Rules Governing the Utah State Bar – Comment Period Closed May 22, 2020

USB14-0806.  Admission pro hac vice. Amend. Proposed changes exempt from the rule non-Utah licensed attorneys who are representing an Indian Tribe in a child custody proceeding pursuant to the Indian Child Welfare Act. Other changes correct typos and remove the requirement that original documents be submitted with the application.

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16 thoughts on “Rules Governing the Utah State Bar – Comment Period Closed May 22, 2020
  1. Erik Christiansen

    I don’t believe the Rule should be retroactive to May 2019. That is inconsistent with the COVID-19 pandemic and the very purpose of the proposed rule. I don’t believe it is appropriate to exempt 2020 graduates from taking a bar examination at all. I would favor a requirement that they take and pass the Utah Bar examination within 12-24 months of graduation. A total exemption from taking the Utah Bar examination is not in the best interests of the public, the purpose of the Utah Bar itself, and I believe this will stigmatize these graduates as lawyers who never took or passed the Bar examination. I think the Supreme Court’s proposed rule goes way too far — unnecessarily too far — beyond the need for the moment. I would request that the Rule be modified to apply to 2020 graduates only (not 2019), and have as a condition that they take and pass the Utah Bar Examination within 12-24 months of graduation.

    1. Kimberly Kraan

      Thank you, Erik. One of the more logical and thought out comments I’ve read after hearing news of the proposal to wave the entire requirements for the bar exam due to cov-19. To wave the exam is absurd, and abusive use of powers imparted for a ‘perceived’ covid-19, in other words creating a free pass, but doing so at expense of eroding professionalism. And, this begs the Q: will the state treat other graduates equitably and wave professional licensing exams for architects, engineers, medical doctors?

      Defer the exam, or even wave the fees Sure, but wave the exam altogether absolutely Not.

  2. Christina Zavell

    This order does not address individuals who have passed the bar in another state, but do not qualify to waive in to the Utah bar. Further, it does not provide a mechanism for individuals who may need to retake the bar exam and planned to so do in July 2020. As a JD, from an ABA accredited law school in another state, having passed a bar in another state and with years of practice this is a complete bar to practice for the foreseeable future.

  3. W.

    This is unfairly prejudicial, and does not take into consideration those who did not go to top 50 law schools, but would still have passed the bar exam. It also unfairly favors those who did go to top 50 law schools, but would not have passed. I don’t see how this proposal is a good solution to the current pandemic issues that law students/bar takers face at this time.

  4. UT 3L

    I applied for and passed C&F in Oregon to sit for the Oregon bar but because of the coronavirus I relocated to St. George because two of my family members are immuno compromised and I’ll be here until the crisis abates which could be more than a year. My position with the government in another UBE state is indefinitely frozen too and there is no sign that the bar in that state will be able to hold the exam as scheduled anyways. The last I heard, the exam will likely be cancelled and postponed till the fall or at worst February. And by the time I can take a February exam here in Utah, I will have been out of law school for 9 months and likely wouldn’t hear back about scoring for several more. That is almost a year post law school where I’m unable to work.

    So not only am I rooted to Utah for the next year or so, I have no means gaining admission or beginning my legal career here in Utah because I applied in a different State but thanks to extraordinary circumstances have to remain here. It seems like a minor change to the order extending the privilege for Utah residents/U/BYU graduates who have been displaced because of the corona virus and allow us to send a C&F application as soon as possible fixes the gap. There is also very little such a privilege would be abused because of it’s limited scope. I also support the idea that 2020 graduates take the exam within 24 months. My only issue would be that employers who don’t have the resources of larger firms would not hire new graduates knowing they need to take three months off to take an exam after considerable time practicing.

