Rule 3. Pro Hac Vice Admission and Registration of Nonresident Attorneys

Effective Date: 3/1/2005

Obsolete Date: 1/1/2013

A. Pro Hac Vice Admission. Pro hac vice admission is required for all nonresident attorneys admitted and licensed to practice law in another state or the District of Columbia, but not licensed in North Dakota, and who engage in the practice of law in this state by appearing, either in person, by signing pleadings, or by being designated as counsel in actions filed in state courts, administrative agencies, or tribunals.

1. Filing Requirements.
(a) A nonresident attorney may occasionally be permitted to appear as counsel in an action in a trial court of this state or before an administrative agency or tribunal in this state if the attorney first:
(1) designates an associate attorney admitted and licensed to practice law in this state; 
(2) files a motion requesting permission to appear and an affidavit in support of the motion with the clerk of the trial court, the hearing officer of the administrative agency matter, or the presiding officer of the tribunal; 
(3) files a copy of the motion and affidavit with the State Board of Law Examiners at the same time they are filed with the appropriate individual identified in Section A(1)(a)(2); 
(4) remits to the State Board of Law Examiners the fee required for an attorney who has been licensed in this state for five years or more or certifies the attorney has paid the fee to the State Board of Law Examiners during that calendar year; and 
(5) obtains permission from the court, hearing officer, or presiding officer.

(b) In the affidavit in support of the motion requesting permission to appear in a North Dakota action, the nonresident attorney must state:
(1) the jurisdictions in which the attorney is admitted to practice law and the number of years admitted; 
(2) whether the attorney is presently subject to a disciplinary proceeding in any jurisdiction; 
(3) whether the attorney is under any restriction or probation in the practice of law in any jurisdiction in which the attorney is licensed; 
(4) whether the attorney is now or has ever been suspended or disbarred from a court in any jurisdiction; and 
(5) the number of North Dakota actions in which the nonresident attorney has appeared during the prior three years, and whether the attorney has ever registered under this rule.

2. The motion requesting permission to appear must be filed no later than 45 days after service of the pleading, motion, or other paper.

3. Names and Appearances. The name and address of the associate attorney must be shown on all papers served and filed. The associate attorney shall appear personally and, unless excused by the court, hearing officer, or presiding officer, remain in attendance with the nonresident attorney in all appearances before the court, administrative agency, or tribunal.

4. Frequency of Motions. Separate permission is required for each action in which a nonresident attorney appears in a North Dakota state court proceeding, before an administrative agency, or before another tribunal in the state.

5. Appeal.

(a) If an attorney desires to appear in a proceeding before a North Dakota appellate court, and the attorney obtained permission to appear in a proceeding involving the same action in a North Dakota state trial court, administrative agency, or tribunal, the attorney only needs to file an updated affidavit with the Clerk of the Supreme Court. An additional filing fee is not required to be remitted to the State Board of Law Examiners, unless it is a new calendar year. 
(b) If an attorney desires to appear in a proceeding before a North Dakota appellate court, and the attorney did not obtain permission to appear in a proceeding involving the same action in a North Dakota state trial court, administrative agency, or tribunal, the attorney shall file a motion and affidavit with the Clerk of the Supreme Court requesting permission to appear. The motion, affidavit, and fee must be submitted as otherwise provided in Section A(1).

B. Registration. A nonresident attorney must register under this section if the attorney represents a client in an alternative dispute resolution process in this state or is employed in North Dakota as in-house counsel exclusively for a corporation or its subsidiaries or affiliates, an association, or a business whose lawful activities are other than the practice of law or the provision of legal services. The attorney must be admitted and licensed to practice law in another state or the District of Columbia, but not licensed in North Dakota, and, except for the time requirements in Rule 7A, must be otherwise qualified for admission to the practice of law in this state.

1. Registration Requirements. An attorney must file with the State Board of Law Examiners the following:
a. An affidavit requesting permission to render legal services in North Dakota for the calendar year as in-house counsel or by representing a client in an alternative dispute resolution process and stating:
(1) the jurisdictions in which the attorney is admitted to practice law and the number of years of admission; 
(2) whether the attorney is presently subject to a disciplinary proceeding in any jurisdiction; 
(3) whether the attorney is under any restriction or probation in the practice of law in any jurisdiction in which the attorney is licensed; 
(4) whether the attorney is now or has ever been suspended or disbarred in any jurisdiction; and 
(5) whether the attorney has appeared in any North Dakota actions based on pro hac vice admission during the past three years, and how many years the attorney previously registered under this rule.

b. With respect to an attorney registering as in-house counsel, an affidavit from an officer, director or general counsel of the attorney's employer in this state attesting that the registrant is employed as an attorney exclusively for the employer, that the registrant is an individual of good moral character, and that the nature of the employment qualifies the attorney for registration under this rule. With respect to an attorney registering to represent a client in an alternative dispute resolution process, a letter from the disciplinary authority in each jurisdiction in which the attorney is admitted indicating the attorney is in good standing in the jurisdiction.

c. The fee required for an attorney who has been licensed in this state for five years or more.

