PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANSEL O. BELUE; JOHNNY LUKE 

LITTLE, as the duly appointed

personal representative of the

Estate of Linda Gail Little; JOEL J.

HILL; JAMES W. LYLE, JR., as the

duly appointed personal

representative of the Estate of

Peggy Jean Reynolds,

Plaintiffs-Appellees,

v.

MARKHAM R. LEVENTHAL; JULIANNA  No. 10-1300 THOMAS MCCABE; IRMA REBOSO

SOLARES,

Appellants,

and

AEGON USA, INCORPORATED;

TRANSAMERICA INSURANCE

COMPANY; LIFE INVESTORS

INSURANCE COMPANY OF AMERICA;

TRANSAMERICA LIFE INSURANCE

COMPANY,

Defendants. 
ANSEL O. BELUE; JOHNNY LUKE 

LITTLE, as the duly appointed

personal representative of the

Estate of Linda Gail Little; JOEL J.

HILL; JAMES W. LYLE, JR., as the

duly appointed personal

representative of the Estate of

Peggy Jean Reynolds,

Plaintiffs-Appellees,

v.

MARKHAM R. LEVENTHAL; JULIANNA  No. 10-1438 THOMAS MCCCABE; IRMA REBOSO

SOLARES,

Appellants,

and

AEGON USA, INCORPORATED;

TRANSAMERICA INSURANCE

COMPANY; LIFE INVESTORS

INSURANCE COMPANY OF AMERICA;

TRANSAMERICA LIFE INSURANCE

COMPANY,

Defendants. 

Appeals from the United States District Court

for the District of South Carolina, at Spartanburg.

G. Ross Anderson, Jr., Senior District Judge.

(7:08-cv-03830-GRA)

Argued: January 25, 2011

Decided: May 13, 2011

2 BELUE v. LEVENTHAL
Before TRAXLER, Chief Judge, and WILKINSON and

GREGORY, Circuit Judges.

Vacated and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Traxler and

Judge Gregory joined.

COUNSEL

ARGUED: Conrad M. Shumadine, WILLCOX & SAVAGE,

PC, Norfolk, Virginia, for Appellants. Andrew Joseph Johnston, Spartanburg, South Carolina, for Appellees. ON

BRIEF: Gary A. Bryant, David A. Kushner, WILLCOX &

SAVAGE, PC, Norfolk, Virginia, for Appellants. Patrick E.

Knie, PATRICK E. KNIE, PA, Spartanburg, South Carolina;

Susan F. Campbell, William E. Hopkins, Jr., HOPKINS &

CAMPBELL, LLP, Columbia, South Carolina; Gary E. Clary,

Central, South Carolina, for Appellees.

OPINION

WILKINSON, Circuit Judge:

Irma Solares, Julianna McCabe, and Markham Leventhal

("the attorneys") appeal an order revoking their pro hac vice

admissions in connection with a putative class action suit. The

suit alleged that the attorneys’ clients breached supplemental

cancer insurance policies that they had issued. The revocation

was based on motions the defense attorneys filed in response

to the plaintiffs’ request for class certification. Chief among

them was the attorneys’ motion to recuse the district judge

based on his comments during an earlier hearing. 

BELUE v. LEVENTHAL 3
The district court’s comments and conduct at that hearing

reflected its strong feelings about the merits of the case before

it, but those feelings simply did not constitute grounds for

recusal. Even though the recusal motion had little merit, we

nonetheless conclude that the district court erred in revoking

the attorneys’ pro hac vice admissions because it did not

afford them even rudimentary process. Accordingly, we

vacate the revocation order of the district court.

I.

In 2007, purchasers of supplemental cancer insurance policies issued and administered by Transamerica Life Insurance

Company and its predecessor, Life Investors Insurance Company, filed a number of class actions alleging that the insurers

had breached the policies. Markham Leventhal, a partner in

the law firm Jorden Burt LLP, served as lead counsel for the

insurance companies in at least 15 of these lawsuits. Julianna

McCabe and Irma Solares, two other Jorden Burt partners,

joined Leventhal in representing Transamerica and Life

Investors.

Three of those lawsuits are germane here. The first is Pipes

v. Life Investors Insurance Company of America, filed in

2007 in the U.S. District Court for the Eastern District of

Arkansas. The parties in that case initially decided to engage

in confidential mediation, and on November 25, 2008, the

Arkansas district court entered an order denying class certification. The parties subsequently negotiated for several months

and ultimately reached a preliminary understanding regarding

the terms of a global class action settlement.