  5. Amy Kochert

    I would like to thank the Supreme Court for the proposed ruling in this matter, and show full support for the proposed decision with the exception of the 86% first-time bar passage rate requirement for law school. There is discrepancy between difficulty of bar exams across the nation and bar passage rates between states. Because of this discrepancy, requiring all law schools to perform at Utah’s bar passage rate of 86% would exclude students who go to schools that perform well above average on taking the bar for the first time, and it would include students who go to schools who are below average at taking the bar for the first time. This makes the 86% measure arbitrary. 

    Instead of using the flat 86% pass rate for all law schools across the nation, I recommend the Utah Supreme Court use the difference between the school’s passage rate of first-time test takers and the ABA weighted average of first-time bar test takers. This number would take into account the difficulty of passing the bar exam in each state, and provide a more accurate measure of a law school’s performance for first-time bar passage rates.

    On the 2019 report for law schools, the ABA includes a column (column J) which uses a simple equation (H – I = J) to report the difference between school performance of first-time test-takers (column H) and the ABA weighted average of first-time test takers (column I).The ABA weighted average varies from school to school depending on which states their students take the bar exam in, and the passage rate for various state bar exams. This may seem complicated but if you look at the law school reports it is very clear.  

    If the Utah Supreme Court would like to issue a ruling to ensure that law schools perform above average, they should require the difference between the law schools first-time passage rate and the ABA weighted average of first-time test takers to be a positive number. As long as a school has a positive difference between the school average and the weighted average, then that school’s students who are take the bar for the first-time are passing the bar at an above average rate.

    Utah’s first time bar passage rate of 86% is much higher than the national average of 80%. In fact, in 2018 Utah was in the top ten states who have the highest bar passage rates. For 2018, the list in order of highest to lowest includes: Oklahoma, Missouri, Iowa, New Mexico, Montana, Utah, Oregon, Kansas, Minnesota, and Nebraska.  In 2019, Utah surpassed all of those states expect for Kansas for highest pass rates. 

    Placing the cut off for law schools at 86%, which is the Utah rate, means that schools whose students mostly take the exam in Utah would only have to perform average to be accepted. Meanwhile, schools whose students take exams in states with significantly lower first time bar passage rates like California (69.11%), Colorado (76.89%), and Arizona (74.01%) would have to significantly outperform the average bar passage rate to make the cut. Likewise, law schools with students who take the bar exam in states which have a higher bar passage rate than Utah, like Kansas (87%), could perform below average on first time bar passage rates and still make the cut.

    In summary, a more complete and accurate measure of a law school’s performance on first-time bar passage rates would be to use the difference in the school’s performance of first-time test-takers and the ABA weighted average of first-time test takers (Column J on the 2019 ABA law school report).  A positive number means the school’s first-time bar passage is above average and a negative number means the school’s first-time bar passage is below average.

    Students may easily find this report of their school and submit it as proof that their school performs above average at first-time bar passage. 2019 bar passage reports can be found at:

  6. Sharik L Peck II

    Under this proposed rule it needs to be clarified how first time bar passage is counted. For Example, Penn State Law is ranked 25th in the country in 2020 for bar passage in the principle jurisdiction of the school with a first time bar passage rate of 92.6%, but even then it is unclear if it qualifies under the proposed rule. See It is incredibly hard to retroactively find the bar passage rate requested by the proposed rule. In 2019, as close as I can find, the national rate was 84.6% which would round only to 85%. Is it a reasonable reading that, despite being ranked top 25 for first time bar passage, a student in the schools top 20% still would possibly not pass under this rule. Therefore, I would request clarification, and if it is the case that the standard for the rule be 86% or more for first time test takers in either the principle jurisdiction or nationally. BYU does not even meet the 86% cutoff when measured by utah first time passage (76th with a rate of 83.3%)

    Since statistics are skewed significantly in small size law schools by a single student fail (each student accounts for around .8-2% of the graduating class of any law school and a larger share for % of out of jurisdiction takers) I propose that either statistic be accepted for the rule. Specifically, schools with either a base pass rate of 86% or with a pass rate within jurisdiction of over 86%. There is little difference between the two lists, but removing the variance by accepting both metrics will eliminate academic finageling of the rule to bennefit one candidate over a different otherwise equal candidate where the only question that needs to be determined, if the rule is implemented, is the relative probability of passing the bar if it were administered as planned.

