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Elena Katz and Arnold Grodman v. Brian Mcveigh

April 20, 2012

ELENA KATZ AND ARNOLD GRODMAN
v.
BRIAN MCVEIGH, ET AL.



The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

SUMMARY ORDER

Francis J. McDonough, a member of the bar of this court, has moved for the admission pro hac vice of Louis M. Piccone, an attorney licensed to practice in Pennsylvania, to represent the plaintiffs, Elena Katz and Arnold Grodman, in this federal civil rights action. See L.R. 83.2(b). While this court routinely grants motions for admission pro hac vice, this one is unusual in that (1) Piccone had previously been admitted to appear pro hac vice in this action, but was later allowed to withdraw after his license to practice in Pennsylvania was suspended, and (2) now that Piccone has moved for re-admission, following the reinstatement of his Pennsylvania license, nearly all of the defendants have objected, alleging his "past misconduct, serious misunderstanding of appropriate practices, inappropriate behavior and a repeated pattern of litigation conduct designed to hinder litigation and waste judicial and attorney resources."

Specifically, the defendants point out that:

* Piccone was initially denied admission to the bar of the United States Patent and Trademark Office due to a lack of candor in his application, though he was later admitted when the USPTO's commissioner reversed that decision by granting an internal appeal, see Piccone v. Moatz, 136 F. Supp. 2d 525, 526-27 (E.D. Va. 2001) (dismissing Piccone's suit for damages arising out of USPTO's delay in acting on the appeal), aff'd, 25 Fed. Appx. 950 (Fed. Cir. 2001);

* Piccone was fined for contempt by a federal district court in New York for failing to file submissions and appear at conferences as ordered, Nolan v. Primagency, Inc., No. 07-134, 2008 WL 650387, at *2-*3 (S.D.N.Y. Mar. 3, 2008); the court later dismissed the action with prejudice as a sanction for Piccone's failure to comply with any of the filing requirements set forth in the contempt order, Nolan v. Primagency, Inc., No. 07-134, 2008 WL 1758644, at *5 (S.D.N.Y. Apr. 15, 2008);

* another federal district judge, in the District of Massachusetts, referred Piccone to that state's Board of Bar Overseers for his "unorthodox efforts" to represent a party pro hac vice there, Babeu v. Linker, No. 09-30045 (D. Mass. Apr. 24, 2009);

* a federal magistrate judge in the District of Massachusetts observed that Piccone was "playing fast and loose with [that] court's rules" by "aiding [a party's] case without admission in [that] jurisdiction," Hohn v. Burke, No. 09-30143 (D. Mass. Aug. 28, 2009), slip op. at 3;

* the same magistrate judge subsequently denied Piccone pro hac vice admission in a different case, finding that he had been engaged in the unauthorized practice of law in Massachusetts, that his conduct in that court had been "frequently inappropriate and unprofessional," and that he had "engaged in a pattern of behavior which not only purposefully skirted [that court's] authority but, as well, wasted judicial resources and potentially harmed litigants," Pease v. Burns, 679 F. Supp. 2d 161, 165 (D. Mass. 2010);

* another judge of this court dismissed a case involving the same plaintiffs and some of the same defendants as this one after no proof of timely service or motion for Piccone's pro hac vice admission had been filed, despite "ample time" to do so, Katz v. McVeigh, No. 10-178 (D.N.H. Sept. 29, 2010) (Barbadoro, J.);

* another federal district court, in Illinois, ordered that it would accept no further filings from Piccone in a case after he had filed a complaint on behalf of the plaintiff "pending admission pro hac vice" but then ignored the court's repeated requests to comply with its requirements for admission and electronic filing, Hankins v. Burton, No. 11-408 (C.D. Ill. Aug. 29, 2011); and

* the Rockingham County Superior Court, in this state, removed Piccone from his role as counsel to Grodman in a criminal case there, finding that Piccone "does not have the capacity to understand [that] Court's clear pretrial orders or he has elected to violate them . . . . [I]t is clear that he cannot provide Mr.

Grodman with a competent defense," New Hampshire v. Grodman, Nos. 09-2511, 10-469 (N.H. Super. Ct. Aug. 25, 2011), slip op. at 4, though the court later reinstated Piccone on Grodman's pro se motion for reconsideration, New Hampshire v. Grodman, Nos. 09-2511, 10-469 (N.H. Super. Ct. Oct. 24, 2011), slip. op. 2. "Any attorney who is a member in good standing of the bar of any court of the United States or of the highest court of any state may appear and practice before this court in that action at the court's discretion." L.R. 83.2(b).*fn1 Thus, in this court, as in many other federal district courts, "'the decision on whether to grant pro hac vice status to an out-of-state attorney is purely discretionary.'" Roma Constr. Co. v. aRusso, 96 F.3d 566, 576-77 (1st Cir. 1996) (quoting Frazier v. Heebe, 482 U.S. 641, 651 n.13 (1987)). In exercising this discretion, a court may "consider the effect of the attorney's past actions (especially past ethical violations) on the administration of justice within the court," even if they are not "of the frequency or nature whereby the attorney could face disbarrment proceedings." Panzardi-Alvarez v. United States, 879 F.2d 975, 980 (1st Cir. 1989). Such actions may include those demonstrating "a serious lack of understanding regarding appropriate practice," as well as "behavior resulting in reprimands and wasted judicial time." Kampitch v. Lach, 405 F. Supp. 2d 210, 215-16 (D.R.I. 2005) (quotation marks and ellipse omitted).

Piccone's prior conduct, both in this proceeding and the others cited by the defendants, readily lends itself to that characterization. In a number of those other proceedings, Piccone simply ignored the court's orders directing him to make filings or take some other action--in some cases, repeatedly. Many of these failures were completely unexplained (at least based on anything discernable from the orders or dockets in those cases) and all of them required the court in question to expend resources unnecessarily. Moreover, Piccone has engaged in similar conduct in this proceeding, to similar effect:

* on September 20, 2010, this court ordered that a motion for Piccone's admission pro hac vice be filed within 30 days. Order of Sept. 20, 2010. After more than 40 days had passed and nothing had been filed, however, this court, ...


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