In March 2009, the plaintiffs’ counsel in Pipes filed a second lawsuit in Arkansas circuit court: Runyan v. Transamerica Life Insurance Company. This suit consolidated the claims

of eight plaintiffs in six prior lawsuits pending in Arkansas

and three other states. The parties finalized a class action set4 BELUE v. LEVENTHAL
tlement agreement, filed it with the court, and obtained a preliminary approval on April 23, 2009.

This lawsuit — the third of importance — was filed in

November 2008 in the U.S. District Court for the District of

South Carolina. Like before, the defendants were represented

by Leventhal, McCabe, and Solares ("the attorneys"). Because

none of the attorneys were licensed to practice in South Carolina, they appeared in the district court pro hac vice — meaning that they were admitted to the jurisdiction "temporarily for

the purpose of conducting a particular case." Black’s Law

Dictionary 1331 (9th ed. 2009). Here, Kevin Bell — an attorney admitted to the South Carolina bar — moved to have the

attorneys temporarily admitted to practice in the district court

and then stayed on to assist them as local counsel. 

In May of 2009, the defendants — represented by the attorneys — filed a notice of settlement and a motion to stay classrelated proceedings pending a decision from the Arkansas

court approving the Runyan settlement. According to the

defendants, the Runyan settlement encompassed the South

Carolina claims alleged in the South Carolina lawsuit. The

court scheduled a hearing on that motion for July 13, 2009.

That hearing forms the crux of the dispute in this case. The

court began the hearing by characterizing the Runyan settlement as potentially collusive, stating that it might be one "of

those buddy settlements that we have to watch out for." The

court then took note of the Pipes case, making less than favorable comments about the Arkansas district court and criticizing the defendants’ approach to the litigation. The court also

observed that the settlement on the table was "considerably"

less than a settlement the court had presided over that

involved the same issues.

When McCabe informed the court that the Runyan settlement was actually a national settlement, the court suggested

that the settlement was improper. As a result, the court denied

BELUE v. LEVENTHAL 5
the defendants’ motion to stay the class related proceedings

and instead advised the plaintiffs to quickly file for class certification before the Arkansas court finally approved the

Runyan settlement. 

At the court’s urging, the plaintiffs filed their motion for

class certification the next day (July 14). The plaintiffs argued

that an expedited schedule was proper because the defendants

had already prepared and filed briefs responding to such

motions in the other related cases, and that they had basically

conceded — by agreeing to the Runyan settlement — to treat

the case as a class action. Within 24 hours, the court expedited the class certification proceedings, ordering the defendants to file their opposition to certification by 9:00 AM on

July 21. 

The attorneys filed not one, but three motions on July 21.

First, before 8:00 AM, they filed a motion to exceed the 35-

page limitation imposed by the local rules for their opposition

motion, contending that the briefs they had filed on that topic

in related cases were far longer. Their motion did not reflect

that they had conferred in good faith with the plaintiffs’ lawyers before filing it, even though the local rules mandated

such a conference. Before the 9:00 AM deadline, the court

informed the attorneys’ local counsel that the motion to

exceed the page limitation would be denied. The attorneys

accordingly edited their brief to 35 pages and filed it shortly

after noon instead. 

Next, the attorneys filed an emergency motion to vacate the

expedited scheduling order, to continue the class certification

hearing, and to establish a discovery period to examine the

propriety of class treatment. Finally, and perhaps most importantly, the attorneys moved to recuse the judge pursuant to 28

U.S.C. §§ 144 and 455 on the theory that his comments and

actions at the prior hearing, taken as a whole, displayed prejudice and bias against the defendants. 

6 BELUE v. LEVENTHAL
The court did not respond favorably. At the motions hearing on July 22, the court threatened to disbar the attorneys and

local counsel for making such "serious allegations." The court

also warned that he would "disbar the whole firm in Miami,

Florida" if the attorneys did not appear at a second hearing a

few days later. Not only that, the court expressed frustration

that the defense had "los[t] the case and attack[ed] the judge."

Finally, the court chided plaintiffs’ counsel for failing to

allege the number of plaintiffs involved in the suit, accusing

them of being "highly incompetent in this case from the

beginning." Other than making the comment about the attorneys "attack[ing] the judge," the court did not offer any reason for revoking the attorneys’ pro hac vice status.