    As a response to prior comments, a number of schools allow a December graduation, and a number of December graduates still wish to complete the bar in July. Since a December graduate would be on paper a 2019 graduate even though the actual graduations are mere months apart, I do not feel that predating the program to cover 2019 graduates who have not failed a bar exam previously is unduly prejudicial.

    If this rule is implemented, furthermore, I do not think it will cast a pall over graduates from top schools that they were admitted without taking the bar, especially given the effective requirement of a 360 hour apprenticeship after graduation that none before have been required to pass. If an attorney spends that time training a top student and then hires the student to work on their cases upon admission to the bar, it would prejudice the clients that the graduated lawyer is working for to revoke the license once issued if the newly barred lawyer were to subsequently fail the bar. It is unlikely that good students from good pass rate schools would fail the bar, but since they would have full bar membership at that point, it would invite disorder to require at a later date that they devote hours to general bar prep that would be better served being devoted as zealous advocates of their clients’ specific needs.

    1. Sharik L Peck II

      I have moved this comment to the correct proposed rule page. Sorry for the confusion.

  7. A

    I am extremely sensitive to the issues posed by COVID-19 to new law school graduates and the legal community alike. That said, I do not favor the Utah Supreme Court’s proposed rule. Instead, I favor allowing new law grads to practice under the third-year practice rule until such time when the bar exam can be given. Many active lawyers are presently struggling right now given the downturn in the economy as a direct result of COVID-19, and by adding additional lawyers (who haven’t been properly vetted by a bar exam) would unfairly prejudice those lawyers already in practice. I understand there may be some uncertainty as to when the bar exam can be given, but ultimately it is our job as judges and lawyers to ensure that the public and the law profession are protected and, in my view, allowing law school graduates admission to practice without taking the bar exam will not only inhibit their ability to obtain employment; they will also be stigmatized and/or disadvantaged throughout their careers by their peers, potential employers, and clients. In short, I disfavor this proposed rule and respectfully ask the Utah Supreme Court not to enact it.

  8. Benjamin Onofrio

    I waited to post this because I wanted to let the emotion of the moment pass by and attempt to address what I believe will be a mistake to remove the bar requirement–even for a year.

    The bar represents a barrier to practice that favors those with a current license. It is a way to keep our legal skills valuable in a market where lessening restrictions would devalue what we have worked so hard to obtain. To me, it represents the rigor of our field, it discourages those who cannot perform in a timed, high pressure environment from even trying to become lawyers. For others, it keeps them from practicing even if they manage to graduate. And considering the pass rate tends to be higher in higher ranked institutions, that suggests bar passage correlates with the quality of education received.

    Considering we are likely heading into the worst recession since the Great Depression, I’d advise all members of the bar to button up a little and look after our own interests as lawyers–as well as the health of the profession. As for me, I’m in house for a governmental entity and likely will not feel the effect that solos or small practice lawyers will, but imagine a glut of new lawyers to the market just when the work dries up worse than at any point in history. Imagine the pressure of the new grads to earn and the effect that may have one what they’re willing to do with their newly acquired licenses.

    Finally, while this decision may feel like mercy to the fledgling class of 2020, I wonder what effect it will have on them long term. From the materials the Utah Supreme Court has given us, It does not appear our state plans to go to a “diploma plus” plan going forward, so the class of 2020 will have the undesirable distinction of being the only class who never took or passed the bar. While I am not in a position to hire new grads and many on this thread would seem undeterred, would that hold for the rest of the bar who are in a position to hire? Come the end of the pandemic and resulting recession, will 2020 grads stack up against every other class when going to job interviews when it’s a publicly known fact none of them took the bar?

    By the way, why do the changes apply to class of 2019 (including May 2019 grads) as well? They had their chance to take the bar under normal circumstances.

