Judge denies ‘do-over’ to attorney rejected for pro hac vice admission

In brief

• Judge denied a second attempt by attorney from national personal injury firm Morgan & Morgan to gain pro hac vice admission in the Harvard morgue litigation.
• The court found the attorney’s explanations for prior filing deficiencies reflected a continuing pattern of inattention and carelessness.
• The attorney previously faced scrutiny after fake AI-generated case citations were filed in Wyoming litigation under his supervision.
• The ruling leaves plaintiffs represented by other attorneys and does not affect the underlying claims against Harvard, a firm spokesperson says.

Late in the film “The Natural,” aging baseball star Roy Hobbs laments that “[s]ome mistakes, I guess we never stop paying for.”

T. Michael Morgan may now know the feeling, after a Superior Court judge once again denied his bid to join the legal team representing families suing Harvard over the alleged mistreatment of their loved ones’ donated remains.

As previously reported, Judge Kenneth W. Salinger on May 18 denied Morgan’s motion to appear pro hac vice, in part because he was not satisfied with Morgan’s disclosure of a sanction he had received from a Wyoming judge after failing to detect that an associate had included eight “fake, AI-hallucinated case citations” in filings, which Salinger considered to be a “serious ethical transgression.”

In Salinger’s estimation, Morgan “made no attempt in his pro hac vice motion to show that he had changed his practice to comply with his obligation to review any papers filed in court over his signature, or that he has taken any steps to ensure that he and his law firm do not file motions or legal memorandum citing nonexistent case law in the future.”

There were also technical flaws with Morgan’s motion — he had filed his pro hac vice motion on his own behalf, which Salinger considered practicing law in Massachusetts without permission, and his motion referenced an incorrect amount in his certification that he had paid the required, non-refundable fee to the Board of Bar Overseers before pro hac vice admission was sought on his behalf.

Rather than allow a phalanx of other attorneys — including his Boston-based Morgan & Morgan colleague Ryan D. Lang — to represent the plaintiffs, Morgan recently tried again to gain Salinger’s blessing to appear in the case.

It did not go well.

The plaintiffs’ new local counsel, Meredith G. Fierro and Mary Lemay, of Butters Brazilian in Boston, filed the motion under Mass. R. Civ. P. 60(b) to allow Morgan to withdraw his prior motion for admission pro hac vice and to permit plaintiffs to file a new pro hac vice motion attempting to address the issues that Salinger had identified.

“In other words, Attorney Morgan, acting through Plaintiffs’ new local counsel, wants the Court to make his prior motion and the Court’s prior decision disappear, and to act on a new pro hac vice motion as if Morgan’s previous motion never existed,” Salinger wrote in his June 10 decision denying the motion.

The plaintiffs argued that the court should vacate its prior order pursuant to Rule 60(b)(1) because the previously identified “deficiencies” had been the result of “mistake, inadvertence, or excusable neglect.”

Alternatively, the plaintiffs argued that the court could grant such relief pursuant to Rule 60(b)(6) “in the interest of substantial justice.”

“Plaintiffs do not contend that they will be at all prejudiced if Attorney Morgan is not permitted to appear in this case alongside the five other lawyers who have already entered their appearance for the plaintiffs,” Salinger noted.

In support of the motion, Morgan offered an affidavit, in which he tried to explain what Salinger characterized as “troubling missteps” with his previous pro hac vice motion.

With respect to not laying out the remedial steps he and his firm had taken after the Wyoming “debacle” (Salinger’s word), Morgan figured that attaching a copy of the Wyoming judge’s decision would suffice, particularly where his pro hac vice motion was unopposed and the Wyoming judge declined to revoke his pro hac vice admission there.

It did not occur to him that it might not be correct for him to serve as the movant because that is how the pro hac vice process works in Florida, Morgan continued.

As for certifying that he had paid $100 instead of $355, he had in fact paid the correct amount, Morgan explained. But the incorrect number had been mistakenly copied from another pro hac vice motion granted by another Superior Court judge in the Harvard morgue litigation.

But to Salinger, the plaintiffs and Morgan had not demonstrated that he had abused his discretion in denying Morgan’s motion seeking pro hac vice admission or that there were any extraordinary circumstances that would justify granting the plaintiffs’ requested relief.

Instead, Morgan’s explanations “describe a continuing pattern of inexcusable inattention,” in Salinger’s estimation.

“Attorney Morgan’s explanation that it never occurred to him to explain what steps he has taken to ensure that he never again files documents in court containing fake case citations describes nothing more than garden-variety oversight and inattention. It is not excusable mistake, inadvertence, or neglect,” Salinger wrote.

The judge continued: “The same is true of Morgan’s explanation that he never gave any thought to whether it would be appropriate under Massachusetts law to file a pro hac vice motion on his own behalf, and his lack of explanation for why he failed to certify paying the correct fee if in fact he had done so. Admitted carelessness and inattention are not grounds for relief under Rule 60(b)(1).”

As for the argument under Rule 60(b)(6), Morgan argued in his new affidavit that Salinger’s prior order should be vacated “due to the serious and lasting harm that it will cause to my career and reputation.”

Given his national trial practice, Morgan wrote that the fact that Salinger’s decision is reportable in other jurisdictions and has been published on Westlaw and LexisNexis “could trigger a domino effect, resulting in the denial of my pro hac vice admission in courts across the country.”

But Salinger was unmoved.

“This is a forthright explanation of Morgan’s motivation in seeking a do-over, and for asking the Court to make its prior decision disappear,” Salinger wrote. “But the potential collateral consequences of inattention and carelessness in filing an improper and unpersuasive pro hac vice motion do not provide a sufficient reason to grant relief under Rule 60(b)(6).”

In response to a request for comment, a Morgan & Morgan spokesperson says the plaintiffs are finally ready to move forward without the member of the firm’s first family.

“This is a procedural ruling that does not affect the underlying case,” the spokesperson writes in an emailed statement. “Our attorneys are committed to getting justice for the families impacted by these events and bringing closure to them.”