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Arbitrating in Connecticut against an out-of-state lawyer has suddenly developed an adrenaline edge — like high-wire acts without a net. But the Superior Court’s Rules Committee has the issue in its sights and may propose clarifications within the next three months, said state Supreme Court Justice Peter T. Zarella, who chairs the committee. Lawyers across the country took note of an Oct. 18 ruling by Hartford Superior Court Judge Marshall K. Berger Jr. denying a New York lawyer pro hac vice admission to handle a local real estate arbitration, on grounds that Practice Book Rule 2-14, which authorizes such admissions, only applies to court proceedings. “For years it has been simply a matter of don’t ask, don’t tell,” said Harry Mazadoorian, who teaches courses on alternative dispute resolution at Quinnipiac University School of Law. Few, if any, Connecticut lawyers opposed out-of-state lawyers’ authority to participate in an arbitration on grounds that it was the unauthorized practice of law, he said. Now, those Connecticut lawyers who preside over arbitrations are divided on what they can and cannot do. West Hartford arbitrator Robert P. Wax said he would not break off an arbitration simply because one party complained that a lawyer-representative was not admitted in Connecticut. “My position is, you’re not practicing law. The arbitrator or mediator doesn’t have to be a lawyer, and it’s not my jurisdiction,” when acting as an arbitrator, to decide whether someone representing an opposing party is involved in the unauthorized practice of law, Wax said. Taking a different view is Hartford lawyer Herbert A. Krasow, of Krasow, Garlick & Hadley. White Plains, N.Y., lawyer James W. Glatthaar wanted permission to arbitrate before Krasow, interpreting a commercial lease. Now that Berger has ruled he can’t give Glatthaar a green light, Krasow said, “it’s going to create a lot of havoc.” Until either the courts or the legislature provides direction, “it’s just going to be wait and see,” he said. In light of Berger’s opinion, Krasow said he would halt an arbitration if a charge of unauthorized practice was raised. In high-stakes arbitrations, said Mazadoorian, it’s quite common to have parties represented by out-of-state counsel. “When I go to New York for one of these,” he said, “it’s typical for the conversation to begin with, ‘How was your flight? How long are you staying? When do you have to go back?’” Berger’s ruling only said a judge could not grant pro hac vice status in an arbitration — not that such practice constitutes the unauthorized practice of law. The advisory ruling on that topic, Opinion 2002-2 by the Connecticut Bar Association’s Committee on the Unauthorized Practice of Law, deals with a New York lawyer engaged in a complex arbitration without Connecticut co-counsel. Carl T. Porto II, of Parrett Porto Parese & Colwell in Hamden, heads the UPL committee. He said he was not sure that simply having Connecticut co-counsel would rectify the problem. David T. Atkins, of Zeldes, Needle & Cooper in Bridgeport, concentrates in legal ethics and the law of lawyering. He said he usually advises arbitration clients to ask a judge for permission under the arbitration statutes, an “order in aid of arbitration” under C.G.S. � 52-422. Atkins’ former partner, Robert Harris, predicted Berger’s ruling in a Law Tribune column entitled “Lawyer or Criminal?” two years ago. Harris now works for a White Plains hedge fund. Raymond Garcia, of New Haven’s Garcia & Milas, devotes 80 percent of his practice to arbitration. “Most of the time I’m either in another jurisdiction or have a lawyer from another jurisdiction here in Connecticut. There are a lot of arbitrations going on as we speak with out-of-state lawyers not admitted pro hac or otherwise,” he said. “I don’t object.”

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