  9. Katia K. Conrad

    As much as I commend the Utah Supreme Court and the powers that be in working to find a solution for this uncertain time, I do not support this temporary order as written. Many arguments have been presented, and likely do not need to be rehashed. It seems as though both those that support and oppose this temporary measure concede that there is no perfect solution. Additionally, the bar exam, while it may or may not be antiquated; and may or may not be the best way to measure minimum competence, is at least what the state of Utah has used for quite some time and apparently intends to keep using after the COVID19 pandemic subsides.

    As it stands then, the Class of 2020 stands to be in a unique position of having the option to being admitted to the Utah State Bar on a “diploma plus” system. As a basis for this, the Utah Supreme Court cites hardship, risk, and uncertainty for 2020 graduates, along with the obvious need for these graduates to be able to secure gainful employment, hopefully in the practice of law. These are not new concerns, as the classes from around 2008-2012 will tell you – many of us graduated with uncertainty, took jobs for the sake of having employment, and have come through one way or another – either in the legal profession or not.

    With that, I am concerned that this diploma plus system sets the class of 2020 to be taken advantage of as lawyers even more than they may stand to be already. It doesn’t appear deniable that we are heading into a recession, with recent law school graduates being employed for significantly less and working the same or more hours, as a result of fear of being expendable. This is not unique at all to the practice of law. However, this circumventing of the bar exam for one class is a unique situation, and I believe there is actual concern for the class of 2020 to risk being glorified law clerks and overworked, underpaid, and relegated to certain jobs should a firm or government agency decide not to take the risk in hiring them. I’m also concerned for what it may do to reciprocity, as going from a UBE state to diploma plus seems a somewhat drastic measure that goes from expansive reciprocity to minimal, if any. Many of us have made ourselves more marketable by become licensed in more than one jurisdiction, with the encouragement of our firms. This stands to make that harder, if not impossible, for a class that is likely disadvantaged as is.
    Finally, it is hard to support this without knowing how many eligible members of the bar are able to support the graduates while they are working their supervised hours. It is also hard to know what areas of the law this might be more feasible for, and those that may present more of a challenge. While I recognize that graduates have the option to forego this and take the next offered bar exam, by all accounts we are dealing with a population that is understandably anxious and likely financially compromised at this time. Decisions about a 40+ year career may not be an option if presented with a more immediate fix.

    For these reasons, I believe that the best choice would be to be to make every reasonable effort to hold the Bar Exam as scheduled, using distancing measures, a larger schedule, or online proctoring if available. I understand that the graduates are in this position through no fault of their own, but cannot support this as written without further justification.

  10. William Barquin

    RE: USB Rule 14-806 Admission pro hac vice.

    The Kootenai Tribe of Idaho comments in support of the proposed amendment to the Rules governing the Utah State Bar Rule 14-806 which would waive pro hac vice requirements for out of state tribal attorneys participating in child welfare hearings pursuant to the Indian Child Welfare Act (ICWA).

    The Indian Child Welfare Act is a critical law that helps protect the best interests of our Indian children and promotes the stability of Indian tribes and families. ICWA recognizes that removing children from Indian communities harms children who are denied the benefit of tribal culture and community.

    Removing barriers to tribal involvement in these cases will reduce the financial burden on Tribes’ limited resources and help with early tribal involvement and better outcomes for our children.

    The proposed amendment will promote better protection for Indian children in Utah Courts and should be approved.

  11. Sunshine Whitehair

    Re: Gila River Indian Community’s comments on the proposed amendment to Rule 14-0806, Admission pro hac vice (USB14-0806)

    To the Honorable Members of the Supreme Court of Utah and Utah Judicial Council,

    The Gila River Indian Community (the “Community”) is pleased to submit its comments supporting the proposed amendment to the Utah’s Proposed amendments to the Admission pro hac vice, Rule 14-0806, subsection (r) of which adds an exception to certain pro hac vice requirements for child custody cases subject to the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. The Community fully supports adoption of this rule for the reasons below.


