Royal Indem. Co. v. J.C. Penney Co., Inc.

• Decision Date: 26 November 1986
• Docket Number: No. 85-2015,85-2015
• Citation: 27 OBR 447,64 A.L.R.4th 1207,27 Ohio St.3d 31,501 N.E.2d 617
• Parties: , 64 A.L.R.4th 1207, 27 O.B.R. 447 ROYAL INDEMNITY COMPANY, Appellant, v. J.C. PENNEY COMPANY, INC. et al., Appellees; Southland Stores Company et al., Appellants. VISCONSI et al., Trustees, D.B.A. Southland Stores Company, et al., Appellants, v. J.C. PENNEY COMPANY, INC., et al., Appellees. MARC GLASSMAN, INC., D.B.A. Marc's v. J.C. PENNEY COMPANY, INC. et al., Appellees; Southland Stores Company et al., Appellants.
• Court: Ohio Supreme Court

Page 31

27 Ohio St.3d 31

501 N.E.2d 617, 64 A.L.R.4th 1207, 27 O.B.R. 447

ROYAL INDEMNITY COMPANY, Appellant, v. J.C. PENNEY COMPANY, INC. et al., Appellees;

Southland Stores Company et al., Appellants.

VISCONSI et al., Trustees, D.B.A. Southland Stores Company, et al., Appellants, v. J.C. PENNEY COMPANY, INC., et al., Appellees.

MARC GLASSMAN, INC., D.B.A. Marc's v. J.C. PENNEY COMPANY, INC. et al., Appellees;

Southland Stores Company et al., Appellants.

No. 85-2015.

Supreme Court of Ohio.

Nov. 26, 1986.

Syllabus by the Court

1. A trial court may revoke the pro hac vice admission of an attorney who

has engaged in egregious misconduct which could taint or diminish the integrity of future proceedings.

2. An attorney challenging the revocation of a pro hac vice admission must demonstrate that the trial court abused its discretion.

Appellants, Royal Indemnity Company, Mission Insurance Company, Dominic A. and Tom Visconsi, Trustees, and Southland Stores Company, appeal the revocation of the pro hac vice admission of the Philadelphia law firm of Cozen, Begier & O'Connor (hereinafter "Cozen") as their counsel in the underlying actions in which they sought to determine liability for damages resulting from a fire in the J.C. Penney store at the Southland Shopping Center in Middleburg Heights, Ohio in October 1980. During discovery, appellee J.C. Penney sought to obtain blueprints and other documents from Southland Stores Co., Visconsi Management Co. and D.A. Visconsi Co. (hereinafter the "Visconsi entities"). J.C. Penney asserted that its experts needed these documents to form opinions about the cause of the fire and the reasons for its having spread into adjoining areas of the building. On January 4, 1985, at a pretrial conference, J.C. Penney served identical subpoenas duces tecum on each of the Visconsi entities ordering them to appear at a records deposition and produce all pertinent materials, including blueprints, in their possession, custody or control, or in the "custody or control * * * [of] each other person and/or entity who has acted or purported to act * * * on your behalf, whether as an * * * attorney * * * or otherwise." ¹

On several occasions in the weeks following service of the subpoenas, attorneys from Cozen made representations to the court and opposing counsel that the documents requested in the subpoenas did not exist. However, at a records deposition, an architect produced correspondence showing that the blueprints and some other documents requested by the subpoenas had been given to Cozen in 1982, and that Cozen acknowledged receipt of these documents.

On February 22, 1985, J.C. Penney moved the court to revoke the pro hac vice admission of Cozen on the basis that it deceived J.C. Penney in regard to the existence of these documents. Cozen responded that it had misunderstood the scope of investigation it was expected to undertake and did not intend to be deceptive. However, at the evidentiary hearing on these motions, Robert Meyer, an attorney with Cozen, conceded he was aware the documents were in Cozen's files when the representations were made denying their existence.

Following the evidentiary hearing the Court of Common Pleas of Cuyahoga County revoked Cozen's pro hac vice admission. The court of appeals affirmed the decision holding that "it is within the sound discretion of the court to extend or revoke the pro hac vice privilege to counsel."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Weston, Hurd, Fallon, Paisley & Howley, Louis Paisley, Cleveland, and John F. Sutton, for appellants.

Baker & Hostetler, Albert J. Knopp, Douglas P. Whipple and Harold Mead Hickok, Cleveland, for appellee J.C. Penney Company, Inc.

Gallagher, Sharp, Fulton & Norman, Alan M. Petrov, Thomas J. Kaiser and Elaine C. Hilliard, Cleveland, for appellee Rossborough Elevator Company.

WRIGHT, Justice.