The revocation hearing took place a few days later, on July

27. The court began the proceedings by noting that it had

perused the attorneys’ website and discovered that they advertised themselves as specializing in "cases involving difficult

jurisdictions" or "trouble spot jurisdictions." After asking

McCabe to explain that feature of the website, the court elucidated the reasons for convening the hearing. First, the court

observed that it had set a 9:00 AM deadline on July 21 for the

defendants’ response to the plaintiffs’ class certification

motion and that the attorneys had waited until 7:30 AM on the

21st to seek permission to file an overlong brief. Moreover,

the court observed that the attorneys had only filed a brief of

appropriate length after the 9:00 AM deadline had passed. In

the court’s view, the attorneys had also disregarded the local

rules by failing to confer with plaintiffs’ counsel before filing

their motions.

The court also concluded that the attorneys had filed their

motions in bad faith. The court suggested that the defendants’

opposition to class certification here was inconsistent with its

concession in Arkansas that certification of a nationwide class

was proper. What is more, the court found it "ridiculous" that

the attorneys had argued for a stay of class certification proceedings on the theory that their "due process rights ha[d]

BELUE v. LEVENTHAL 7
been violated" given that they had filed some 87 pages of

motions on the subject. Perhaps most importantly, however,

the court concluded that the recusal motion was "inappropriate" because "[n]othing presented in the motion for recusal

demonstrate[d] any alleged bias against the defendants." 

The hearing did not last much longer. The court briefly

questioned McCabe about the value of the settlement. The

court questioned Kevin Bell — the attorneys’ local counsel —

about why he had "put [his] name on" the recusal motion. Bell

discussed his concerns about the judge’s comments at the initial hearing, and the court responded by asking where he got

the notion that "[i]f you don’t win a motion . . . that [is]

grounds for recusal." Finally, the court revoked the attorneys’

pro hac vice status without imposing any sanctions on local

counsel. In closing, the court noted:

I permitted those people to come in as a matter of

grace, a matter of discretion. And now they have

violated it. And I’m not going to let them stay. All

they want to do is file papers, file papers, file papers.

And then run out of this courtroom, go back to

Miami and say, we won another one in a difficult

jurisdiction. That’s the kind of lawyers they are. I

don’t want anything to do with them, or anybody of

that same ilk. I think they are a disgrace to the profession. You can appeal it.

Several months later, the parties to the underlying action

reached a settlement. The lawsuit was thus dismissed on February 11, 2010. On February 22, the attorneys moved to

vacate the revocation order, alleging that the revocation was

unfounded and had caused them to suffer serious professional

and reputational consequences. The court denied the motion,

and the defendants timely appealed.

II.

In order to evaluate whether the district court erred in

revoking the attorneys’ pro hac vice status, we must first ana8 BELUE v. LEVENTHAL
lyze the conduct that led the court to take that admittedly rare

step. 

A.

In the July 27 revocation hearing and in its subsequent

order, the court announced several reasons for deciding to

revoke the attorneys’ pro hac vice status: the attorneys’ failure

to confer with opposing counsel before requesting a page

extension for the class certification response, their failure to

file that response in a timely fashion, the alleged inconsistency between their positions in state and federal court over

the propriety of class action treatment, and their claims that

the scheduling order denied them due process.

However, there is ample basis to think that the principal

reason for the court’s decision was the recusal motion filed by

the attorneys. When the court raised the possibility of revocation during the July 22 hearing, it referred to the fact that the

defendants had tried to "disqualify" the judge, summarizing

their approach as, "[y]ou lose the case and attack the judge."

Moreover, during the revocation hearing, the court characterized the motion in stark terms, calling it "the most inappropriate motion in the world." The court hewed to this approach in

its written order as well, listing the motion as the first grounds

for revocation and stating that it was "inappropriate, dilatory[,] and without a valid basis." The court then went on to

spend several pages explaining why "[n]othing presented in

that motion even remotely demonstrates bias against the

defendants." 

It is true, of course, that the court’s order listed several

bases for revocation and asserted that its decision was based

on the totality of the circumstances. But it seems equally certain that absent the recusal motion, the remaining conduct —

relatively minor violations of local rules and filings containing controversial arguments — would not have caused the

BELUE v. LEVENTHAL 9
judge to take the steps that he did. Therefore, we turn to analyzing the propriety of the recusal motion.

B.

Judicial recusals are governed by a framework of interlocking statutes. Under 28 U.S.C. § 455(a), all "judge[s] of the

United States" have a general duty to "disqualify [themselves]

in any proceeding in which [their] impartiality might reasonably be questioned." In turn, the following subsection, 28

U.S.C. § 455(b), offers a list of other situations requiring

recusal, one of which is where a judge "has a personal bias or

prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C.

§ 455(b)(1). 

Section 455 speaks in the most general of terms. The

Supreme Court’s opinion in Liteky v. United States, 510 U.S.