    The Community is a federally-recognized Indian tribe composed of the Akimel O’otham (Pima) and Pee-Posh (Maricopa) peoples. The total enrollment of the Community is approximately 22,862 members. The Community occupies the Gila River Indian Reservation (the “Reservation”), located in southern Arizona, and encompasses over 372,000 acres of land in Pinal and Maricopa counties. The Community is both an urban and rural Community, and shares a border with the Arizona cities of Phoenix, Coolidge, Casa Grande, Gilbert, Maricopa and Queen Creek.

    The Community’s close proximity to several state courts in Arizona and neighboring states allows our tribal attorneys and Tribal Social Services case managers to be actively involved in child dependency cases when Indian children are enrolled or eligible for enrollment with our Community. The Community intervenes in every ICWA case in which our children and families are involved, whether in Arizona or other states. As a Community, we take great pride in becoming involved in state dependency cases as early as possible so that we may assist with identifying ICWA-compliant placements, establishing communication and relationships with all parties involved, and work with state agencies to support the best interests of our children.

    The Community considers that one of the primary purposes of 25 U.S.C. § 1911(c), which permits Indian tribes to intervene in state child custody proceedings involving their children, is that it gives Indian tribes a voice in state court proceedings where, historically, tribes have been left behind. The Community has appeared and intervened in ICWA cases involving its children in Utah, as well as Arizona, Alabama, California, Colorado, Idaho, Illinois, Iowa, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Ohio, Oklahoma, Oregon, Texas, Washington and Wisconsin. Unfortunately, Indian children from many out-of-state Indian tribes are involved in child custody proceedings. Generally, state courts welcome tribal attorneys in ICWA cases because of the specialized knowledge they bring to the proceedings.

    The proposed amendment to Rule 14-0806 facilitates the federal statutory right of Indian tribes to intervene in cases to which ICWA applies. As noted, infra, in-house attorneys for Indian tribes who are not state-licensed may appear in state court proceedings in any state because the federal right of an Indian tribe to intervene in cases to which ICWA applies preempts state regulation of attorney licensing.

    The Community has not experienced any issues with its attorneys appearing in any state court in an ICWA case, with one notable exception. Recently, a complaint was made to attorney disciplinary authorities in the State of Ohio by a client of the Goldwater Institute, alleging that a Community attorney who appeared as an ICWA representative in a case in Ohio was engaged in the unauthorized practice of law. Sadly, in that same case, pro hac vice admission rules were used as a sword by another party against the Community’s attorneys to attempt to gain an advantage in the litigation. An effective way to curb these frivolous complaints and abusive litigation practices is through doing what the amendment to Rule 14-0806 does—recognizing that non-licensed attorneys may appear in state court without going through regular, and often cumbersome, pro hac vice processes.


    The Community supports the proposed amendment because of the Community’s belief that a statewide rule will best facilitate the federal statutory right of Indian tribes to appear in state child custody proceedings involving their children. Appellate courts in other states which have addressed the issue uniformly hold that an Indian tribe participating in a child custody proceeding under ICWA is not required to appear through a state-licensed attorney.

    In Shuey, the Court of Appeals of Oregon held that the state interest in representation by an attorney is preempted by the context of ICWA proceedings. The Confederated Tribes of the Grande Ronde appealed the denial of a motion to intervene in state court ICWA proceeding. The trial court denied the motion because it was not signed by an attorney. Relying on Supreme Court precedent, the Court of Appeals reasoned that “[w]hen a state law ‘interferes with or is incompatible with federal and tribal interests,’ the Supreme Court requires balancing state and tribal interests.” Applying this standard, the Court of Appeals held that the state law requiring attorney representation was preempted by ICWA because “[t]ribal participation in state custody proceedings involving tribal children is essential to effecting the purposes of the ICWA.”

