Petitioners, the judges of the Court of Common Pleas of Hamilton County, Ohio, and the Hamilton County prosecutor, seek relief from a decision of the United States Court of Appeals for the Sixth Circuit. The Court of Appeals upheld a Federal District Court injunction that forbids further prosecution of respondents Larry Flynt and Hustler Magazine, Inc., until respondents Herald Fahringer and Paul Cambria are tendered a hearing on their applications to appear pro hac vice in the Court of Common Pleas on behalf of Flynt and Hustler Magazine. Petitioners contend that the asserted right of an out-of-state lawyer to appear pro hac vice in an Ohio court does not fall among those interests protected by the Due Process Clause of the Fourteenth Amendment. Because we agree with this contention, we grant the petition for certiorari and reverse the judgment of the Sixth Circuit.
Respondents next filed this suit in the United States District Court for the Southern District of Ohio to enjoin further
As this Court has observed on numerous occasions, the Constitution does not create property interests. Rather it extends various procedural safeguards to certain interests "that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577 (1972); see Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978); Bishop v. Wood, 426 U.S. 341, 344 (1976); Paul v. Davis, 424 U.S. 693, 709-710 (1976); Goss v. Lopez, 419 U.S. 565, 572-574 (1975); Perry v. Sindermann, 408 U.S. 593, 602 n. 7 (1972). The Court of Appeals evidently believed that an out-of-state lawyer's interest in appearing pro hac vice in an Ohio court stems from some such independent source. It cited no state-law authority for this proposition, however, and indeed noted that "Ohio has no specific standards regarding pro hac vice admissions . . . ." 574 F. 2d, at 879. Rather the court referred to the prevalence of pro hac vice practice in American courts and instances in our history where counsel appearing pro hac vice have rendered distinguished service. We do not question that the practice of courts in most States is to allow an out-of-state lawyer the privilege of appearing upon motion, especially when he is associated with a member
A claim of entitlement under state law, to be enforceable, must be derived from statute or legal rule or through a mutually explicit understanding. See Perry, supra, at 601-602. The record here is devoid of any indication that an out-of-state lawyer may claim such an entitlement in Ohio,
Nor is there a basis for the argument that the interest in appearing pro hac vice has its source in federal law. See Paul v. Davis, supra, at 699-701. There is no right of federal origin that permits such lawyers to appear in state courts without meeting that State's bar admission requirements. This Court, on several occasions, has sustained state bar rules that excluded out-of-state counsel from practice altogether or on a case-by-case basis. See Norfolk & Western R. Co. v. Beatty, 423 U.S. 1009 (1975), summarily aff'g 400 F.Supp. 234 (SD Ill.); Brown v. Supreme Court of Virginia, 414 U.S. 1034 (1973), summarily aff'g 359 F.Supp. 549 (ED Va.). Cf. Hicks v. Miranda, 422 U.S. 332, 343-345 (1975). These decisions recognize that the Constitution does not require that because a lawyer has been admitted to the bar of one State, he or she must be allowed to practice in another. See Ginsburg v. Kovrak, 392 Pa. 143, 139 A.2d 889, appeal dismissed for want of substantial federal question, 358 U.S. 52 (1958). Accordingly, because Fahringer and Cambria did not possess a cognizable property interest within the terms of the Fourteenth Amendment, the Constitution does not obligate the Ohio courts to accord them procedural due process in passing on their application for permission to
The petition for writ of certiorari is granted, the judgment
It is so ordered.
MR. JUSTICE WHITE would grant certiorari and set the case for oral argument.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.
A lawyer's interest in pursuing his calling is protected by the Due Process Clause of the Fourteenth Amendment.
The Court holds that a lawyer has no constitutionally protected interest in his out-of-state practice. In its view, the interest of the lawyer is so trivial that a judge has no obligation to give any consideration whatsoever to the merits of a pro hac vice request, or to give the lawyer any opportunity to advance reasons in support of his application. The Court's square holding is that the Due Process Clause of the Fourteenth Amendment simply does not apply to this kind of ruling by a state trial judge.
A few years ago the Court repudiated a similar syllogism which had long supported the conclusion that a parolee has no constitutionally protected interest in his status.
The notion that a state trial judge has arbitrary and unlimited power to refuse a nonresident lawyer permission to appear in his courtroom is nothing but a remnant of a bygone
History attests to the importance of pro hac vice appearances. As Judge Merritt, writing for the Court of Appeals, explained:
The modern examples identified by Judge Merritt, though more illustrious than the typical pro hac vice appearance, are not rare exceptions to a general custom of excluding nonresident lawyers from local practice. On the contrary, appearances by out-of-state counsel have been routine throughout the country for at least a quarter of a century.
This case involves a pro hac vice application by qualified legal specialists;
The interest these lawyers seek to vindicate is not merely the pecuniary goal that motivates every individual's attempt to pursue his calling.
