pro hac vice admission

IN THE SUPREME COURT OF GEORGIA

MATTHEW CHAN,  Appellant,

v.

LINDA ELLIS, Appellee

DOCKET NO: S14A1652
LOWER COURT NO: SU13DM40
COURT OF APPEALS DOCKET NO.: A14A0014

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APPELLANT’S OBJECTION TO AMENDED APPLICATION OF TIMOTHY B. MCCORMACK FOR PRO HAC VICE APPEARANCE

    Initially, Appellant wants to make clear to this Court that Appellant has no objection to the pro hac vice admission of attorney Timothy B. McCormack or to his being given leave to file an amicus curiae brief and orally argue the points in that brief  on behalf of Appellee. Mr. McCormack was so admitted and given such leave in the Georgia Court of Appeals and had already filed his amicus curiae brief with the Georgia Court of Appeals at the time of this case’s transfer to the Supreme Court of Georgia. 1

Footnote [1] For some reason, that brief and Appellant’s Reply Brief did not get docketed with the case when it was transferred and I have been in communication with the Court of Appeals’ clerk’s office a few times to have those briefs sent to the Supreme Court for docketing.     

    Appellant does object to the amended application in that it is unclear if it seeks to expand the scope of Mr. McCormack’s appearance and role in the case; it also apparently seeks to introduce new facts and arguments not addressed in the trial court. While attorney for Appellee states that the application has a “limited purpose,” the application asks for leave to allow Mr. McCormack to:

(a) make oral argument;

(b) file supplemental brief(s) on behalf of Appellee;

(c) file responsive brief(s) on behalf of Appellee;

(d) file supplemental brief(s) on behalf of unknown third parties who may wish to remain anonymous;

(e) file responsive brief(s) on behalf of unknown third parties who may wish to remain anonymous;

(f) appear pro hac vice on behalf of himself and his law firm because he has an interest in the outcome of this litigation.

This hardly seems like a “limited purpose” but in fact seems like a request for admission pro hac vice for leave to appear as an additional attorney of record for Appellee because an amicus would not be allowed to file supplemental and responsive briefs on behalf of a party.

    In the Court of Appeals, Appellee initially moved to have Mr. McCormack admitted pro hac vice as both amicus curiae and associate counsel. Appellant filed an objection on various grounds and Appellee then filed an amended application stating that it was “in error” to request Mr. McCormack’s admission as associate counsel and that the admission was to be only as amicus curiae. The Court of Appeals granted only the amended application and admitted Mr. McCormack for the purpose of allowing him to submit an amicus curiae brief. Now  in the Supreme Court the reverse has happened: Appellee originally filed an application for Mr. McCormack’s admission solely as amicus curiae, which Appellant has not opposed, and now has filed another amended application to change the nature of  Mr. McCormack’s admission to seemingly act as amicus and associate counsel.

    Appellant would not object to Mr. McCormack’s admission pro hac vice as an additional attorney of record for Appellee but it is respectfully submitted that he cannot do both – serve as amicus curiae and as an attorney of record for a party. Appellant objects to this request to serve this dual role.

    Appellant also objects to the application’s reference to anonymous individuals and entities that allege “victimization” and allege to have “fear of retaliation” from the “tactics and positions” taken by Appellant.  While Appellant is confident that this Court will see that those “tactics and positions” are merely “speech,” Appellee’s application needlessly tries to taint the Court’s view of Appellant before it has read the briefs or heard oral argument.

      Appellee or Mr. McCormack could have just as easily have applied for leave to allow Mr. McCormack to appear as amicus curiae, as he did in the court below, without making these references or at least have waited to see if any entity or individual would lend their name in support of Appellee’s (or apparently Mr. McCormack’s) positions.2

        Finally, the application, by making those references, seeks to bring new issues and new facts before this Court that were not presented to the trial court and which are not part of the trial court record.  An amicus curiae “has no control over the litigation and . . . must accept the case before the court with the issue made by the parties.” Fulton County v. Bartenfeld, 257 Ga. 766 (1988).  Additionally, evidence which is only contained in an amicus curiae brief should not be reviewed or used by the court. Collier v. Evans, 199 Ga.App. 763 (1993).

Footnote [2] It should be noted that one of the points raised in Appellant’s Brief is that the trial court allowed into evidence a lengthy affidavit from Mr. McCormack which Appellee submitted as part of her case in chief. Mr. McCormack therefore has also served as an evidentiary witness in this matter.

       The Appellant therefore asks that the Court grant the application only to the extent of allowing Mr. McCormack to appear and orally argue pro hac vice as either an additional attorney of record for Appellee or as an amicus curiae but not both.  Regardless of Mr. McCormack’s role in this case, it is also respectfully requested that any briefs submitted be limited by the evidentiary record already created in the trial court.

Respectfully Submitted, this 13th day of August, 2014,

 Respectfully,

 /s/ Oscar Michelen
Oscar Michelen
Counsel for Appellant
Georgia Bar No.: H10048
Cuomo LLC
200 Old Country Road
Suite 2 South
Mineola, NY 11501
516-741-3222
omichelen@cuomollc.com

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