540 (1993), provides the most complete explanation of these

recusal requirements. In that case, the Court confronted a situation where defendants moved to disqualify the district judge

in their criminal trial based on his comments and actions as

the judge in a prior trial involving one of the same defendants.

In ruling that the judge did not have to recuse himself, the

Court concluded that both § 455(a) and § 455(b)(1) carry an

"extrajudicial source" limitation, id. at 551, 554, under which

bias or prejudice must, as a general matter, stem from "a

source outside the judicial proceeding at hand" in order to disqualify a judge, id. at 545. Put differently, the bias or prejudice must "result in an opinion on the merits [of a case] on

some basis other than what the judge learned from his participation in the case." Id. at 545 n.1 (quoting United States v.

Grinnell Corp., 384 U.S. 563, 583 (1966)).

Of course, the Court was careful to not make the extrajudicial source limitation an ironclad rule. As it went on to

observe, an extrajudicial source of bias is neither sufficient

nor necessary for recusal: it is insufficient because "some

10 BELUE v. LEVENTHAL
opinions acquired outside the context of judicial proceedings

. . . will not suffice," and it is not always necessary because

"predispositions developed during the course of a trial will

sometimes (albeit rarely) suffice." Id. at 554. Nevertheless,

the Court did make clear that parties would have to meet a

high bar to achieve recusal based on in-trial predispositions.

As the Court explained, judicial rulings and "opinions formed

by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings" almost "never constitute a valid basis for a bias or

partiality motion." Id. at 555. Likewise, judicial remarks that

are "critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or partiality challenge." Id.

Thus the only cases where courts have granted recusal

motions based on in-trial conduct tend to involve singular and

startling facts. In Liteky, the Court provided an example of

such conduct: the district judge’s remark in an espionage case

against German-American defendants that "‘[o]ne must have

a very judicial mind, indeed, not [to be] prejudiced against the

German Americans’ because their ‘hearts are reeking with

disloyalty.’" Id. at 555 (quoting Berger v. United States, 255

U.S. 22, 28 (1921)). With this example in mind, courts have

only granted recusal motions in cases involving particularly

egregious conduct. Thus, in United States v. Antar, 53 F.3d

568 (3d Cir. 1995), the Third Circuit concluded that the

defendants in a criminal case should have received a new trial

in a situation where the judge made clear that his "object in

th[e] case from day one" had been to recover funds that the

defendants had taken from the public. Antar, 53 F.3d at 573.

Recusal would have been proper there because "the district

judge, in stark, plain and unambiguous language, told the parties that his goal in the criminal case, from the beginning, was

something other than what it should have been and, indeed,

was improper." Id. at 576. Likewise, in Sentis Group, Inc. v.

Shell Oil Co., 559 F.3d 888 (8th Cir. 2009), the court of

appeals concluded that recusal would have been appropriate

BELUE v. LEVENTHAL 11
(and thus reassigned the case on remand) under § 455(a)

where the judge "directed profanities at Plaintiffs or Plaintiffs’ counsel over fifteen times" and refused to allow the

plaintiffs to present argument at the sanctions hearing. Sentis

Group, 559 F.3d at 904-05. Similar examples are, thankfully,

not easy to find.

The high bar set by Liteky for predispositional recusals

makes good sense. If it were otherwise — if strong views on

a matter were disqualifying — then a judge would hardly

have the freedom to be a judge. Indeed, the Court went on to

note that "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what

imperfect men and women, even after having been confirmed

as federal judges, sometimes display," are generally insufficient to support a recusal motion. Liteky, 510 U.S. at 555-56.

"A judge’s ordinary efforts at courtroom administration —

even a stern and short-tempered judge’s ordinary efforts at

courtroom administration — remain immune." Id. at 556; see

also LoCascio v. United States, 473 F.3d 493, 495-96 (2d Cir.

2007). This is not to say judicial distemper is somehow admirable. It is not. But the alternative of purging through recusal

motions all those with strong or strongly stated beliefs not

only threatens limitless gamesmanship but the fearless administration of justice itself.

Taking note of Liteky’s high bar for recusal, other courts

have generally declined to grant recusal motions based on intrial "predispositions" — especially when they involve

alleged bias or prejudice against the attorneys rather than the

parties. For example, in In re Beard, 811 F.2d 818 (4th Cir.

1987), this court held that "[b]ias against an attorney is not

enough to require disqualification under § 455 unless petitioners can show that such a controversy would demonstrate a

bias against the party itself." Beard, 811 F.2d at 830. This

approach makes good sense as well: insofar as § 455(b)(1)

requires recusal whenever a judge "has a personal bias or

prejudice concerning a party," 28 U.S.C. § 455(b)(1) (empha12 BELUE v. LEVENTHAL
sis added), recusal should only be required when bias against

an attorney is "of a continuing and personal nature" and rises

to the level of "demonstrat[ing] a bias against the party itself."

