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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

KEVIN RYAN,

) ) Plaintiff, ) ) v. ) Cause No. 1:06-cv-1770-JDT-TAB ) Judge John D. Tinder ) Magistrate Judge Tim A. Baker ) UNDERWRITERS LABORATORIES, INC. ) ) Defendant. )

ATTORNEY MICK HARRISON'S RESPONSE TO ORDER TO SHOW CAUSE Pursuant to the Court's Order to Show Cause, the undersigned hereby responds to the Court's Order. For the reasons stated herein, this Court should determine that counsel Harrison's delay in filing his pro hac vice motion, given that two other counsel for plaintiff were admitted, was not a violation of the rules, although not good practice, and that counsel Harrison's violation of the electronic filing local rule, L.R. 5.11, was inadvertent and not in bad faith. Consequently, no sanction is required to deter future violations. In support of this response, counsel offers the following statement of facts and argument, with reference to applicable authorities. STATEMENT OF FACTS Plaintiff Kevin Ryan asked counsel Harrison to represent him in this litigation based on counsel Harrison’s extensive experience in whistleblower and employment litigation and counsel's willingness to represent Plaintiff Ryan on a contingency/reduced 1

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fee basis. Plaintiff Ryan is a private citizen of modest means who brings this action not only to vindicate his own rights and interests but to vindicate Indiana public policy and the public interest as well. Undersigned counsel, Mick G. Harrison, Esq., has a local office at the new Caldwell Environmental Center, 323 S. Walnut, Bloomington, IN 47401, phone: 812323-7274, fax: 859-986-2695, E-mail:[email protected]. Counsel Harrison is a member in good standing of the bar of the State of Pennsylvania (Pennsylvania Supreme Court), bar number 65002, admitted 1992. Counsel Harrison received his Juris Doctor degree from the District of Columbia School of Law in 1991, graduating summa cum laude. Counsel Harrison was a member of the law review, lead on the D.C.S.L. team for the Jessup International moot court competition, and one of two students who received the Dean’s cup twice for distinguished service to the law school. Since law school, counsel Harrison has been dedicated to public service and serving the public interest by representing clients, often who have an inability to pay attorney fees, whose cases raise important public interest issues. As a consequence, Counsel Harrison has developed a national law practice, representing largely non-profit organizations and citizen groups. Counsel Harrison currently has clients in litigation in Indiana, Kentucky, Utah, Oregon, New Mexico, Maryland, and Alabama. Organizations that Counsel Harrison has represented include the Indiana Forest Alliance, Protect Our Woods, Vietnam Veterans of America Foundation, the Vietnam Veterans of America, Arkansas State Chapter, the National Sierra Club, the Chemical Weapons Working Group, the Audubon Naturalist Society of 2

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the Central Atlantic States, the Arkansas Peace Center, and Greenpeace. Counsel Harrison was previously a staff attorney for the Government Accountability Project located in Washington, D.C., a nationally known non-profit organization, and in that capacity represented a number of high level government and corporate whistleblowers who disclosed waste, fraud and abuse in government and industry and suffered retaliation as a result. Two of these clients have appeared on the CBS news program Sixty Minutes. More recently Counsel Harrison has represented several high level whistleblowers in association with the national not-for- profit Public Employees for Environmental Responsibility (PEER) including Ms. Teresa Chambers, former Chief of the United States Park Police. Counsel Harrison has been fully admitted to the U.S. Courts of Appeals for the Third Circuit (admitted 1996), Fourth Circuit (admitted 1994), Sixth Circuit (admitted 1993), Seventh Circuit (admitted 1997), Eighth Circuit (admitted 1993), Tenth Circuit (admitted 1996), Eleventh Circuit (admitted 2005), and Federal Circuit (admitted 2007), without any restriction on Counsel’s eligibility to practice, and remains in good standing with each of these courts. Counsel Harrison also appears before the United States Merit Systems Protection Board (MSPB) and the United States Department of Labor in environmental and federal employee whistleblower cases. As a result of this national practice on behalf of non-profit organizations, whistleblowers, and citizen groups, Counsel Harrison has had occasion to be admitted pro hac vice in a number of United States District Courts as noted in counsel's pro hac vice motion. Counsel remains in good standing in all courts to which he is currently admitted and was in good standing at all times during his admission to those courts in 3

