439 U.S. 438 (1979), 77-1618, Leis v. Flynt

Docket Nº:No. 77-1618
Citation:439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717
Party Name:Leis v. Flynt
Case Date:January 15, 1979
Court:United States Supreme Court

Page 438

439 U.S. 438 (1979)

99 S.Ct. 698, 58 L.Ed.2d 717




No. 77-1618

United States Supreme Court

Jan. 15, 1979




The interest of out-of-state attorneys, who were not admitted to practice law in Ohio, in representing defendants in an Ohio criminal prosecution held not to be a cognizable property or liberty interest within the terms of the Fourteenth Amendment, absent any showing of an independent state or federal law source for the interest. Hence, the Constitution did not obligate the Ohio courts to accord such attorneys procedural due process on their application for permission to appear pro hac vice.

Certiorari granted; 574 F.2d 874, reversed and remanded.

Per curiam opinion.


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.1

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Flynt and Hustler Magazine were indicted on February 8, 1977, for multiple violations of Ohio Rev.Code Ann. § 2007.31 (1975), which prohibits the dissemination of harmful material to minors. At the arraignment on February 25, local counsel for Flynt and Hustler presented an entry of counsel form that listed Fahringer and Cambria as counsel for both defendants. Neither lawyer was admitted to practice law in Ohio.2 The form was the one used by members of the Ohio Bar, and it neither constituted an application for admission pro hac vice nor alerted the court that Fahringer and Cambria were not admitted to practice in Ohio. The judge presiding at the arraignment routinely endorsed the form, but took no other action with respect to the two out-of-state lawyers.3

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[99 S.Ct. 700] The case was transferred as a matter of course to Judge Morrissey, who had before him another active indictment against Flynt and Hustler Magazine. Fahringer and Cambria made no application for admission pro hac vice to him or any other judge. At a pretrial conference on March 9, Judge Morrissey advised local counsel that neither out-of-state lawyer would be allowed to represent Flynt or Hustler Magazine. Fahringer and Cambria appeared in person before Judge Morrissey for the first time at a motions hearing on April 8, where they expressed their interest in representing the defendants. Judge Morrissey summarily dismissed the request. Respondents then commenced a mandamus action in the Ohio Supreme Court seeking to overturn the denial of admission. They also filed an affidavit of bias and prejudice seeking to remove Judge Morrissey from the case. The Ohio court dismissed the mandamus action, but did remove Judge Morrissey, stating that, while it found no evidence of bias or prejudice, trial before a different judge would avoid even the appearance of impropriety. The new trial judge ruled that the Ohio Supreme Court's dismissal of the mandamus action bound him to deny Fahringer and Cambria permission to represent Flynt and Hustler Magazine, but he did allow both of them to work with in-state counsel in preparing the case.

Respondents next filed this suit in the United States District Court for the Southern District of Ohio to enjoin further

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prosecution of the criminal case until the state trial court held a hearing on the contested pro hac vice application. The court ruled that the lawyers' interest in representing Flynt and Hustler Magazine was a constitutionally protected property right which petitioners had infringed without according the lawyers procedural due process. 434 F.Supp. 481 (1977). Further prosecution of Flynt and Hustler Magazine therefore was enjoined until petitioners tendered Fahringer and Cambria the requested hearing. The Sixth Circuit affirmed, holding that the lawyers could not be denied the privilege of appearing pro hac vice "without a meaningful hearing, the application of a reasonably clear legal standard and the statement of a rational basis for exclusion." 574 F.2d 874, 879 (1978).

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

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of the local bar. In view of the high mobility of the bar, and also the trend toward specialization, perhaps this is a practice to be encouraged. But it is not a right granted either by statute or the Constitution. Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and [99 S.Ct. 701] the standards of professional conduct. They also are responsible for the discipline of lawyers.4

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,

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where the rules of the Ohio Supreme Court expressly consign the authority to approve a pro hac vice appearance to the discretion of the trial court. N. 2, supra. Even if, as the Court of Appeals believed, respondents Fahringer and Cambria had "reasonable expectations of professional service," 574 F.2d at 879, they have not shown the requisite mutual understanding that they would be permitted to represent their clients in any particular case in the Ohio courts. The speculative claim that Fahringer's and Cambria's reputation might suffer as the result of the denial of their asserted right cannot, by itself, make out an injury to a constitutionally protected interest. There simply was no deprivation here of some right previously held under state law. Id. at 708-709.

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

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appear pro hac vice before the Court of Common Pleas of Hamilton County.5

The petition for writ of certiorari is granted, the judgment

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of the Sixth Circuit [99 S.Ct. 702] is reversed, and the case is remanded for further proceedings consistent with this opinion.

It so ordered.

MR. JUSTICE WHITE would grant certiorari and set the case for oral argument.

STEVENS, J., dissenting


A lawyer's interest in pursuing his calling is protected by the Due Process Clause of the Fourteenth Amendment.1 The question presented by this case is whether a lawyer abandons that protection when he crosses the border of the State which issued his license to practice.

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...

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