DiLuzio v. United Elec., Radio and Mach. Workers of America, Local 274

• Decision Date: 16 February 1984
• Citation: 461 N.E.2d 766,391 Mass. 211
• Parties: Anita Faye DiLUZIO v. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL 274 et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 766

461 N.E.2d 766

391 Mass. 211

Anita Faye DiLUZIO v. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA LOCAL 274 et al. ¹

Supreme Judicial Court of Massachusetts Franklin.

Argued Sept. 15, 1983.

Decided February 16, 1984.

Glenn M. Taubman, Virginia (Jack D. Curtiss, Greenfield, with him), for plaintiff.

William C. Newman, Northampton (Wendy Sibbison, Northampton, with him), for Alex Markley & another.

Leonard Polletta, New York City, for United Elec., Radio and Mach. Workers of America, Local 274.

Frederick V. Casselman, Boston, for Bruce N. Cameron, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

This appeal arises from the denial of a motion by the plaintiff Anita Faye DiLuzio for the admission pro hac vice of a staff attorney from The National Right to Work Legal Defense Foundation, Inc. (foundation), to represent her along with local counsel in an action brought against the defendant labor unions. The trial judge denied the plaintiff's motion, and we granted the plaintiff's application for direct appellate review. We find no abuse of discretion in the judge's decision to deny the pro hac vice motion, and thus we affirm the ruling below.

This dispute over the admission of the plaintiff's out-of-State counsel is the latest skirmish in an ongoing battle between the parties concerning injuries allegedly occurring as a result of the plaintiff's crossing a picket line maintained by the defendant unions in January, 1980. The plaintiff retained Mr. Jack D. Curtiss, a Massachusetts attorney, to represent her in the litigation. Mr. Curtiss, in turn, sought the assistance of the foundation for the purpose of both financially underwriting the litigation and contributing expertise on labor and constitutional issues. The foundation agreed to provide financial and legal assistance, and to this end two of its staff attorneys, Mr. Dannie B. Fogleman and Mr. Bruce N. Cameron, became associated with the litigation on an "of counsel" basis.

The defendant unions' motion to dismiss the suit was allowed by the judge, on the ground that unincorporated labor organizations could not be sued in Massachusetts. In DiLuzio v. United Elec., Radio & Mach. Workers, Local 274, 386 Mass. 314, 435 N.E.2d 1027 (1982), we reversed the judge's ruling, holding that such entities are amenable to suit. Mr. Fogleman was responsible for the foundation's contribution to the litigation up until that point; he was admitted pro hac vice without opposition by the defendant unions and, in fact, argued the case before this court. The case was then remanded to the Superior Court for further proceedings, and about this time Mr. Fogleman resigned from the case and was replaced by Mr. Cameron, who had not yet participated in the litigation.

However, this time the plaintiff's motion for admission pro hac vice of the foundation's attorney was opposed by the defendants. Both parties filed extensive briefs and supporting affidavits regarding the motion for admission. After consideration of these materials, the judge denied the motion. The plaintiff argues that the judge abused her discretion in denying the motion, and avers that the fact that the judge did not hold a formal hearing or find facts regarding the motion amounted to a denial of due process. The plaintiff also claims, as does Mr. Cameron in an amicus curiae brief, that various rights of speech and association protected under the First Amendment to the United States Constitution were infringed by the judge's refusal to grant the pro hac vice motion.

Before reaching the substantive merits of the plaintiff's claims, we must deal with the unions' argument that this court lacks jurisdiction to hear the plaintiff's appeal. The defendants derive this contention from the plaintiff's failure to follow the procedures required for the review of interlocutory orders: the aggrieved party must either have the judge report the matter to the Appeals Court, G.L. c. 231, § 111, or a petition must be filed with the Appeals Court seeking relief from the order. G.L. c. 231, § 118. However, an order granting a motion to disqualify counsel has traditionally been held to be a final judgment and therefore immediately appealable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). See, e.g., Draganescu v. First Nat'l Bank, 502 F.2d 550 (5th Cir.1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975). This doctrine has a close Massachusetts counterpart in our rule of present execution. Borman v. Borman, 378 Mass. 775, 780, 393 N.E.2d 847 (1979). See Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 233 N.E.2d 29 (1968); Lynde v. Vose, 326 Mass. 621, 96 N.E.2d 172 (1951). Applying this rule in Borman, we agreed to review directly a pretrial ruling by a Probate Court judge disqualifying counsel for one of the parties in a divorce proceeding, on the grounds that "disqualification orders are conclusive of a party's right to counsel of his choice and are effectively unreviewable on appeal from judgment." Borman v. Borman, supra, 378 Mass. at 780, 393 N.E.2d 847. In the instant case, the judge's denial of the plaintiff's pro hac vice motion has the same impact and is in effect a final judgment. As such, the ruling may properly be appealed under G.L. c. 231, § 117.