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which he is not currently active. For purposes of this case, Counsel Harrison has associated with local counsel Rudolph Savich, a member in good standing of the Indiana Bar (Bar No. 1582-53), who has appeared in this matter, as well as local counsel Kara Reagan, who has also appeared. Plaintiff Ryan requires lead counsel who is experienced and knowledgeable in the areas of employment law generally and whistleblower litigation specifically, and who is able and willing to represent Plaintiff on a contingency/reduced fee basis. Whistleblower law is complex, and this case involves some unusual issues and possibly one or more issues of first impression. Counsel Harrison, who is an experienced whistleblower attorney agreed to represent Mr. Ryan with co-counsel on a contingency/reduced fee basis. Counsel Harrison does a substantial amount of pro bono work and in almost every other case works at public interest discounted rates in an effort to serve under-represented populations and to serve the public interest. Had it not been for the public import of Mr. Ryan's case, and the likelihood that his case would not have been heard at all absent counsel Harrison agreeing to represent him, counsel Harrison, due to an already burdensome caseload, would not have taken on this case at all. As noted in counsel's motion for admission pro hac vice, Counsel Harrison over the past 16 years has maintained at different times offices in Washington, D.C., with the Government Accountability Project, in Kentucky, with the Kentucky Environmental Foundation (KEF), and in Pennsylvania with GreenWatch, Inc. Counsel Harrison's professional plan and intent has been to maintain a national public interest law practice based out of either Washington, D.C., Pennsylvania, or Kentucky. The public interest cases in counsel's practice are often demanding, often against the government and large 4

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corporations. This necessitates some support staff to avoid overburdening counsel. Counsel Harrison had some support staff during his years of being associated with the Government Accountability Project (GAP) in Washington, D.C., the Kentucky Environmental Foundation in Kentucky, and GreenWatch, in Pennsylvania. Over the past approximately three years Counsel Harrison has been called upon to be physically present in Indiana more than planned due to serious illnesses that have afflicted three members of Counsel Harrison's family (two of Counsel's brothers and Counsel's mother). Counsel would prefer to protect the privacy of his family members by not going into detail regarding their illnesses other than to say that Counsel's mother passed away from cancer during this period and absent Counsel Harrison's intervention to assist the two brothers their physical and economic conditions would have been severely impaired. Counsel Harrison is originally from Indiana and, as a consequence of the just referenced circumstances, is currently a resident of Bloomington. Counsel Harrison has been attempting to assist his family members on an on-going basis by spending more time in Indiana without abandoning his national practice and his original plans for that practice. This year, Counsel Harrison has come to terms with the reality that it is not likely to be possible for Counsel Harrison to maintain a primarily out-of-state practice involving extensive travel while continuing to assist Counsel's family, who are all located in Indiana. Consequently, Counsel Harrison had decided, and had discussed his decision with local counsel Rudolph Savich, to pursue active long term residence in Indiana and admission to the Indiana Bar and the Bar of the Southern District of Indiana as part of an effort to reduce the currently unsustainable time and financial burden on counsel 5

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Harrison that has resulted from the above described circumstances. Counsel Harrison had hoped that a trial victory in a 12-week trial whistleblower case that resulted in an award of several hundred thousand dollars in attorney fees to Counsel Harrison by the trial administrative judge would have helped Counsel deal with these burdens and make an orderly transition from his national practice to an Indiana based regional practice. Unfortunately, that case was reversed unexpectedly on appeal. Counsel Harrison has a reputation for high standards of ethical conduct over his 16 years of practice. Counsel has never been suspended, disbarred or resigned as a result of a disciplinary charge, investigation or proceeding from the practice of law in any jurisdiction. No disciplinary proceeding is currently pending against Counsel Harrison in any jurisdiction. Counsel Harrison is perfectly willing to strictly comply with any expectations of this Court, and all of the applicable federal and local rules, including the rules of professional responsibility that govern ethics and conduct for attorneys. Counsel Harrison would not, and did not, intentionally violate any applicable rule or order of this Court. Counsel does admit he misread L.R. 5.11 and sincerely apologizes for any inconvenience this may have caused the Court or the Clerk. Counsel Harrison further apologizes for his delay in filing his motion for admission pro hac vice in this matter. Counsel Harrison had intended to file for pro hac vice admission shortly after the removal of the case to federal court by Defendant. Counsel's other case obligations, including a federal Court of Appeals brief and a petition to the Supreme Court of the United States, among numerous other public interest case demands, along with the ongoing need to assist Counsel's family in a time of medical and financial hardship, caused Counsel to delay this pro hac vice filing in reliance on the 6

