Ross v. Reda, 74--1771
| Decision Date | 13 February 1975 |
| Docket Number | No. 74--1771,74--1771 |
| Citation | 510 F.2d 1172 |
| Parties | Charles O. ROSS, Petitioner-Appellant, v. Honorable Frank REDA, Judge, Franklin County Municipal Court, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
R. Raymond Twohig, Jr., Handelman & Twohig, Columbus, Ohio, William M. Kunstler, Center for Constitutional Rights, New York City, Campbell, Schwarzwalder & Sanford, Columbus, Ohio, for petitioner-appellant.
James Hughes, City Atty., Carl T. Wolfrom, Columbus, Ohio, for respondent-appellee.
Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and DeMASCIO, District Judge. *
This is an appeal from an order denying the application of Charles O. Ross for a writ of habeas corpus. It is contended that refusal of the Ohio State trial court to admit out-of-state counsel pro hac vice 1 to represent Ross at his trial in that court deprived Ross of his Sixth Amendment right to counsel. The out-of-state attorney had been licensed to practice in other jurisdictions, but was not licensed to practice in Ohio. Reference is made to the decisions of the Ohio Court of Appeals in State v. Ross, 36 Ohio App.2d 185, 304 N.E.2d 396 (1973), cert. denied, 415 U.S. 904, 94 S.Ct. 1397, 39 L.Ed.2d 461 (1974), for a statement of the facts of this case. We affirm the denial of the writ.
While the Sixth Amendment right '(i)n all criminal prosecutions' to the 'assistance of counsel' implies a degree of freedom to be represented by counsel of defendant's choice, this guarantee does not grant the unconditional right to representation in a state court by a particular out-of-state attorney. To the contrary, in Thomas v. Cassidy, 249 F.2d 91, 92 (4th Cir. 1957), cert. denied, 355 U.S. 958, 78 S.Ct. 544, 2 L.Ed.2d 533 (1958), the Court said:
(I)t is well settled that permission to a nonresident attorney, who has not been admitted to practice in a court, to appear pro hac vice in a case there pending is not a right but a privilege, the granting of which is a matter of grace resting in the sound discretion of the presiding judge.
Moreover, the Sixth Amendment claim is modified significantly by the actual availability and presence of other competent counsel.
Before his trial in the State court the defendant Ross had retained three lawyers who were licensed to practice in Ohio. These Ohio attorneys were ready and available to represent the defendant. Ross chose to discharge his Ohio lawyers and to present his own case. At least one of these attorneys remained in the courtroom throughout the trial and was available to Ross for consultation at all stages of the proceeding.
The prerogative of a trial judge to exclude out-of-state counsel, like the right of a defendant to be represented by the counsel of his choice, is not an absolute right. In the present case the state trial court denied the application of the out-of-state attorney for admission pro hac vice on the ground that he affirmatively refused to limit his out-of-court statements about the case during its pendency. In his order the trial judge noted, among other reasons for denying the application, the following:
(B)ut there is no question in the mind of this Court that the applicant's conduct was unprofessional and in violation of the Code of Professional Responsibility, particularly Canon 7, EC 7--36, DR 7--107(A)(B); Canon 8, DR 8--102(B); Canon 9 EC 9--1, 2, 6.
The Ohio Court of Appeals held that the refusal of the out-of-state counsel to limit his out-of-court statements about the case during its pendency constituted a potential violation of Canon 7 of the Ohio Canons of Ethics.
We view this justification as sufficient to warrant the legitimate exercise of the...
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People v. Fett
...connection with the case in which he wished to appear and which was being prosecuted by his sister as plaintiff"), and Ross v. Reda, 510 F.2d 1172, 1173 (C.A.6, 1975) (the trial court was justified in refusing admission pro hac vice where the out-of-state lawyer affirmatively refused to lim......
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State v. Reed
...does not grant the unconditional right to representation in a state court by a particular out-of-state attorney." Ross v. Reda, 510 F.2d 1172, 1173 (6th Cir.). It is well settled that "permission to a nonresident attorney, who has not been admitted to practice in a court, to appear pro hac ......
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