To resolve the plaintiff's arguments, we first consider the application of G.L. c. 221, § 46A, to this case. This section provides that "a member of the bar, in good standing, of any other state may appear, by permission of the court, as attorney or counselor, in any case pending therein, if such other state grants like privileges to members of the bar, in good standing, of this commonwealth." G.L. c. 221, § 46A, inserted by St.1935, c. 346, § 2. Parsing the statute, its operation turns on the fulfilment of its initial condition, "permission of the court." The prominent placement of this statutory element is not accidental, since it is of constitutional significance: "It is inherent in the judicial department of government under the [Massachusetts] Constitution to control the practice of law ... and as a general proposition, valid permission to practice law cannot be given by the General Court except subject to the requirements for admission to the bar established by the judicial department." Opinion of the Justices, 289 Mass. 607, 612, 194 N.E. 313 (1935). See Opinion of the Justices, 279 Mass. 607, 611, 180 N.E. 725 (1932). While this directive does not prevent the Legislature from enacting laws in aid of the judicial prerogative, such laws are in all respects subject to the "ultimate power of control" of the judiciary. Collins v. Godfrey, 324 Mass. 574, 576, 87 N.E.2d 838 (1949).

The import of these decisions is that permission of the judicial department is not merely important but is essential to the right to appear as an attorney under G.L. c. 221, § 46A. The additional requirements of good standing and reciprocity spelled out in the statute are an expression of policy for the guidance of the judicial department in exercising its constitutional prerogative of controlling the practice of law in the Commonwealth. This right of a State's judiciary to regulate the practice of law has been repeatedly recognized by the United States Supreme Court. See, e.g., Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). In Leis, supra, 439 U.S. at 442-443, 99 S.Ct. at 700-701, the Court emphasized this point in the context of admissions to the bar, in ruling that there is no constitutionally protected entitlement to admission pro hac vice to a particular court and in upholding an Ohio statute which placed discretion regarding this matter in the hands of the trial judge. See also Norfolk & W. Ry. v. Beatty, 400 F.Supp. 234 (S.D.Ill.), aff'd mem., 423 U.S. 1009, 96 S.Ct. 439, 46 L.Ed.2d 381 (1975).

In the Commonwealth, the discretion permitted a trial judge is of comparable magnitude to that under the statute considered in Leis. We can find no abuse of discretion in the instant case, since there are several grounds upon which the judge could have rested her denial of the pro hac vice motion.

As an initial matter, there was no showing that the plaintiff was not adequately represented by her original, local counsel, Mr. Curtiss. Some courts have considered the availability of representation by local counsel to be highly relevant to the issue whether denials of pro hac vice motions should be overturned. See, e.g., Draganescu v. First Nat'l Bank, supra. On a related point, in the Sixth Amendment context, courts in criminal cases have emphasized that while there is a fundamental right to effective assistance of counsel which "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." Ross v. Reda, 510 F.2d 1172, 1173 (6th Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 190, 46 L.Ed.2d 124 (1975). See State v. Hunter, 290 N.C. 556, 567, 227 S.E.2d 535 (1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977). This element of adequate representation by existing counsel, when combined with the already extended procedural history of this case, may have reasonably prompted the judge to deny the motion. Again in the criminal context, where the right to counsel is at its apex, the United States Circuit Court of Appeals for the First Circuit observed: "The right to counsel of one's choice is not absolute. A court need not tolerate unwarranted delays, and may at some point require the [litigant] to go to trial even if he is not entirely satisfied with his attorney." Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.19...