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capable assistance of his local co-counsel Mr. Savich and Ms. Reagan. Counsel Harrison understands that it is necessary to file promptly for pro hac vice admission when an outof-jurisdiction counsel is the sole representative for a party. However, counsel Harrison was operating on the understanding that, while it is good practice to promptly file for pro hac vice admission when co-counsel have already been admitted, there was no time constraint on counsel's filing of a motion for pro hac vice admission, similar to filing an appearance as additional counsel, as long as the other admitted co-counsel directed and approved any work done by out-of-jurisdiction counsel in a paralegal capacity prior to the pro hac vice motion being filed and granted. Counsel Harrison has been unable to locate any legal authority in the rules or case law that would set a deadline for filing such a motion for pro hac vice admission where co-counsel have been admitted. Counsel Harrison acknowledges that he did make filings in this matter electronically on two occasions, February 5, 2007 and May 14, 2007, under his own name. Counsel Harrison thought at the time that it was proper to do so in a paralegal capacity in light of his co-counsel being admitted and having approved the submission, and in light of Counsel Harrison having been registered to make electronic filings in the Southern District. Counsel was at the time, admittedly in error, thinking that the "/s" by counsel's name in the signature block of the filing was the key for the court determining the identity of the signing counsel. Upon a review of the applicable local rule regarding electronic filing, L.R. 5.11, it is clear that the Court treats the user name and password used to make the filing also as part of the "signature." Had counsel Harrison realized this at the time, he would not have made those filings but counsel Savich would have done so or counsel Harrison would have done so in a paralegal capacity on counsel Savich's 7

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direction using counsel Savich's username and password with permission. Counsel acknowledges that if out-of-jurisdiction counsel intends to function as an attorney on behalf of a party, even with co-counsel, then the pro hac vice motion must be filed promptly. Had Counsel correctly read L.R. 5.11 and recognized that the electronic username and password is considered part of the electronic signature of the signing attorney, counsel Harrison, had he not avoided doing any such filing (which would have been the first option), would have promptly filed his motion for pro hac vice admission which motion he would have recognized as a prerequisite for "signing" a filing as counsel. Counsel Savich had authorized counsel Harrison to make such filings in a paralegal capacity with his approval using counsel Savich's username and password and counsel Harrison could have (and should have) done so on the two occasions referenced above. Had counsel Harrison properly read L.R. 5.11, counsel Harrison would simply have availed himself of the alternative procedure readily available to him of having cocounsel file the documents in question or filing as an authorized paralegal under their username and password. No advantage was gained or intended for counsel or Plaintiff in using the wrong procedure in this case. The error was inadvertent. Counsel Harrison has assisted co-counsel Savich in making several electronic filings, most filed under Mr. Savich's name by him, but some filed by Counsel Harrison on Mr. Savich's direction. In every case it has been an explicit understanding between counsels Harrison and Savich that because counsel Harrison has yet to be admitted in this matter, that Counsel Savich's opinions and decisions on all matters would control and his approval was required. 8