Beard, 811 F.2d at 830. 

Hence, in Beard, the court declined to conclude that recusal

was required where the judge allegedly used profanities to

refer to counsel, on the theory that the conduct was limited in

nature and did not reflect any bias against the parties. Id.

Other courts have followed suit. See, e.g., In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1316 (2d Cir. 1988) (concluding that recusal was not required where judge criticized

attorneys and observing that "[a]n appellate court, in passing

on questions of disqualification . . . determines the disqualification on the basis of conduct which shows bias or prejudice

or lack of impartiality by focusing on a party, not on counsel"); In re Cooper, 821 F.2d 833, 843-44 (1st Cir. 1987)

(concluding that recusal was not necessary where judge told

one of the litigants that he "has no credibility" and "may be

a fit candidate for a perjury indictment"). 

The upshot of these cases is clear: while recusal motions

serve as an important safeguard against truly egregious conduct, they cannot become a form of brushback pitch for litigants to hurl at judges who do not rule in their favor. If we

were to "encourage strategic moves by a disgruntled party to

remove a judge whose rulings the party dislikes," In re United

States, 441 F.3d 44, 67 (1st Cir. 2006), we would make litigation even more time-consuming and costly than it is and do

lasting damage to the independence and impartiality of the

judiciary. In other words, recusal decisions "reflect not only

the need to secure public confidence through proceedings that

appear impartial, but also the need to prevent parties from too

easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps

to obtain a judge more to their liking." Id. (quoting In re

Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989)).

BELUE v. LEVENTHAL 13
C.

These principles make it quite difficult to present any convincing case for the recusal motion that the attorneys filed

below. The attorneys cited four specific reasons for recusal:

the district court’s expressions of skepticism about the

Runyan state court settlement, its comparisons of the Runyan

settlement to a prior settlement the court had presided over,

its decision to "coach" the plaintiffs’ counsel, and its comments about another district judge in Arkansas. But none of

these asserted rationales provides a basis for the drastic remedy of recusal.

For starters, three of those four reasons represent nothing

more sinister than the court’s strong views about the merits of

the case and about how to best handle it. Take, for example,

the attorneys’ assertion that the court "wrongly prejudged" the

case by comparing the settlement here to the settlement in a

related class action. Whether or not the cases are similar, the

mere fact of drawing a comparison does not prove that the

judge had a result in mind prior to starting the trial. See

Liteky, 510 U.S. at 555 ("[O]pinions formed by the judge on

the basis of facts introduced or events occurring in the course

of the current proceedings, or of prior proceedings[ ] do not

constitute a basis for a bias or partiality motion unless they

display a deep-seated favoritism or antagonism that would

make fair judgment impossible."). Likewise, the court’s

description of the Runyan settlement as a "buddy settlement[ ]" and suggestion that the "whole thing smells" may

have been strongly worded, but did not establish that the

judge had a "preconceived bias," as the recusal motion

alleged. Id. ("[J]udicial remarks during the course of a trial

that are critical or disapproving of, or even hostile to, counsel,

the parties, or their cases, ordinarily do not support a bias or

partiality challenge.") 

Finally, the court’s decision to expedite the class certification proceedings — both by encouraging plaintiffs’ counsel to

14 BELUE v. LEVENTHAL
file their motion and by requiring a quick turnaround on the

defendants’ response — need not be viewed as "affirmative

bias in favor of Plaintiffs" so much as "[a] judge’s ordinary

efforts at courtroom administration — even a stern and shorttempered judge’s ordinary efforts at courtroom administration." Id. at 556. And while the plaintiffs urge us to place the

worst possible gloss on each of the court’s actions, that is not

an approach the law allows us to take. Recusals are not — and

cannot — be taken so lightly.

The sole remaining basis for recusal, then, is the court’s

less-than-favorable remarks about the district judge presiding

over the Pipes case in the Eastern District of Arkansas — a

related lawsuit that was folded into the Runyan settlement.

These remarks were neither wise nor temperate. They should

not have been made. But they, too, did not rise to the level of

recusable conduct. The remarks were directed at a different

judge who had little to do with the case at hand. Thus, while

we would never suggest that the judge’s remarks were wellconsidered, neither did they go to the court’s integrity or provide any basis for believing that the court’s "impartiality

might reasonably be questioned," 28 U.S.C. § 455(a), or that

the court "ha[d] a personal bias or prejudice concerning a

party, or personal knowledge of disputed evidentiary facts

concerning the proceeding," 28 U.S.C. § 455(b)(1).