This case requires us to determine the circumstances in which an attorney's pro hac vice admission can be revoked by a trial court. Attorneys admitted in other states, but not in Ohio, may request permission from the court to appear pro hac vice. ² The decision of whether to permit representation by out-of-state counsel in an Ohio court is a matter within the discretion of the trial court. State v. Ross (1973), 36 Ohio App.2d 185, 304 N.E.2d 396 ; D.H. Overmyer Co. v. Robson (C.A.6, 1984), 750 F.2d 31. Out-of-state lawyers have no absolute right under state or federal law to practice in Ohio. Leis v. Flynt (1979), 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 . Furthermore, once pro hac vice status is extended, a trial court retains the power to revoke the status. This is part of the court's inherent power to regulate the practice before it and protect the integrity of its proceedings. D.H. Overmyer Co. v. Robson, supra; Smith v. Brock (Okla.1975), 532 P.2d 843.

I

Appellants contend that revocation of an attorney's pro hac vice admission is a remedy of last resort which can only be invoked when contempt sanctions and conventional disciplinary procedures are not appropriate. We disagree.

Disciplinary proceedings, contempt sanctions and court revocation of pro hac vice privileges are distinct, but not exclusive methods of addressing attorney misconduct. Pantori, Inc. v. Stephenson (Fla.App.1980), 384 So.2d 1357. United States v. Madsen (D.Alaska 1957), 16 Alaska 651, 148 F.Supp. 625, 632. This court exercises exclusive original jurisdiction of "[a]dmission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law." Section 2(B)(1)(g), Article IV, Ohio Constitution. However, a trial court retains the "authority and duty to see to the ethical conduct of attorneys in proceedings before it * * * [and] [u]pon proper grounds it can disqualify an attorney." Hahn v. Boeing Co. (1980), 95 Wash.2d 28, 34, 621 P.2d 1263, 1266. An attorney may be subject to disciplinary proceedings by a state supreme court for the same conduct that led to a contempt citation or the revocation of his pro hac vice admission by the trial judge. In re Bailey (1971), 57 N.J. 451, 273 A.2d 563. In fact, an attorney may be disciplined in both his home state and the state in which he appeared pro hac vice. Kentucky Bar Assn. v. Shane (1977), 553 S.W.2d 467; In re Neff (1980), 83 Ill.2d 20, 46 Ill.Dec. 169, 413 N.E.2d 1282. Therefore, revocation of pro hac vice admissions, disciplinary procedures and contempt sanctions are separate and distinct methods of addressing attorney misconduct, and the appropriateness of one is not dependent on the availability of another.

II

Appellants next contend that a trial court may only disqualify an attorney from continued participation in ongoing litigation where that attorney's continued participation might unfairly affect the outcome of the litigation. This contention too narrowly restricts the inherent power of the court to protect the integrity of its proceedings. The most common basis for trial court disqualification of an attorney is the risk of a tainted trial due to an actual or potential conflict of interest. Glueck v. Jonathan Logan, Inc. (C.A.2, 1981), 653 F.2d 746, at 748. However, this is not the only ground for disqualification. The trial court's power to protect its pending proceedings includes the authority to dismiss an attorney who cannot, or will not, take part in them with a reasonable degree of propriety. Laughlin v. Eicher (D.D.C.1944), 145 F.2d 700. Similarly, attorney disqualification can be warranted in cases of truly egregious misconduct which is likely to infect future proceedings.

In State v. Kavanaugh (1968), 52 N.J. 7, 243 A.2d 225, the pro hac vice admission of defense counsel was revoked after he wrote a letter to the Governor of New Jersey claiming that the state's case was based on perjured testimony and asked the Governor to intercede therein. Since the attorney distributed the letter to numerous public officials, the court found he intended to reach the mass media and influence prospective jurors, and held that this conduct was sufficient to justify revocation of his permission to appear pro hac vice. Another attorney's pro hac vice admission was revoked for tampering with evidence. United States v. Madsen, supra. Thus, a trial court may revoke the pro hac vice admission of an attorney who has engaged in egregious misconduct which could taint or diminish the integrity of future proceedings.

A trial court has wide discretion in the exercise of its duty to supervise members of the bar appearing before it. Because the trial court's exercise of its supervisory authority is discretionary, an attorney challenging the revocation of a pro hac vice admission must demonstrate that the trial court abused its discretion. Groper v. Taff (C.A.D.C.1983), 717 F.2d 1415, 1418. Our inquiry thus narrows as to whether the trial judge committed an abuse in revoking Cozen's pro hac vice admission.

Before making its decision, the trial court gave Cozen an opportunity to respond to J.C. Penney's motion, and held an evidentiary hearing at which the parties had an opportunity to present testimony and exhibits. Uncontradicted evidence before the court showed that the attorneys from...