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Counsel Harrison's confusion and mistake in believing he could file electronically as a paralegal under his own username was contributed to by counsel Harrison's experience in litigating cases before the MSPB. The MSPB electronic filing program includes prompts that ask whether you are the party or a representative for a party or someone else (such as a secretary or paralegal) authorized to file for someone who is a party or representative. Undoubtedly, the stress of dealing with counsel Harrison's public interest workload and family illnesses contributed to counsel Harrison not catching this error. The facts that counsel Harrison's filings on the two occasions referenced above were not rejected by the electronic filing system or subsequently by the Clerk, and that the Judge's staff's extended the courtesy of allowing counsel Harrison to appear in the initial prehearing conference to avoid inconvenience to co-counsel, while not justifying counsel Harrison's error in reading L.R. 5.11, did result in counsel mistakenly assuming that the procedure he was using was acceptable. Counsel Harrison at no time intended to mislead the Court or opposing counsel or misrepresent that he was admitted pro hac vice or otherwise in this matter but intended only to support his co-counsel, who were admitted, in a paralegal capacity under the supervision of Mr. Savich and with any additional direction co-counsel Reagan offered. Counsel Harrison brought the matter up himself initially, before any inquiry by the Clerk or the Court's staff, when the initial prehearing conference was set with Magistrate Judge Baker. Both admitted co-counsel Savich and Reagan had conflicts with the set date and time for that conference and Counsel Harrison called Judge Baker's office to inquire about the potential for either or both Plaintiff's admitted co-counsel to appear by phone, given that Counsel Harrison had yet to be admitted pro hac vice, which counsel Harrison 9

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explicitly pointed out. Counsel Harrison was advised by Court staff that it was acceptable for him to appear in person in the initial prehearing conference notwithstanding his pro hac vice motion was not yet filed or granted, and that it was not necessary for co-counsel to appear by phone or in person (which both co-counsel were prepared to do if required, albeit at some inconvenience). Counsel Harrison did participate in the conference without objection, which served to avoid and reduce conflicts in co-counsel's schedule, an opportunity made possible by the Court which was much appreciated. When the Court's staff made the recent inquiry with Counsel Harrison, and asked counsel Harrison whether he was admitted in this matter, counsel Harrison stated forthrightly that he was not yet admitted, but anticipated filing a motion for admission pro hac vice. Counsel Harrison does not recall stating to Court staff that he had forgotten to file his motion for admission pro hac vice, but may have so stated in reference to the most recent time period after the initial prehearing conference when counsel became burdened with numerous other case and family demands simultaneously. Counsel had not forgotten to file his pro hac vice motion prior to the initial prehearing conference but had simply not found time to prepare it and believed in good faith that with two other cocounsel admitted and acting in the case that this delay was not a violation of any rule. Counsel Harrison is unaware of any prejudice to Defendant that has resulted from Counsel Harrison's delay in filing his motion for pro hac vice or from counsel Harrison's two electronic filings in this matter. Counsel Harrison has placed payment of the required fee for pro hac vice admission in the mail to the Clerk on the day that motion and this response are being filed. Counsel Savich and counsel Harrison have filed a motion for 10

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pro hac vice admission of counsel Harrison in this matter, which was filed just prior to filing this response to the Court's Order. Counsel Harrison hopes that this response and that motion, will assist in addressing the Court's concerns expressed in the Order to Show Cause. The Court's Order to Show Cause makes reference to counsel Harrison signing, as co-counsel, a recent complaint in Sierra Club v. Gates, Case No. 2:07cv0101, which is also pending in this district. Mr. Harrison did sign this complaint but would not have done so in the absence of co-counsel admitted to practice before this district who also signed the complaint. Attorney Rudolph Savich of Bloomington, Indiana and Attorney Richard Condit of Washington, D.C. are co-counsel in that case and both are admitted in this dictrict. Counsel Harrison is filing his motion to appear pro hac vice in that case the week of filing the instant response in the above captioned matter. The delay in filing counsel Harrison's motion for pro hac vice admission in the Sierra Club matter, in which case counsel also intended to file his motion as soon as possible, was the result of the same circumstances described above, including counsel's demanding public interest case load, his family illnesses, and the difficulty of attempting to transition from a national practice to an Indiana based practice in the absence of substantial financial resources. These circumstances logically would have affected either both cases or neither. The Court's Order to Show Cause also makes note that counsel Harrison had not filed a motion to appear pro hac vice in the underlying State action that was removed to this court. Although the circumstances described above caused counsel's intial delay in filing for admission in that case, upon review of the applicable Indiana rules, it appeared to counsel Harrison that he would no longer be eligible for pro hac vice admission in 11

