Sanders v. Russell

Decision Date18 September 1968
Docket Number25815.,No. 25797,25797
PartiesJames E. SANDERS, Petitioner, v. Honorable Dan M. RUSSELL, Judge, United States District Court for the Southern District of Mississippi, Respondent. Joan ANDERSON et al., Petitioners, v. Honorable William Harold COX, Judge, United States District Court for the Southern District of Mississippi, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Jonathan Shapiro, Jackson, Miss., John H. Schafer, Washington, D. C., for James E. Sanders.

R. L. Goza, Canton, Miss., William A. Allain, Jackson, Miss., John C. Satterfield, Yazoo City, Miss., for Judge Dan M. Russell.

Melvyn Zarr, Jack Greenberg, New York City, Anthony G. Amsterdam, Philadelphia, Pa., Paul Brest and Marian E. Wright, Jackson, Miss., William T. Coleman, Jr., Philadelphia, Pa., for Joan Anderson and others.

John C. Satterfield, Yazoo City, Miss., for Judge William Harold Cox.

Erskine W. Wells, Jackson Miss., for intervenor Miss. State Bar.

Stephen J. Pollak, Asst. Atty. Gen., Lolis E. Elie, Atty., Dept. of Justice, Washington, D. C., amicus curiæ.

Before JOHN R. BROWN, Chief Judge, DYER, Circuit Judge, and GARZA, District Judge.

DYER, Circuit Judge:

We are called upon in these mandamus proceedings to determine the validity of the rule of the United States District Court for the Southern District of Mississippi limiting the pro hac vice appearance of out of state attorneys as applied in non-fee generating civil rights cases. That rule, which was promulgated on September 26, 1967,1 imposes three limitations upon such appearances:

(1) A pro hac vice appearance by an attorney is permitted only if he is a nonresident of the State of Mississippi;

(2) A pro hac vice appearance by an attorney is permitted in only one case in any twelve month period and (3) A pro hac vice appearance by an attorney can be made only if he has been admitted to a state bar for at least five years, unless the federal district court of his home state admits Mississippi attorneys under a more lenient rule, in which event the more lenient rule applies.2

The Rule as to Nonresident Attorneys was applied to refuse admission pro hac vice in the District Court to Lawrence Aschenbrenner, an attorney employed full time by the Lawyers' Committee for Civil Rights Under Law, in a damage suit under 42 U.S.C.A. § 1983, because he had already appeared in one other case in the District Court within the preceding twelve months. Jonathan Shapiro, another Lawyers' Committee Attorney, was also prevented, by application of the Rule, from appearing pro hac vice in a similar suit, and Paul and Iris Brest, attorneys employed by the NAACP Legal Defense and Educational Fund were prevented from appearing pro hac vice in seven school desegregation suits. The applications of the latter three attorneys were denied because they were not "nonresident attorneys." The Rule, as interpreted by the respondent Judges and by the Jackson Division Attorneys' Comity Committee,3 makes the pro hac vice privilege unavailable to attorneys temporarily residing in Mississippi, and those three attorneys had been residing in Mississippi for limited periods while working for their respective civil rights organizations.

At the outset the respondents assert that this Court has no jurisdiction to entertain the petitions for mandamus because we have no supervisory power to question rules promulgated by a District Court, not inconsistent with, and adopted under authority of statute and the rules of the United States Supreme Court,4 and in any event mandamus is not the proper remedy. These arguments are patently without merit. If, and as we later make clear there is no if, the Rule is not "consistent with Acts of Congress" because it has the effect of precluding nonresident attorneys from appearing in civil rights cases under the circumstances here shown, there is no doubt of our supervisory power by the grant of a writ of mandamus to prohibit the District Court from enforcing its rule. As the Supreme Court said in La Buy v. Howes Leather Co., 1957, 352 U.S. 249, 259-260, 77 S.Ct. 309, 315, 1 L.Ed.2d 290: "We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here." While sounding the usual caveat that mandamus is an extraordinary remedy to be used under exceptional circumstances lest it become a substitute for an appeal or interlocutory appeal, we echoed in In re Watkins, 5 Cir. 1959, 271 F.2d 771, 76 A.L.R.2d 1113, what had been said in La Buy and granted the writ, finding that the "procedure (of referring the case to a special master) nullifies the right to an effective trial before a constitutional court." Id. at 775. Finally, in considering the requirement of a local rule providing inter alia for the signature by a member of the bar of the Southern District of Mississippi on a removal petition under the Civil Rights Act, we said in a mandamus proceeding that "such rules may not be allowed to operate in such a way as to abridge the right of any class of litigants to use the federal courts or to deny the Sixth Amendment right of criminal defendants to counsel of their own choice." Lefton v. City of Hattiesburg, 5 Cir. 1964, 333 F.2d 280, 285; see also Alexander v. Cox, 5 Cir. 1965, 348 F. 2d 894.