In the past, Ohio has implicitly assured out-of-state practitioners that they are welcome in Ohio's courts unless there is a valid, articulable reason for excluding them. Although the Ohio Supreme Court dismissed respondents' petition for an extraordinary writ of mandamus in this case, it has not dispelled that assurance because it did not purport to pass on the merits of their claim.
The District Court found as a fact that Ohio trial judges routinely permit out-of-state counsel to appear pro hac vice.
Either the "nature" of the interest in pro hac vice admissions or the "implicit promise" inhering in Ohio custom with respect to those admissions is sufficient to create an interest protected by the Due Process Clause. Moreover, each of these conclusions reinforces the other.
The mode of analysis employed by the Court in recent years has treated the Fourteenth Amendment concepts of "liberty" and "property" as though they defined mutually exclusive, and closed categories of interests, with neither shedding any light on the meaning of the other. Indeed, in some of the Court's recent opinions it has implied that not only property but liberty itself does not exist apart from specific state authorization or an express guarantee in the Bill of Rights.
As is demonstrated by cases like Meyer v. Nebraska, 262 U.S. 390, 399; Morrissey v. Brewer, 408 U.S. 471; Bell v. Burson, 402 U.S. 535, 539, and Mr. Justice Frankfurter's classic concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162, judicial construction of the words "life, liberty, or property" is not simply a matter of applying the precepts of logic to accepted premises. Rather, it is experience and judgment that have breathed life into the Court's process of constitutional adjudication. It is not only Ohio's experience with out-of-state practitioners, but that of the entire Nation as well, that compels the judgment that no State may arbitrarily reject a lawyer's legitimate attempt to pursue this aspect of his calling.
It is ironic that this litigation should end as it began—with a judicial ruling on the merits before the parties have been heard on the merits. Pursuant to Rules 19, 23, and 24 of this Court, the only issue discussed in the petition for certiorari and in respondents' brief memorandum in reply is whether "a Writ of Certiorari should issue to review the judgment and opinion of the Sixth Circuit in this matter." Pet. for Cert. 19. This surely is not a case that should be decided before respondents have been given an opportunity to address the merits. Summary reversal "should be reserved for palpably clear cases of . . . error." Eaton v. Tulsa, 415 U.S. 697, 707
"No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which he is not a party concerned, either by using or subscribing his own name, or the name of another person, unless he has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules."
Rule I, § 8 (C), of the Supreme Court Rules for the Government of the Bar of Ohio determines when out-of-state attorneys may appear pro hac vice in Ohio courts:
"Admission Without Examination.
"(C) An applicant under this section shall not engage in the practice of law in this state prior to the filing of his application. To do so constitutes the unauthorized practice of law and will result in a denial of the application. This paragraph (C) does not apply to participation by a non-resident of Ohio in a cause being litigated in this state when such participation is with leave of the judge hearing such cause."
The dissenting opinion also suggests that a client's interest in having out-of-state counsel is implicated by this decision. Post, at 445-446, n. 2. The court below, however, "did not reach the issue of whether the constitutional rights of Flynt and Hustler Magazine had also been violated," 574 F.2d 874, 877 (CA6 1978), recognizing as it did that a federal-court injunction enjoining a state criminal prosecution on a ground that could be asserted by the defendant in the state proceeding would conflict with this Court's holding in Younger v. Harris, 401 U.S. 37 (1971).
The first of these lawyer's "interests" is described as that of "discharging [his] responsibility for the fair administration of justice in our adversary system." Post, at 453. As important as this interest is, the suggestion that the Constitution assures the right of a lawyer to practice in the court of every State is a novel one, not supported by any authority brought to our attention. Such an asserted right flies in the face of the traditional authority of state courts to control who may be admitted to practice before them. See Norfolk & Western R. Co. v. Beatty, supra; ABA Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement 13-14 (Final Draft 1970). If accepted, the constitutional rule advanced by the dissenting opinion would prevent those States that have chosen to bar all pro hac vice appearances from continuing to do so, see, e. g., Cal. Bus. & Prof. Code Ann. §§ 6062, 6068 (West 1974 and Supp. 1978); and would undermine the policy of those States which do not extend reciprocity to out-of-state lawyers, see, e. g., Ariz. Sup. Ct. Rule 28 (c) I; Fla. Rules of the Sup. Ct. Relating to Admissions to the Bar, Art. I, § 1.
The second ground for due process protection identified in the dissenting opinion is the "implicit promise" inherent in Ohio's past practice in "assur[ing] out-of-state practitioners that they are welcome in Ohio's courts. . . ." Post, at 456, 453. We recall no other claim that a constitutional right can be created—as if by estoppel—merely because a wholly and expressly discretionary state privilege has been granted generously in the past. That some courts, in setting the standards for admission within their jurisdiction, have required a showing of cause before denying leave to appear pro hac vice provides no support for the proposition that the Constitution imposes this "cause" requirement on state courts that have chosen to reject it.
