern’s names in the
signature block below Koehler’s was unquestionably not the
unauthorized practice of law in this case, and there is likewise no
unauthorized practice of law in other cases when out-of-state attorneys
whose pro hac vice motions have not yet been granted are listed on a
signature block beneath the name of the Texas attorney who signs the
filing.
The signature block truthfully stated that motions for admission
pro hac vice would be forthcoming, and those motions were filed a few
days later. 2 At all times, irrespective of the names listed below him on
the signature block, Mr. Koehler was the licensed Texas attorney
responsible for the filing. Listing out-of-state attorneys whose pro hac
vice motions have not yet been granted on a signature block below the
name and signature of a Texas attorney is not a problematic practice
and provides no grounds for denying a pending or subsequent pro hac
vice motion.
Kern’s signature block also states, inconsistently, that she is
2
“Admitted Pro Hac Vice,” but the record is clear that this was a typographical
error that misled no one.
6
IV
The court of appeals pointed to alternative grounds for denial of
the pro hac vice motions on which the trial court could have relied.
649 S.W.3d at 780-81. AutoZoners contends that the court of appeals
should not have analyzed alternative grounds for denial because the
trial court stated the sole basis for its ruling, which was clearly
erroneous. We need not decide whether the court of appeals was correct
to consider whether alternative grounds supported denial of the
motions, however, because each alternative ground fails as a matter of
law.
The court of appeals reasoned that the trial court could have
found that Riley and Kern engaged in the unauthorized practice of law
by preparing AutoZoners’ answer. Id. The “preparation of a pleading”
falls within the legislative definition of the “practice of law.” TEX. GOV’T
CODE § 81.101(a). But as we conclude above, the mere presence of
out-of-state attorneys’ names and contact information on a pleading
below the signature of a licensed Texas attorney is no evidence that the
out-of-state attorneys engaged in the unauthorized practice of law by
“prepar[ing]” the pleading in the sense contemplated by the statutory
definition.
Apart from the presence of the out-of-state attorneys’ names on
the signature block, the trial court also heard evidence and argument
about how the defendant’s answer was prepared. Counsel for Velasquez
suggested that out-of-state counsel must have prepared the answer
because it looked different from Koehler’s other filings. Despite this
speculation, the testimony established only that Riley and Kern
7
“reviewed” the answer and “provided input” and that Koehler had total
control over the content of the pleading, which he signed and filed. 3
Even if the answer “looked” different from Koehler’s other filings,
this is no evidence that Riley or Kern “prepared” the answer. A Texas
attorney preparing a document is certainly free to make use of clerical
assistance, such as document formatting, from out-of-state attorneys or
non-lawyers without raising any concerns about the unauthorized
practice of law. Nor does a Texas attorney’s willingness to consider
helpful input or suggestions from out-of-state attorneys or non-lawyers
indicate that someone who is not a Texas attorney “prepared” the
document and thereby engaged in the unauthorized practice of law. The
undisputed evidence was that Koehler prepared the filing, controlled its
contents, filed it himself, and took full responsibility for it. There is no
evidence that any assistance Koehler accepted from Riley or Kern
amounted to the unauthorized practice of law by out-of-state attorneys.
The court of appeals also suggested that the trial court could have
considered the nonresident attorneys’ prior appearances in Texas courts
3 When counsel for Velasquez asked Kern whether the answer “was
your answer and you signed that pleading and you filed it,” Kern testified, “No,
sir, that’s not true at all.” Kern testified instead that, because she and Riley
“were not admitted pro hac vice, it was Mr. Koehler who took steps to prepare
and to file that answer” and “it was his document. It was his pleading. He
signed it and he filed it.” Kern testified that she reviewed the answer and “had
input,” but “it was sent to Mr. Koehler for his total review and revamping as
he wanted to do because he was our counsel and he was going to file it.” Riley
similarly explained that she reviewed pleadings and that she and Kern “gave
our input” on “some factual things,” but testified that “Ms. Kern did not and I
did not” prepare or submit any pleadings. She denied that she “and Ms. Kern
prepared the original answer and special exceptions in this case and submitted
it to Mr. Koehler for his signature.”