Substantial allegations were made in the petitions that the Rule affected fundamental rights and that its adoption was beyond the authority of the District Court. We do not doubt our power to grant the writ, nor that sound discretion dictates that the writ be granted.

Turning to the Rule itself, the issue is a narrow one. A summary of what is and what is not involved in this case will put the question before us in better focus. The petitioners' position is simply that they have a federal right to retain counsel of their choice who are attorneys in good standing at their respective bars and are associated with locally-admitted counsel in non-fee generating school desegregation and civil rights cases in federal court.5 This case does not involve the right of non lawyers to practice law. This case does not involve the right to practice in state courts. This case does not involve the right to general admission to a federal district court. This case does not involve the right of attorneys to be admitted pro hac vice without association with locally admitted counsel. This case does not involve fee-generating cases. This case does involve the need for free legal services in civil rights cases. Out of twenty-two hundred lawyers in Mississippi, only twelve are negroes. Of course, all twelve are not always available. This is obviously an inadequate reservoir. Moreover, there is ample evidence in the record to demonstrate the burdens of counsel handling such cases, see Note, Attorneys: Interstate and Federal Practice, 80 Harv.L.Rev. 1711, 1722 (1967), as well as the petitioners' inability to obtain representation, which, parenthetically, is borne out by literally hundreds of civil rights cases that have come to us in which out of state lawyers have had the laboring oar. It is no overstatement that in Mississippi and the South generally negroes with civil rights claims or defenses have often found securing representation difficult. Lefton v. City of Hattiesburg, supra. As the Supreme Court pointed out in N.A.A.C.P. v. Button, 371 U.S. 415, 443, 83 S.Ct. 328, 343, 9 L.Ed.2d 405,

Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers; the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation.

(Footnote omitted.)

On the showing made in this case the civil rights climate in Mississippi is not unlike that of Virginia. Furthermore, in damage cases brought by negro plaintiffs against white defendants, the slight chance of contingent fee recovery does not suggest that economic benefits are or will be such as to outweigh, for appreciable numbers of Mississippi lawyers, their reluctance to become identified with the negro civil rights effort. Under these circumstances it is imperative that a local rule not be applied in such a way as to abridge the right of civil rights litigants to use the federal court.

As we said in limine, the district courts have broad discretion in prescribing requirements for admission to practice before them in most cases, 28 U.S. C.A. § 1654, but their rules must "be consistent with Acts of Congress," 28 U.S. C.A. § 2071.

In civil rights cases, however, Congress has directed the federal courts to use that combination of federal law, common law, and state law as will be best "adapted to the object" of the civil rights laws. Rev.Stat. § 722 (1875), applying to Title XIII, Rev.Stat.; 42 U.S.C. § 1988; see 28 U.S.C. § 1443, formerly Rev.Stat. § 641 (1875); 42 U.S.C.A. § 1988 note. Therefore, a federal court is required to use common law powers to facilitate, and not to hinder,
"proceedings in vindication of civil rights." 42 U.S.C. § 1988.

Lefton v. City of Hattiesburg, supra, 333 F.2d at 284; accord, Brown v. City of Meridian, 5 Cir. 1966, 356 F.2d 602, 605. The Rule as here applied clearly contravenes the Congressional intent as embodied in the civil rights acts.

We recognize that the District Court has a valid interest in regulating the qualifications and conduct of counsel, their availability for service of court papers, and their amenability to disciplinary proceedings. See Note, Constitutional Right to Engage An Out-of-State Attorney, 19 Stan.L.Rev. 856, 866 (1967). But the assertion of the District Court's regulatory interest cannot justify a rule that limits the number of pro hac vice appearances, whether it be to one case a year or three...

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