Quick Answer
Under Del. Bankr. L.R. 9010-1(b), an attorney in good standing elsewhere may be admitted pro hac vice at the Court’s discretion on Local Form 105. Admission is conditioned on association with Delaware counsel under subsection (c), who must be the CM/ECF filer and must attend proceedings. A party has 28 days after its first filing to associate Delaware counsel under subsection (d). One exception matters: claim litigation.
Distinguish the Two Courts First
A recurring source of confusion is that the District of Delaware has separate admission regimes for the District Court and the Bankruptcy Court, and practitioners sometimes read one and apply the other.
District Court. Pro hac vice admission is governed by D. Del. L.R. 83.5(c). The motion is filed by local counsel with a certification by the applicant, and a fee applies, payable to the Clerk or electronically by an admitted attorney. Attorneys admitted pro hac vice may register for electronic noticing on a case-by-case basis, which provides notices but not filing rights.
Bankruptcy Court. Admission is governed by Del. Bankr. L.R. 9010-1, and the form is Local Form 105. This is the rule that governs your appearance in the bankruptcy case or adversary proceeding.
Confirm the current version and fee on each court’s website before filing, as both are amended from time to time.
Eligibility, and Who Is Excluded
Subsection (b) permits admission of attorneys admitted, practicing, and in good standing in another jurisdiction who are not admitted by both the Supreme Court of the State of Delaware and the District Court. Admission is discretionary and expressly at the pleasure of the Court.
Three categories are ineligible unless the Court orders otherwise, or unless admission is authorized by the Constitution or an act of Congress. An applicant may not be admitted pro hac vice if the applicant:
- resides in Delaware;
- is regularly employed in Delaware; or
- is regularly engaged in business, professional, or other similar activities in Delaware.
The purpose is straightforward. Pro hac vice is for out-of-state lawyers appearing in a particular matter, not a substitute for Delaware admission by someone effectively practicing there.
Any Judge may revoke a pro hac vice admission after notice and hearing for good cause. Under subsection (f), all attorneys admitted or authorized to practice before the Court are governed by the ABA Model Rules of Professional Conduct, subject to modification by federal statute, rule, or decision.
The Association Requirement Is the Substance of the Rule
Subsection (c) is where out-of-state counsel most often underestimate the obligation. It provides that an attorney not admitted by both the District Court and the Delaware Supreme Court may not be admitted pro hac vice unless associated with Delaware counsel, defined as a member of the Bar of the District Court who maintains an office in the District of Delaware for the regular transaction of business.
Two operative consequences follow in the text of the rule itself:
Delaware counsel files everything. Consistent with CM/ECF procedures, Delaware counsel must be the registered CM/ECF user and is required to file all papers, including petitions. You will not be filing your own briefs.
Delaware counsel attends. Unless the Court orders otherwise, Delaware counsel must attend proceedings before the Court. This is not satisfied by a signature block. Pro hac vice counsel typically argues, and Delaware counsel is present.
Structure your engagement and your budget around both of those facts rather than discovering them at the first hearing.
The 28 Day Clock
Subsection (d) provides that, except as otherwise provided in Local Rule 1002-1(b) or 9010-1(e) with respect to signing and filing petitions, a party not appearing pro se must obtain representation by a member of the District Court Bar, or have its counsel associate with one under subsection (c), within 28 days after:
- the filing of the first paper filed on its behalf; or
- the filing of a case transferred or removed to the Court.
Failure to timely obtain representation subjects the defaulting party to appropriate sanctions.
Note what starts the clock. It is your own first filing, not a court order and not service of the complaint. Filing a notice of appearance starts it. The practical lesson is to line up Delaware counsel before the first paper goes in rather than after, which also avoids the awkward position of having filed something you were not authorized to file.
The Exceptions
Subsection (e) sets out three situations in which neither a pro hac vice motion nor association with Delaware counsel is required.
Government attorneys, (e)(i). An attorney who is a government employee, not admitted in the District Court but admitted in another United States District Court, may appear for the United States or any officer or agency, or for a state or local government or its officers or agencies, on filing a certification stating the courts in which the attorney is admitted, that the attorney is in good standing in all of them, and that the attorney will be bound by the local rules and submits to the Court’s disciplinary jurisdiction. Local Form 105A.
Delaware Bar members without a Delaware office, (e)(ii). Attorneys admitted to the Bar of the District Court and in good standing who do not maintain an office in the District may appear on approval by the Court.
Claim litigation, (e)(iii). This is the exception with the broadest practical reach. Parties, whether pro se or through out-of-state counsel, may file or prosecute a proof of claim or a response to their claim. The Court may, however, direct the claimant to consult with Delaware counsel if the claim litigation will involve extensive discovery or trial time.
That last exception is worth reading closely before you assume your client needs local counsel. If the engagement is genuinely limited to asserting a claim and defending the amount against an objection, you may proceed without Delaware counsel and without a motion. If it develops into discovery-intensive litigation, expect the Court to direct otherwise.
Related, Local Rule 9010-3 addresses appearance by a supervised law student.
Mechanics
The form. Local Form 105, available on the Court’s website, may be amended by the Court. Local Form 105A is the government attorney certification.
Who files it. Delaware counsel, as the CM/ECF registered user.
Proposed orders. The Court publishes procedures for uploading proposed orders for signature on its website, and the pro hac vice order follows those procedures. Check them rather than assuming the practice matches another district.
Timing. File the motion promptly on engagement. There is no advantage to waiting, and the 28 day clock is running from your first filing regardless.
A Note on What Delaware Counsel Is Actually For
The rule’s requirements are the floor. The reason experienced out-of-state counsel value good Delaware counsel is different.
The District of Delaware has well-developed local rules, standing orders, and judge-specific practices, and cases move on compressed schedules. Knowing which judge expects what, how a particular chambers handles scheduling and certifications of counsel, when a matter will be referred to mediation, and how the main case’s posture affects your adversary proceeding is not information contained in the rules. It is the difference between filing something correctly and filing something effectively.
Frequently Asked Questions
Can I be admitted pro hac vice without Delaware counsel?
Not ordinarily. Subsection (c) conditions pro hac vice admission on association with Delaware counsel unless the Court orders otherwise. The exceptions in subsection (e) operate differently, dispensing with both requirements in the situations described.
I am admitted in the District of Delaware. Do I still need Delaware counsel?
If you are a member of the Bar of the District Court, you are within the Bar of the Bankruptcy Court under subsection (a). If you do not maintain a Delaware office, subsection (e)(ii) contemplates appearance on approval by the Court.
How many times can I appear pro hac vice?
The rule does not set a numerical cap, but it does exclude applicants who are regularly engaged in business or professional activities in Delaware. Frequent appearances can raise that question, and admission remains discretionary.
Does Delaware counsel have to argue the motion?
No. Pro hac vice counsel commonly argues. The rule requires Delaware counsel’s attendance and filing, not its advocacy.
Can my client just file its proof of claim itself?
Yes, under subsection (e)(iii). Whether it should, given that a defective claim can be disallowed and that the claim may later interact with preference exposure under § 502(d), is a separate question.
What happens if we blow the 28 days?
The rule provides for appropriate sanctions. More practically, papers filed by an attorney not properly admitted invite a challenge you do not want to be answering on the merits schedule.
This article is general information about practice before the United States Bankruptcy Court for the District of Delaware and is not legal advice. Local rules and forms are amended from time to time, and the current versions should be confirmed on the Court’s website at deb.uscourts.gov. Jenny R. Kasen has appeared before that Court for more than thirteen years.