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Indiana once he determined to maintain a residence in the State of Indiana. Thus, counsel Harrison was and is in the process of applying for admission to the Indiana Bar on foreign license. Although the need for that admission in the underlying case was mooted by the removal to this Court, counsel Harrison still intends to proceed with that admission because of his change in professional plans to now be based in Indiana. This change affects one other Indiana state court case in which counsel Harrison was admitted pro hac vice five years ago in which counsel represents the Indiana Forest Alliance in a suit against the State Department of Natural Resources.

ARGUMENT It appears from past practice in the federal courts in Indiana and in the Seventh Circuit, that a disciplinary proceeding is not initiated when an attorney is first discovered to have failed to promptly file a motion for pro hac vice admission. This appears to be so even when that attorney is sole counsel for a party, unlike here. It appears that the practice is that before a disciplinary proceeding is initated or a sanction issued, the attorney is provided a direction from the court to promptly file their motion for admission. See, e.g., Allen v. International Truck and Engine, No. 1:02-cv-0902-RLYTAB, slip op. at note 12 (S.D.Ind. 09/06/2006). In Allen, a case where sanctions were eventually issued against certain counsel based on later substantial misrepresentations to the court, the court noted in footnote 12 of the opinion that earlier in the case other counsel for the same or an aligned party had apparently participated in depositions without being admitted and had misrepresented in open court that their motions for admittance pro hac vice had been filed when the motions had not been filed. 12

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Littler Mendelson attorneys were not the only counsel guilty of incorrect statements. Incredibly, deposition counsel for Boardman and Parsons incorrectly portrayed the status of their pro hac vice motions. Both separately represented in open court that pro hac vice motions had been filed on their behalf when in fact none had been filed. These motions were filed only after the Court directly confronted counsel on this matter. Id. In Allen, apparently the Court directly confronted the attorneys in question, after the attorneys had misrepresented they had filed their motions to be admitted, and directed the filing of those motions, rather than initiating a disciplinary proceeding. One presumes such a proceeding would have been initiated if counsel had disregarded the court's instruction. Also see, Garb-Ko, Inc. v. Prough, No. 1:06-cv-1715-DFH-WTL (S.D.Ind. 04/11/2007), a case in which a party appearing to litigate the case pro se actually had assistance of counsel. The court gave the unannounced counsel direction to file their motion to be admitted and did not immediately initiated a disciplinary proceeding. And see, Issa v. Priority Transportation, LLC, No. 1:05-CV-394-TS (N.D.Ind. 02/07/2006), a case in which counsel that had removed a state case to federal court, as here, without being first admitted pro hac vice wree not disciplined and the removal filing was considered cured by a pro hac vice filing after the fact. A Seventh Circuit case also reflects the practice that a sanction may well be called for when counsel disregards an order that counsel who have not filed for admission promptly do so, but no disciplinary proceeding is initiated prior to the court confronting counsel with the failure and counsel disregarding the court's direction. The original complaint failed to seek any relief on behalf of Mr. Chada. Consequently, defendant Offinger moved to dismiss that plaintiff from the action and sought Rule 11 sanctions against plaintiffs' counsel. The motion for sanctions was treated as moot after plaintiffs filed an amended complaint. At a status conference held on September 12, 1988, the district court ordered counsel for the plaintiffs to supply all parties with a copy of 13

