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White Plains, N.Y., lawyer James W. Glatthaar wanted to do it by the book. Before representing a client in a real estate arbitration, he sought permission from Hartford, Conn., Superior Court Judge Marshal K. Berger Jr. for admission pro hac vice. But in a ruling that may put out-of-state lawyers on thin ice in any Connecticut arbitration, Berger ruled that Connecticut’s Practice Book only allows pro hac vice appearances to pursue “a claim or appeal in any court of this state … .” Because an arbitration isn’t a court proceeding, Berger concluded he had no power to permit an out-of-state lawyer to arbitrate. Glatthaar is an experienced commercial property and arbitration lawyer in the White Plains firm of Bleakely Platt & Schmidt. The firm also has a Greenwich office. In his punctilious application to Berger, Glatthaar promised to register with Connecticut’s Statewide Grievance Committee, to designated Berger as his agent for legal process and to be supervised by a Connecticut-admitted partner. Houston Putnam Lowry, of Meriden’s Brown & Welsh, opposed Glatthaar’s motion on jurisdictional grounds. In his Oct. 18 ruling, Berger agreed he was powerless to consider Glatthaar’s request. Lowry is representing commercial landlord Southhaven Associates, which is attempting to evict tenants David and Kenneth Rosen over disputed lease payment terms at their Plaza Wines & Spirits Inc. in Southbury. Last spring, the Rosens retained Edward I. Yatkowsky, a White Plains solo, to represent them in an arbitration of the lease terms. Lowry personally sued Yatkowsky in Waterbury Superior Court June 30, seeking a restraining order to bar Yatkowsky from the arbitration, on grounds that doing so would be the unauthorized practice of law. In that case Lowry invoked a 2002 informal opinion of the Connecticut Bar Association’s committee on the unauthorized practice of law. It concluded that a New York lawyer engaged in a $50 million arbitration before the American Arbitration Association in Connecticut, without Connecticut co-counsel, would be engaging in the unauthorized practice of law. Lowry’s restraining order was denied, but the Rosens replaced Yatkowsky with lawyers from Bleakley Platt & Schmidt. A Connecticut-licensed partner in the firm’s Greenwich office, John Meerbergen, is representing the Rosens in their Waterbury housing court eviction matter. For efficiency, the Rosens wanted Meerbergen’s partner, Glatthaar, to represent them at the lease arbitration before Hartford lawyer Herbert A. Krasow. Peter F. Harrington, one of Glatthaar’s Connecticut-licensed partners, petitioned Berger to allow Glatthaar to appear pro hac vice at Krasow’s office. He applied to the administrative judge because “there is no actual cause to be tried before any judge,” just a hearing before Krasow in his Hartford law office. But because there was no court case, Berger concluded he could not grant pro hac vice status under the practice book rule. CONFLICTING POLICIES Yatkowsky, in an e-mailed comment, noted, “The rules of the American Arbitration Association allow any person to represent a party in an arbitration.” The representative doesn’t have to be a lawyer, he notes, and is often chosen based on his knowledge of the subject matter and thus could be “an engineer, appraiser or physician.” Yatkowsky says Lowry’s citation to the CBA advisory opinion carries no legal weight. “I believe that the results of the opinion are specific to the matter for which it was issued and that on other facts the Committee would have found otherwise. The case involved extensive issues of Connecticut law, extensive discovery and a large sum of money in dispute.” Furthermore, Berger’s ruling that he didn’t have jurisdiction creates an “impossible situation” for out-of-state lawyers in arbitrations, Yatkowsky contends, because they can no longer “appear in the arbitration without the threat of an action for the unauthorized practice of law in the state of Connecticut.” NOT XENOPHOBIC For his part, Lowry says, “I think I’m right on Connecticut’s law.” Philosophically, he said, he believes states like New York, Illinois and the District of Columbia, which freely admit out-of-state lawyers in arbitrations, have the better public policy. Lowry has researched the national case law of state rulings on whether arbitration by a non-admitted lawyer is the unauthorized practice of law. During the last 65 years, courts have grown increasingly willing to bar out-of-state lawyers from arbitrations on unauthorized practice grounds. His 2003 paper on the subject is posted at www.brownwelsh.com. “The states that say it’s not OK are California, with the famous 1998 Birbrower case, [in which a New York firm was denied fees for California work on unauthorized practice grounds] and Arizona, Florida, Virginia, Ohio and Connecticut,” as signaled by Berger’s opinion and the CBA informal opinion. Lowry’s small-town firm has a number of international clients, and he first became interested in foreign lawyers’ freedom to arbitrate in 1990, when that became an issue in Hong Kong. To promote good will and problem resolution, Hong Kong made it clear foreign lawyers were welcome in arbitrations there. Lowry, then an officer in the CBA section on International Law and World Peace, gained CBA support of an amendment to Connecticut’s unauthorized practice law: “So, through the legislature, we amended C.G.S. Sec. 51-88 to say, if it’s an international arbitration, it’s not the practice of law if you represent a party in an arbitration.” For the last 15 years, thanks to Lowry’s impetus, foreign lawyers have been free to arbitrate international disputes in Connecticut without fear of being accused of the unauthorized practice of law. But thanks to Berger’s Glatthaar decision, and the CBA unauthorized practice committee’s viewpoint, out-of-state lawyers have reason to be nervous if they come to Connecticut to conduct an arbitration, Lowry says. Yatkowsky, whose case is pending, says the rules need to be clarified: “Competent and qualified attorneys should be allowed to apply for and be granted admission pro hac vice to appear in Connecticut courts and arbitrations.”

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