2. Frequency of Registration. Registration is required for each calendar year in which a nonresident attorney provides legal services in this state as provided in this rule and N.D.R. Prof. Conduct 5.5.

3. Continuing Legal Education Requirements. Each nonresident attorney who is registered as in-house counsel under this section must complete not fewer than 45 hours of approved coursework in Continuing Legal Education during each three-year period the attorney is registered and must file a report as provided in the North Dakota Rules for Continuing Legal Education.

4. Limitation on Registration. A nonresident attorney may provide legal services under this rule for 5 years or until the attorney becomes eligible for admission based on practice as provided by Rule 7A, whichever is earlier. After that time, the attorney must apply for and be admitted to the practice of law in North Dakota to provide any legal services in this state.

5. Automatic Termination of Registration. Permission to render legal services based on registration expires at the end of each calendar year, if employment by the employer filing the affidavit required by this rule is terminated, or if the nonresident attorney becomes eligible for admission under Rule 7(A).

6. Pro Hac Vice Admission Separate. If a nonresident attorney registered as in-house counsel under this section desires to appear, either in person, by signing pleadings, or by being designated as counsel in actions filed in courts, administrative agencies, or other tribunals in this state, a separate motion for pro hac vice admission is required under this rule. However, a separate fee is not required, provided in-house counsel has registered under this rule.

C. Ineligibility for Pro Hac Vice Admission or Registration. A nonresident attorney who is currently under suspension, disbarment, or license restriction in any jurisdiction is not eligible for pro hac vice admission or registration under this rule.

D. Use of Fees. Fees collected by the State Board of Law Examiners under this rule must be distributed in the manner provided for the distribution of license fees under N.D.C.C. Section 27-12-04.

Rule 3 was amended, effective March 1, 2005, to incorporate N.D.R.Ct. 11.1, with modifications, and provide for pro hac vice admission for all adjudicative proceedings and for registration of in-house counsel.

Section A(6) was added effective October 1, 2016, to provide for non-resident lawyers to participate in an alternative dispute resolution process under the filing requirements for pro hac vice admission.

This rule is not limited to an appearance in a North Dakota state court action.

Under this rule, an appearance is not limited to actual physical presence in a court action. A lawyer also makes an appearance by signing or otherwise being designated as counsel on a pleading, motion, or other paper served or filed in an action venued in a North Dakota state court, administrative agency, or other tribunal.

Section A(2) of this rule requires a motion for permission to appear to be filed within 45 days of service of a pleading, motion, or other paper. If an action is commenced by service, a lawyer should be aware that the action must be filed before the lawyer moves for permission to appear. If the action settles before it is filed, a motion requesting permission to appear does not need to be filed.

New Section B was adopted, effective October 1, 2016, to provide procedures for pro hac vice admission of foreign lawyers.

Section B was amended and adopted as Section C, effective October 1, 2016, to include registration provisions applicable to foreign lawyers.

New Section E was adopted, effective October 1, 2016, to provide a definition related to pro hac vice admission and registration of foreign lawyers.

A lawyer seeking to take a deposition within the state of North Dakota for an action pending in another jurisdiction must comply with N.D.R. Prof. Conduct 5.5.

SOURCES: Joint Procedure Committee Minutes of May 6-7, 1999, pages 2-7; January 28-29, 1999, pages 13-16; November 7-8, 1991, page 6; October 25-26, 1990, page 19; June 21, 1984, pages 1-2  Joint Committee on Attorney Standards Minutes of June 24, 2003, pgs. 5-8; September 25, 2003, pgs. 2-8; November 14, 2003, pgs. 2-6; February 27, 2004, pgs. 3-5; and April 16, 2004, pgs. 1-6; June 13, 2012, pg.11 February 26, 2016; and April 29, 2016.

CROSS REFERENCE:N.D.R. Prof. Conduct 5.5.

SUPERSEDED: N.D.R. Ct. 11.1.

[Amended effective March 1, 2000; amended effective March 1, 2005; amended effective January 1, 2013; amended effective April 1, 2013; October 1, 2016.]

Effective Date Obsolete Date
10/01/2016 View
01/01/2013 10/01/2016 View
03/01/2005 01/01/2013 View
03/01/2000 03/01/2005 View
01/01/2000 03/01/2000 View