Rule 1-3.10(a)(2) of the Rules Regulating the Florida Bar (“Appearance by Non-Florida Lawyer in a Florida Court”) provides that “non-Florida lawyers shall not be permitted to engage in a general practice before Florida courts,” and further states that “for purposes of this rule more than 3 appearances within a 365-day period in separate representations shall be presumed to be a general practice.” The Comment to the Rule, which follows below, specifically addresses what constitutes an “appearance” and how to calculate the number of “appearances” in a 365-day period. It is also important to note that the Comment distinguishes between appearances in state court and federal courts sitting in Florida. The appearance by a non-Florida lawyer in federal courts sitting in Florida does not count as an appearance in Florida state court. However, a non-Florida lawyer will need to separately evaluate the number of times which he or she may be permitted to “appear” pro hac vice in one or more federal courts sitting in Florida.

Comment

Subdivision (a)(2) defines and prohibits the general practice before Florida courts by non-Florida lawyers. For purposes of this rule, an “appearance” means the initial or first appearance by that non-Florida lawyer in a case pending in a Florida court, and includes appearing in person or by telephone in court or filing a pleading, motion or other document with the court. A non-Florida lawyer making an appearance in a Florida court is required to comply with rule 2.510 of the Florida Rules of Judicial Administration.

This rule does not prohibit a non-Florida lawyer from participating in more than 3 cases during any 365-day period; instead, it prohibits a non-Florida lawyer from making an initial or first appearance in more than 3 cases during any 365-day period.

Example: The following example illustrates the application of this rule to a non-Florida lawyer’s appearances. Assume for this example that a lawyer licensed to practice in Georgia only has been admitted pro hac vice pursuant to Fla. R. Jud. Admin. 2.510 in 3 separate Florida cases on the following dates: January 10, 2008; February 3, 2008; and February 20, 2008.

(1) In this example, the lawyer would be prohibited from seeking to appear pro hac vice under Fla. R. Jud. Admin. 2.510 in another separate representation until the expiration of the 365-day period from his or her oldest of the 3 appearances (i.e., until January 10, 2009).

(2) In this example, the lawyer would be permitted under this rule to seek to appear pro hac vice in a new case on January 10, 2009 even if the 3 cases in which he or she made an appearance are still active.

(3) In this example, the lawyer could seek to appear pro hac vice in yet another new case on February 3, 2009. The fact that the lawyer’s cases in which he or she appeared on January 10, 2008, February 3, 2008, February 20, 2008, and January 1, 2009 [sic] are still active would not prohibit that lawyer from seeking to appear in the new case on February 3, 2009, because, as of that date, the lawyer would have only made an initial appearance in 2 prior cases within that preceding 365-day period (i.e., on February 20, 2008 and January 1, 2009 [sic]). Thus, under this rule, a non-Florida lawyer could have pending more than 3 cases for which he or she has appeared at any given time, as the restriction on general practice relates to the making of an initial appearance within a 365-day period and not to whether any such case is still active following the expiration of 365 days.

(4) Similarly, in the above example, if the non-Florida lawyer’s 3 cases are all resolved by April 1, 2008, that lawyer would still be prohibited from seeking to make a new appearance until the expiration of the oldest of the 3 prior appearances (i.e., until January 10, 2009).

The purpose of this comment is to explain what constitutes an “appearance” under this rule and how to calculate the number of appearances in any 365-day period. This comment and the rule itself do not require a Florida court to grant any specific request to appear under Fla. R. Jud. Admin. 2.510 if the non-Florida lawyer meets the requirements of subdivision (a)(2). In all such cases, the decision of whether a non-Florida lawyer may appear in a case under Fla. R. Jud. Admin. 2.510 is within the discretion of the court.

This rule is not applicable to appearances in federal courts sitting in Florida, as appearances before each of those courts are regulated by the rules applicable to those courts. Further, an appearance in a federal court sitting in Florida does not constitute an “appearance” as contemplated by subdivision (a)(2), because subdivision (a)(2) applies only to appearances before Florida state courts.

Joel Ewusiak frequently serves as local counsel for non-Florida lawyers. Please contact Joel for assistance if you are seeking to appear pro hac vice in Florida courts.