8
as a basis to deny the pro hac vice motions. Rule 19(d) states that the
court may consider whether the nonresident attorney “has been
appearing in courts in Texas on a frequent basis.” This aspect of the
rule contemplates that out-of-state attorneys who frequently practice in
Texas court should not be permitted to evade Texas’s licensure
requirements by routinely seeking admission pro hac vice in case after
case.
Rule 19(a)(3) requires the pro hac vice motion to list the Texas
cases in which the nonresident attorney appeared or sought to appear
in the past two years. Riley attested, without contradiction, that she
had not appeared in a Texas court in the past two years. Her previous
participation in Texas litigation therefore provides no basis for denial of
her pro hac vice motion.
Kern attested that she had appeared in one Texas case in the last
two years. She later testified that she might have appeared in one other
Texas case in the past two years and that she had appeared in an
unspecified number of Texas cases in the last 30 years. She described
the Texas cases as “rare occasional cases” amounting to a “very small
handful.” Consistent with this testimony, Velasquez’s counsel
submitted copies of filings indicating that, since 2007, Kern had sought
or obtained permission to appear in five Texas cases.
Kern’s participation in one or two Texas cases in the last two
years—and five cases in fifteen years—is not “appearing in courts in
Texas on a frequent basis” as contemplated by Rule 19. Facilitating this
kind of rare, occasional participation in Texas cases by an out-of-state
9
attorney is precisely why we allow pro hac vice admission in Texas
courts.
Finally, the court of appeals suggested that the trial court could
have considered an unpublished Fifth Circuit decision that contains a
discussion of Kern’s conduct at a 2009 jury trial. See Alexander v.
Monsanto Co., 396 F. App’x 137 (5th Cir. 2010). In that case, an
employment-discrimination plaintiff complained on appeal that Kern,
counsel for the employer, misstated the law and the facts in various
respects during voir dire and closing arguments. The court of appeals
found no reversible error, but it stated that several voir dire questions
asked by Kern were “rather inflammatory” and left an “inaccurate and
unwarranted” impression of the plaintiff’s deposition testimony. Id.
at 140. The court also found that one of Kern’s unobjected-to statements
of law at closing argument was “not entirely correct.” Id. at 139. Kern’s
comments and lines of questioning 14 years ago, as described in the
Alexander opinion, may reflect overzealous advocacy in the heat of trial,
but they did not inject reversible error into the Alexander case, and they
did not lead to any sanctions or disciplinary proceedings revealed in the
record before the trial court or before this Court. Nor does the record
reflect any other behavior by Kern during her 30-year career that could
reasonably cast doubt on whether she is “a reputable attorney who will
observe the ethical standards required of Texas attorneys.” TEX. RULES
GOVERN. BAR ADM’N R. 19(d). Denial of Kern’s pro hac vice motion on
this basis would have been improper.
All of the grounds for denial of the pro hac vice motions relied on
by either the trial court or the court of appeals fail as a matter of law.
10
Denial of the motions was a clear abuse of discretion, and this error
improperly prevented AutoZoners from employing the counsel of its
choice, which cannot be remedied by appeal. See, e.g., Keller Indus., Inc.
v. Blanton, 804 S.W.2d 182, 186 (Tex. App.—Houston [14th Dist.] 1991,
orig. proceeding) (granting mandamus relief to correct improper denial
of pro hac vice motion because “there is no adequate remedy available to
relator via appeal”); see also NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d
398, 400 (Tex. 1989) (granting mandamus relief because
“[d]isqualification of counsel renders remedy by appeal inadequate”).
V
Without hearing oral argument, we conditionally grant the
petition for writ of mandamus. TEX. R. APP. P. 52.8(c). The trial court
is directed to withdraw its order denying the motions of Kern and Riley
to appear pro hac vice and to grant those motions. We are confident the
court will comply, and the writ will issue only if it does not.
OPINION DELIVERED: April 26, 2024
11