    Although the individual who signed the motion in Shuey was not licensed as an attorney in any state, the rationale of Shuey clearly applies to an in-house tribal attorney. Noting that the Grand Ronde usually appeared through its Director of Social Services, the court approved because “[t]hat necessarily requires familiarity with the procedural and substantive requirements of the ICWA, and with the procedures and organizations of other social service agencies.” In-house tribal attorneys are intimately familiar with the procedural requirements of ICWA and most have handled ICWA matters in many states. No state interest is infringed by permitting in-house tribal counsel to appear and participate “in the narrow context of these ICWA proceedings.”

    The sound reasoning of Shuey has been followed by two state supreme courts—in Nebraska and Iowa—and an intermediate appellate court in Florida. The Supreme Court of Nebraska held that the requirement that an Indian tribe be represented by a Nebraska-licensed attorney pursuant to the state law governing unauthorized practice of law was preempted by ICWA. Using the same balancing test as Shuey, the court in Elias L. held that ICWA specifically authorized representation in Nebraska ICWA cases by persons who were not Nebraska licensed attorneys, noting that “an employee of an organization can engage in certain acts that would normally constitute the practice of law if done for the sole benefit of the organization.” Again noting the narrow context of ICWA proceedings, the court held that the State’s interests are not necessarily compromised by allowing the tribe to be represented by a non-lawyer.

    Finally, in J.P.H., the District Court of Appeal in Florida held, in consolidated cases under ICWA, that the trial court erred when it denied the tribe’s petition to intervene because the tribe was not represented by a Florida attorney. Citing Elias L., N.N.E. and Shuey, the court held that the tribe had a clear right to intervene and “is not required to be represented by a member of the state bar, since prohibitions on the unauthorized practice of law interfere with and are thus preempted in the narrow context of state court proceedings subject to the Indian Child Welfare Act.”

    Every reported appellate case on this issue holds that the right of an Indian tribe to intervene in an ICWA case outweighs the state interest in regulation of attorney admissions. And these cases were correctly decided. Any pro hac vice rule adopted in Utah should reflect that its purpose is to facilitate the Indian tribe’s statutory right to intervene and participate and should impose minimal burdens and requirements on tribal attorneys.


    The proposed amendment to Rule 14-0806 recognizes an exception to the regular pro hac vice requirements for cases to which ICWA applies, so long as the non-Utah licensed attorney is admitted and in good standing in another United States jurisdiction appears for the limited purpose of participating in a child custody proceeding, pursuant to ICWA, while representing a tribe, without being subject to the requirements of this rule.

    The Community fully supports adoption of the proposed amendment, which seeks to follow the purpose and spirit of ICWA, to ensure consistency and ICWA compliance across all Utah courts in child custody proceedings. In enacting ICWA, Congress specifically found that “the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” Therefore, the participation of Indian tribes is imperative to ensure the proper application of cultural and traditional standards to the case and to the benefit of the children and families involved.

    ICWA’s purpose is to protect the best interests of Indian children and to promote stability and security for tribal communities and families by establishing minimum federal standards for the removal of Indian children from their families and the placement of such children in homes or institutions which will reflect the unique values of the Indian tribe. The proposed rule also makes sense in light of the law.

    Providing a pro hac vice exception for tribal attorneys in ICWA cases will lessen the financial and practical burdens on Indian tribes in appearing and participating in ICWA cases. Any pro hac vice rule permitting tribal attorneys to participate in ICWA cases must consider that many Indian tribes have limited resources. High pro hac vice fees and requirements to associate or appear with local counsel are significant burdens on an Indian tribe’s right to intervene and participate in ICWA cases. The time it takes to comply with such requirements works to the detriment of Indian children and families, as most state court dependency or abuse/neglect proceedings are subject to strict case deadlines. And, as noted, some parties may use this situation to attempt to exclude Indian tribes from participating in cases involving their children. To protect the best interests of Indian children, Indian tribes—through their attorneys or other ICWA representatives—must be able to intervene quickly as a matter of right.