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the amended complaint within a week. The court also informed one of the attorneys representing the plaintiffs that he must seek admission to practice in the district. Plaintiffs' other counsel was made aware of this requirement through a letter from the district court. The amended complaint was not provided in a timely fashion, nor did either of plaintiffs' counsel seek admission to practice before the local court. In addition, a number of delays marred the discovery process. For example, one of plaintiffs' counsel was forty-five minutes late for a deposition, and counsel canceled the deposition of Mr. Cheung, a resident of California, three times. Plaintiffs were tardy in filing responses to interrogatories, thus violating local court rules. Citing "this record of dilatory actions, or lack of action," the court on February 6, 1989 granted a motion for discovery sanctions and a motion for expenses incurred in bringing a motion to compel discovery.*fn2 R.64 at 18. The court ordered plaintiffs' counsel to pay $750 within thirty days.*fn3 At the same time, the court scheduled the next status conference for March 6, 1989. [The District Court] ordered and adjudged that in light of plaintiff's counsel's continuing failure to comply with Court orders, including gaining admission to practice in this district, paying sanctions previously imposed by this Court, failing to pay agreed expenses and failing to attend Court hearings, and upon motions of all appearing defendants for dismissal with prejudice and costs, that [the] action be dismissed with prejudice and with costs. . . . The district court also based the dismissal and the denial of the motion to vacate in part on the failure of plaintiffs' counsel to apply for admission to practice before the district court. In this appeal, appellants' counsel explained that they believed the court's original order to apply for admission simply meant that they must be admitted by the time of trial. This failure by counsel -- even when combined with failure to attend a single status conference -- may not provide an adequate basis for the judgment of dismissal. See Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247-48 (5th Cir. 1980). On remand, the district court must determine carefully whether the remainder of this case's litigation history demonstrated a sufficiently clear record of delay, contumacious conduct, or failed sanctions to justify the harsh sanction of dismissal. See Del Carmen, 908 F.2d at 163. Chada v. Olympia, 929 F.2d 703 (7th Cir. 1991). These cases support counsel Harrison's position that under the circumstances in the instant case, a disciplinary proceeding is premature. This is particularly true where as here, counsel has a reputation for ethical 14

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practice and there is no reason to believe that direction and a caution from the court will not suffice to prevent any future non-compliance.

CONCLUSION AND RELIEF REQUESTED WHEREFORE, good cause having been shown, counsel Harrison's violations of L.R. 5.11 being inadvertent and occuring under extenuating circumstances, counsel Harrison's delay in filing his motion for admission pro hac vice while not good practice not rising to a violation of a rule, for all the reasons stated in the foregoing statement of facts and argument, and in consideration of the interests of justice and the public interest, neither initiatation of a disciplinary proceeding nor issuance of any sanction against counsel or Plaintiff is warranted in this matter beyond direction that counsel Harrison maintain strict compliance with the rules of this Court during the remainder of this case. Respectfully submitted,

/s/ Mick G. Harrison, Esq. Mick G. Harrison, Esq. The Caldwell Center 323 S. Walnut Bloomington, IN 47401 812-323-7274 (voice) 859-321-1586 (cell) 859-986-2695 (fax) [email protected]

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CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing response by counsel Harrison to Order to Show Cause with accompanying declaration was electronically filed and thereby automatically served on the parties indicated below. Notice of this filing will be sent to the following parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. Michael P. Roche (admitted pro hac vice) Aviva Grumet-Morris (admitted pro hac vice) Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 Tel: (312) 558-5600 Fax: (312) 558-5700 [email protected] [email protected] Thomas E. Deer Locke Reynolds LLP 201 North Illinois Street, Suite 1000 P.O. Box 44961 Indianapolis, IN 46244-0961 Tel: (317) 237-3800 Fax: (317) 237-3900 [email protected] All done June 11, 2007. /s/ Mick G. Harrison, Esq. Mick G. Harrison, Esq. The Caldwell Center 323 S. Walnut Bloomington, IN 47401 812-323-7274 (voice) 859-321-1586 (cell) 859-986-2695 (fax) [email protected]

DECLARATION OF COUNSEL MICK G. HARRISON, ESQ. I, Mick G. Harrison, Esq., hereby declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the facts stated in foregoing response to the Court's Order to Show Cause are true and correct to the best of my knowledge and belief. 16

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/s/ Mick G. Harrison, Esq. Mick G. Harrison, Esq. The Caldwell Center 323 S. Walnut Bloomington, IN 47401 812-323-7274 (voice) 859-321-1586 (cell) 859-986-2695 (fax) [email protected]

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Date: 6/11/07

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