Litigation is often a contentious business, and tempers

often flare. But to argue that judges must desist from forming

strong views about a case is to blink the reality that judicial

decisions inescapably require judgment. Dissatisfaction with

a judge’s views on the merits of a case may present ample

grounds for appeal, but it rarely — if ever — presents a basis

for recusal. See Liteky, 510 U.S. at 555 ("[J]udicial rulings

alone almost never constitute a valid basis for a bias or partiality motion."). 

On this latter score, the recusal motion was decidedly ill

founded. To sum up, the Supreme Court’s decision in Liteky

BELUE v. LEVENTHAL 15
seems to us the best and most comprehensive explanation of

§ 455(b), and motions for predispositional recusals that are so

at odds with that decision run the risk of sanctionable conduct. No appellate court can afford to leave trial judges prey

to a slew of groundless calls for recusal from litigants whose

major objection to those judges appears to be a perceived disagreement with them. Appellate courts must remain cognizant

that trial judges make some of the most difficult calls on some

of the most volatile matters in our system. Those judges are

singularly exposed to the displeasure of counsel and litigants

alike, and the motion in this case cannot become a contagion

that is permitted to spread.

III.

Our conclusion that the recusal motion lacked merit does

not resolve this case, however, for we must also analyze

whether the attorneys received adequate process before their

pro hac vice status was rescinded.

A.

When the court first raised the possibility of pro hac vice

revocation, it did not offer any specific basis for its decision.

Instead, it threatened to disbar the attorneys (and their local

counsel) for making "serious allegations," voiced its frustration at the attorneys for "los[ing] the case and attack[ing] the

judge," and scheduled a hearing on the matter. It was only at

the July 27 hearing that the court listed its reasons for believing revocation was appropriate. Even then, however, the court

did not allow the attorneys much of an opportunity to

respond: after a brief back-and-forth with McCabe about the

value of the Runyan settlement and a short discussion with the

attorneys’ local counsel, the court decided to revoke the attorneys’ right to practice.

The judge’s own comments about revocation hint at what

may have driven him to act with such haste. After making his

16 BELUE v. LEVENTHAL
decision, the court observed: "I permitted those people to

come in as a matter of grace, a matter of discretion. And now

they have violated it. And I’m not going to let them stay."

(emphasis added). On its view, when courts allow attorneys

to practice pro hac vice, they do so as a matter of pure benevolence, meaning they can revoke the right to practice at any

time. 

The principal problem with this view, however, is that it

has been widely rejected. While pro hac vice status was "at

one time . . . considered to be granted and held at the grace

of the court," such an approach does not accord with the modern practice of law. Johnson v. Trueblood, 629 F.2d 302, 303

(3d Cir. 1980). The legal profession has become a national

one, and justice in any true sense must transcend the parochial. If pro hac vice attorneys become subject to uniquely

preemptory dismissals, then federal courts will be lesser bulwarks against local favoritisms, and less able to perform the

national task that has been theirs since Article III originally

assigned it. "[I]n this era of interstate practice," especially,

notions of judicial grace thus "cannot be applied too literally

or strictly." Id. In recognition of this modern reality, as well

as the fact that pro hac vice attorneys are "held to the same

professional responsibilities and ethical standards as regular

counsel," courts have increasingly proved willing to conclude

that pro hac vice attorneys should not be disqualified "under

standards and procedures any different or more stringent than

those imposed upon regular members of the district court

bar." Cole v. U. S. Dist. Ct. for the Dist. of Idaho, 366 F.3d

813, 821 (9th Cir. 2004) (quoting United States v. Collins,

920 F.2d 619, 626 (10th Cir. 1990)). 

Thus, while it may be true that no attorney has a due process right to pro hac vice status, see Leis v. Flynt, 439 U.S.