    Finally, early tribal participation increases the likelihood of compliance with ICWA. In the Community’s experience, there are several reasons why early tribal participation in ICWA cases increases compliance with ICWA and produces better outcomes: (1) tribal attorneys and representatives are often more knowledgeable about ICWA than state agencies, particularly regarding determination of Community-specific standards or ICWA preferences; (2) Indian tribes have better access to locate tribal family placement options or other tribal-specific ICWA compliant placement options; and (3) Indian tribes can offer immediate knowledge or access to culturally appropriate services. The proposed rule is necessary because reducing costs and procedural steps for out-of-state tribes appearing in Utah courts is beneficial for all agencies and parties involved and, most importantly, for the children involved in these difficult cases.

    On behalf of the Gila River Indian Community, I thank you for the opportunity to comment on this proposed amendment to Utah’s Rule 14-0806, Admission pro hac vice. We very much support the adoption of this proposed amendment and appreciate your consideration of our comments. As a Community and partner in ICWA cases, we support the adoption of rules that support and further ICWA’s purpose of protecting the rights of Indian children, families and tribes.


    Stephen Roe Lewis, Governor
    Gila River Indian Community

  12. Brandelle Whitworth

    May 22, 2020

    RE: USB Rule 14-806 Admission pro hac vice.

    I fully support and encourage the approval of USB Rule 14-806, amending Utah’s Pro Hac Vice Rule, to eliminate pro hac vice requirements in Indian Child Welfare Cases.

    I am licensed to practice law in the states of Idaho, Washington, and Utah, as well as the Shoshone-Bannock Tribal Court. I have been employed as an in-house attorney with my Tribe, the Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho, for 20 years and during that time have appeared in ICWA cases in approximately 18 different states. Through the years, the Shoshone-Bannock Tribes has been required to spend thousands of dollars from our limited Tribal budget to pay Pro Hac Vice fees and/or hire local counsel to participate in ICWA cases across the United States. While tribes are allowed by federal law and regulation to use a tribal representative who is not an attorney, those in-house tribal attorneys face potential unauthorized practice issues in ICWA cases. Because tribes intervene in cases wherever the tribal children are, tribal attorneys must often appear in states where they are not licensed. This opens tribal attorneys up to unauthorized practice of law issues both in the state where they are intervening and in their home state. While appearing pro hac vice is often offered as a solution, it has significant limitations, including fees, association with local counsel, and the right of the state to deny the application.

    I can attest that bar licensure, pro hac vice fees, and/or the hiring of local counsel can be very cost prohibitive and often act as a bar to full participation of the very Indian tribes who’s rights were meant, in addition to the rights of the affected Indian children, to be protected by the Indian Child Welfare Act.

    Although many tribes receive federal grants for child and family services, those funds cannot be used for legal representation or for legal fees for litigation. See, e.g., 25 U.S.C. § 1931(a)(8); 25 CFR §§ 89.40-41. Other federal moneys for social services are similarly restricted and cannot be used to pay for legal services for litigation. 25 U.S.C. §§ 450 et seq. This Rule amendment provides a solution to these funding restrictions. Accordingly, this proposed rule change would improve the welfare of Indian children in Utah ICWA proceedings by ensuring that their tribes can meaningfully participate in Utah proceedings related to their children.

    Based on the foregoing, I strongly encourage your approval and amendment of Utah’s Pro Hac Vice Rule, to better enable Indian tribes’ participation in these types of cases in the great State of Utah. Thank you.

    Brandelle Whitworth

  13. Heather Tanana

    May 22, 2020

    RE: USB Rule 14-806 Admission pro hac vice.

    Congress passed the Indian Child Welfare Act of 1978 (ICWA) “to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families[.]” 25 U.S.C. § 1902. ICWA established minimum federal standards for the treatment of Indian children in state child custody proceedings, including the right of an Indian tribe to intervene and participate in any state child custody proceeding involving an Indian child from that tribe.