"I will tell you this then, Mr. Flynt. [T]he case is set for the 2d of May, 1977. . . . The only thing is that you will be restricted to having an attorney that's admitted to practice in the State of Ohio." Tr. of Proceedings in Common Pleas Court, Hamilton County, Ohio, in No. B77-0341 on Apr. 8, 1977, p. 5 (emphasis added).
A defendant's interest in adequate representation is "perhaps his most important privilege" protected by the Constitution. Powell v. Alabama, 287 U.S. 45, 70. Whatever the scope of a lawyer's interest in practicing in other States may be, Judge Friendly is surely correct in stating that the client's interest in representation by out-of-state counsel is entitled to some measure of constitutional protection:
"We are persuaded, however, that where a right has been conferred on citizens by federal law, the constitutional guarantee against its abridgment must be read to include what is necessary and appropriate for its assertion. In an age of increased specialization and high mobility of the bar, this must comprehend the right to bring to the assistance of an attorney admitted in the resident state a lawyer licensed by `public act' of any other state who is thought best fitted for the task, and to allow him to serve in whatever manner is most effective, subject only to valid rules of courts as to practice before them. Cf. Lefton v. City of Hattiesburg, 333 F.2d 280, 285 (5 Cir. 1964). Indeed, in instances where the federal claim or defense is unpopular, advice and assistance by an out-of-state lawyer may be the only means available for vindication." Spanos v. Skouras Theatres Corp., 364 F.2d 161, 170 (en banc) (CA2 1966).
In full, Judge Morrissey ruled: "Mr. Fahringer and Mr. Cambria are not attorneys of record in this case and will not be permitted to try this case." Tr. of Apr. 8, 1977, supra, at 3. So far as the record shows, this was the second official action taken with respect to the pro hac vice applications of Fahringer and Cambria. In the first, Judge Rupert A. Doan, who presided at Flynt's arraignment, issued two orders designating both lawyers counsel "of record" in case No. B77-0341, the case eventually assigned to Judge Morrissey for trial. According to Rule 10 (E) of the Rules of Local Practice of the Court of Common Pleas, Hamilton County, Ohio, under which Judges Doan and Morrissey were operating, once a designation order is filed, "such attorney shall become attorney of record. . . and shall not be permitted to withdraw except upon written motion and for good cause shown." Despite Rule 10 (E), no objection to the appearance of Fahringer and Cambria, nor any argument either for or against their request, was heard in advance of the final ruling. In point of fact, nothing in the record identifies a legitimate reason for the judge's action.
The record does suggest, and in any case the Court's broad holding would certainly encompass, one explanation for Judge Morrissey's unusual ruling, but it can hardly be characterized as legitimate. This is an obscenity case. Conceivably Judge Morrissey has strong views about the distribution of pornographic materials to minors and about lawyers who specialize in defending such activity. Perhaps these are not the kind of lawyers that he wants practicing in his courtroom. That Judge Morrissey reportedly referred to Fahringer as a "fellow traveler" of pornographers is at least consistent with these speculations. Cincinnati Post, Feb. 9, 1977, p. 13. Indeed, after denying respondents' request to have Judge Morrissey removed from the case for bias, the Supreme Court of Ohio without explanation ordered that another judge of the Hamilton County Court of Common Pleas try the case.
"The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked.
"We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a `grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a `right' or a `privilege.' By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal." 408 U. S., at 481-482.
Fahringer and Cambria in no way rely on the fact that the denial of their applications "might make them somewhat less attractive" to clients and might otherwise compromise their professional reputations. Cf. Bishop v. Wood, 426 U.S. 341, 348-350.
"[T]he legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice."
Other appellate courts have held or stated in dicta that admission pro hac vice to trial courts within their jurisdiction may not be denied without cause. In re Evans, 524 F.2d 1004, 1007 (CA5 1975) (denial inappropriate except upon showing of unethical conduct); McKenzie v. Burris, 255 Ark. 330, 344, 500 S.W.2d 357, 366 (1973) (trial court may not impose "arbitrary numerical limitation on the number of [pro hac vice] appearances by an attorney" with expertise in the relevant area). See also Munoz v. United States District Court, 446 F.2d 434 (CA9 1971); Atchison, T. & S. F. R. Co. v. Jackson, 235 F.2d 390, 393 (CA10 1956); Brown v. Wood, 257 Ark. 252, 258, 516 S.W.2d 98, 102 (1974). The requirement of cause has even greater support where, as here, see n. 3, supra, an out-of-state attorney in a criminal case has previously been made counsel of record by order of a trial court. Cooper v. Hutchinson, 184 F.2d 119, 123 (CA3 1950); State v. Kavanaugh, 52 N.J. 7, 18, 243 A.2d 225, 231 (1968); Smith v. Brock, 532 P.2d 843, 850 (Okla. 1975).