438 (1979) (per curiam), once such status is granted, attorneys

must receive some modicum of due process before it is

revoked. See, e.g., Lasar v. Ford Motor Co., 399 F.3d 1101,

1109-10, 1113 (9th Cir. 2005) ("[N]otice and an opportunity

BELUE v. LEVENTHAL 17
to be heard are indispensable prerequisites for the types of

sanctions imposed by the district court," which included pro

hac vice revocation); Martens v. Thomann, 273 F.3d 159, 175

(2d Cir. 2001) ("[R]evocation of pro hac vice status is a form

of sanction that cannot be imposed without notice and an

opportunity to be heard."); Kirkland v. Nat’l Mortgage Network, Inc., 884 F.2d 1367, 1371 (11th Cir. 1989) ("[A]n attorney, once admitted pro hac vice, enjoys . . . basic procedural

rights."); Johnson, 629 F.2d at 303 ("[W]e believe that some

type of notice and an opportunity to respond are necessary

when a district court seeks to revoke an attorney’s pro hac

vice status."). In view of the fact that we have concluded that

due process protections apply in somewhat analogous contexts, we agree that some modicum of due process should

attach to pro hac vice revocation. See Hathcock v. Navistar

Int’l Transp. Corp., 53 F.3d 36, 42 (4th Cir. 1995) ("[A] Rule

37 fine is effectively a criminal contempt sanction, requiring

notice and the opportunity to be heard."). 

Of course, the amount of process required is hardly onerous. While courts are generally in agreement that pro hac vice

attorneys must receive notice of the specific grounds for revocation and a meaningful opportunity to respond, none have

been willing to extend due process protections beyond those

baselines. Indeed, the specific contours of such process are

often left to the district court’s discretion. For example, courts

have left "the form of the notice to the discretion of the district court" so long as the attorney receives notice of "the conduct of the attorney that is the subject of the inquiry, and the

specific reason this conduct may justify revocation." See

Johnson, 629 F.2d at 304. With respect to the opportunity to

respond, it is likewise preferable to accord the district court

wide discretion in tailoring the appropriate level of process.

See id. ("All that we will mandate is that the attorney be given

a meaningful opportunity to respond to identified charges. Of

course in certain cases a full hearing might be desirable, but

we leave that to the discretion of the district court.").

18 BELUE v. LEVENTHAL
This approach embodies an appropriate sense of balance.

On the one hand, it is crucial to ensure that pro hac vice attorneys are not the victims of whimsical revocations or discriminatory treatment. For "some sort of procedural requirement

serves a number of salutary purposes. It ensures that the attorney’s reputation and livelihood are not unnecessarily damaged, protects the client’s interest, and promotes more of an

appearance of regularity in the court’s processes." Id. at 303.

At the same time, it is essential to prevent revocation proceedings from burdening the courts with excessive process.

Discretion must therefore play a role, so long as the court satisfies the minimal requirements of an individualized notice of

the basis for revocation and a meaningful opportunity to

respond. To require much beyond that begins to erode the trial

court’s authority over those who appear before it. In granting

counsel admission, the court was still obligated to supervise

the attorneys’ conduct, so long as in doing so, it did not violate due process. For the national character of the federal judiciary must rest in the end upon a foundation of nationwide

respect for local federal district tribunals.

B.

In determining whether the rudiments of process were provided here, it is best to look at the proceedings in their

entirety. For due process at bottom embodies a basic sense of

fairness, which can best be gauged by viewing all the relevant

circumstances. Looking at the record as a whole, we cannot

conclude that the district court satisfied the basic requirements

of due process. For starters, the notice given here was certainly wanting. When the court first raised the possibility of

revocation, it did not provide an appropriate list of reasons for

considering that result. In fact, at the July 22 hearing, the

court merely raised the possibility of revoking both the attorneys’ and their local counsel’s right to practice and then

scheduled a hearing for July 27. The closest the court came

to providing a basis for its actions was its sweeping expresBELUE v. LEVENTHAL 19
sion of frustration at counsel for "los[ing] the case and attack-

[ing] the judge." Even in the notice for the July 27 hearing,

the court provided no indication of the specific behavior that

would be discussed. And at no point did the judge ever mention that the local rules violations might have anything to do

with his decision. It was only at the July 27 hearing that the

court first set forth its bill of particulars against the attorneys

— notice that came too late in the game.

That lack of notice in turn worked to deny the attorneys a

meaningful opportunity to be heard. At the July 22 hearing,

neither Solares nor McCabe was present. And while Leventhal did attend, he was only allowed to make a few short statements to the court:

THE COURT: All right, did you have anything to do

with signing all these papers and filing them about

ten or twelve hours before court?

MR. LEVENTHAL: Are you referring —-

THE COURT: Yes or no. Yes or no.

MR. LEVENTHAL: I would say yes, Your Honor.

THE COURT: All right, then you will be in the

group, too, to be disbarred, or your admission to

practice before this court will be eliminated.

At no point was Leventhal allowed to explain his conduct or

his involvement in the case. Indeed, between July 22 and July

27, the attorneys were left in the dark, unable to do more than

guess about the possible reasons for revocation. Nor did the

court cure this flaw by allowing the attorneys to mount a thorough defense at the hearing. To the contrary, the court essentially prevented them from speaking, questioning McCabe

about her law firm website profile and both her and Leventhal

20 BELUE v. LEVENTHAL
about the value of the Runyan settlement before summarily

revoking all three of the attorneys’ pro hac vice status.