    Given the unique rights afforded Tribes under ICWA, pro hac vice admission will always “serve the interests of the parties and the efficient and just administration of the case,” and therefore, should always be granted. Under a federal preemption analysis, the rights and interests of the tribe to participate in ICWA proceedings far outweigh the rights and interests of a state with regard to the practice of law. Congress intentionally sought to protect the interests of tribes through ICWA’s substantive provisions when it found “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children[.]” 25 U.S.C. § 1901(3).

    While the proposed amendments are a step in the right direction toward fulfilling the intent and purpose behind ICWA, they do not go far enough. A pro hac vice rule should clearly:

    1) Waive the limit on the number of appearances;
    2) Waive the requirement to associate with local counsel;
    3) Waive any fees to appear; and
    4) Be available to counsel for Indian parent(s), Indian custodian(s), and Indian child(ren).

    While the proposed amendments seem to address the first three factors above, the current wording is vague and discretionary.

    Many tribes do not have the capacity to retain local counsel or pay prohibitive fees to appear in Utah ICWA proceedings. Although some tribes may receive federal grants for child and family services, those funds cannot be used for legal representation or for legal fees for litigation. See, e.g., 25 U.S.C. § 1931(a)(8); 25 CFR §§ 89.40-41. Other federal funds for social services are similarly restricted and cannot be used to pay for legal services for litigation. 25 U.S.C. §§ 450 et seq. While tribes are allowed by federal law and regulation to use a tribal representative who is not an attorney, such a representative faces potential liabilities in ICWA cases. Because tribes intervene in cases wherever the tribal children are, tribal attorneys must often appear in states where they are not licensed. This opens tribal attorneys up to unauthorized practice of law issues both in the state where they are intervening and in their home state. While appearing pro hac vice is often offered as a solution, it has significant practical limitations, as a result of required fees, association with local counsel, and the right of the state to deny the application. Finding local attorneys for these cases can consume hours of research and vetting. Moreover, finding local attorneys with familiarity with ICWA can be nearly impossible.

    Consequently, on behalf of the ICWA subcommittee of the Utah State Bar Indian Section, we offer the following comments. First, subsection (r) of Rule 14-806 should specifically exempt an attorney seeking pro hac vice admission for participation in an ICWA case (an “ICWA Applicant”) from the fees outlined in Rule 14-806(g)(8).

    Second, the new subsection (r) should explicitly exempt an ICWA Applicant from the eligibility requirement of subsection (e)(5). This may require an acknowledgment in subsection (r) that an ICWA Applicant may be permitted to file his or her own special motion for pro hac vice admission without the participation of local counsel.

    Third, subsection (r) should explicitly exempt an ICWA Applicant from any limits within the rule with regard to the number of appearances an ICWA Applicant can make once granted pro hac vice status.

    Fourth, the subsection should be changed to allow its exemptions for ICWA Applicants to apply not only those attorneys “in good standing in another United States jurisdiction” but also to anyone licensed or permitted to practice in any tribal court.

    Finally, the permissive language in subsection (r) should be replaced with mandatory language that requires the court to grant an ICWA Applicant exemption from the requirements of Rule 14-806 unless the court finds an overwhelmingly persuasive reason not to.

    An amendment to the pro hac vice rule that allows tribes to participate in Utah ICWA proceedings while avoiding prohibitive costs and other hurdles will improve the welfare of Indian children by ensuring that tribes can meaningfully participate in Utah child custody proceedings related to their children.


    Heather Tanana
    Assistant Professor of Law (Research)
    University of Utah – S.J. Quinney College of Law

    Alisa Lee
    Indian Child Welfare Administrator
    Utah Division of Child and Family Services

    Judge William A. Thorne, Jr. (ret.)

    Clifford B. Parkinson
    Lear & Lear, PLLC

    Beth Parker
    Lear & Lear, PLLC

    Angilee Dakic
    Pearson Butler