Finally, the judge failed to conduct any individualized

inquiry or analysis at the revocation hearing. See Johnson,

629 F.2d at 304 (requiring courts to provide specific notice of

potentially sanctionable conduct). The record establishes that

the three attorneys had disparate levels of involvement with

the actions that incensed the court. Solares, for example, participated only in the discovery proceedings and had no

involvement with either the recusal motion or the motion to

stay class proceedings, although she did sign them. McCabe

worked on the stay motion and signed both it and the recusal

motion, but claims to have only reviewed and performed

some research for the latter filing. Leventhal, by contrast, was

heavily involved in drafting the recusal motion. Yet the court

did not question the attorneys about their relative levels of

involvement at all, nor did it once refer to them individually.

And it is no answer to claim that the court did not have these

facts in front of it at the initial hearing; when filing their

motion to vacate the revocation, the attorneys provided declarations summarizing their conduct, but the court did not

change its earlier order. On several instances, then, the court

adopted a shotgun approach rather than the scalpel more

suited to the situation.

Taken separately, it is doubtful that each of these flaws

would be sufficient to condemn the revocation proceedings.

After all, the level of process attaching to something as fleeting as pro hac vice status is both flexible and modest. But

taken together, the net effect of the procedural flaws was to

deny the attorneys any opportunity to present a meaningful

response to the court’s concerns.

C.

The plaintiffs offer several responses to the defense attorneys’ due process claim, but none are convincing. First, the

BELUE v. LEVENTHAL 21
plaintiffs argue that by mentioning the possibility of revocation at the July 22 hearing, the court gave the defense attorneys adequate notice. But giving notice that revocation is on

the table does not give the parties a meaningful opportunity

to prepare a response any more than telling a defendant he

might be criminally prosecuted gives him an opportunity to

prepare a defense to the specific charges that may be filed

against him. The level of notice required may be flexible, but

it does not stretch quite so far as to require such guesswork

by attorneys subject to a sanction that may cause severe harm

to their professional reputations. 

Next, the plaintiffs argue that the attorneys did not suffer

from a denial of due process because they did not claim such

a denial at the sanctions hearing. It is true that after the court

informed the attorneys of its possible grounds for revocation,

the attorneys’ local counsel’s immediate responses were to

apologize and then ask for the judge to convene a three-judge

panel to hear the matter. But what the attorneys did when first

confronted with the arguments against their conduct does not

prove that the process they received was sufficient. After all,

faced with an undeniably disapproving bench, an apology was

certainly a reasonable reaction. And the fact that the attorneys’ sole other response was to ask for a procedural protection that they believed was generally available in revocation

proceedings only highlights the degree to which they were left

in the dark about the basis of the court’s position. In other

words, absent notice of the grounds for revocation, it was no

doubt difficult to come up with a more substantive response.

In sum, while the law did not guarantee the attorneys extensive process, the court failed to give them the bare minimum.

On that score, one fact is particularly illustrative: at oral argument, the plaintiffs candidly conceded that it would be "intellectually dishonest" to claim that Solares had much to do with

the filings at issue and that the court had erred in sanctioning

her. But before the district court, Solares hardly had a chance

to make her case. This is not to say that the court would nec22 BELUE v. LEVENTHAL
essarily have been persuaded. Solares signed the recusal

motion, and attorneys are fully responsible for the documents

they sign. But part of the purpose of due process is — like

allocution — to give even those who may have taken a wrong

turn a chance to explain the circumstances or to express whatever level of contrition that reflection upon those circumstances makes appropriate. Here, it is difficult to see how the

court gave the attorneys the proper level of individualized

consideration, let alone much else.

IV.

None of this is to suggest that either party to this whole

affair conducted itself nobly. The attorneys filed a baseless

recusal motion seemingly driven by a fear of losing on the

merits — conduct that is unbecoming of members of a distinguished profession. For its part, the district court offered comments that contributed little to a decorous courtroom

atmosphere and committed an error of its own in revoking the

attorneys’ admissions without affording them even the minimal process that the law requires. While our normal ruling

might be to remand the case with directions for the provision

of appropriate process, we can see little to be gained by such

a course. The case has now been resolved, and we therefore

vacate the revocation order and remand the case with directions that the matter be concluded forthwith.

VACATED AND REMANDED

BELUE v. LEVENTHAL 23