Smith v. Brock

• Decision Date: 18 February 1975
• Docket Number: No. 47867,47867
• Parties: Ray Gene SMITH and Mark Schumacher, Petitioners, v. Jack BROCK, District Judge, Comanche County, Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 843

532 P.2d 843

Ray Gene SMITH and Mark Schumacher, Petitioners, v. Jack BROCK, District Judge, Comanche County, Oklahoma, Respondent.

No. 47867.

Supreme Court of Oklahoma.

Feb. 18, 1975.

Rehearing Denied March 18, 1975.

Syllabus by the Court

1. The Supreme Court of Oklahoma has inherent power to Promulgate Rules Governing the Practice of Law in this State. (Art. IV, Sec. 1, Const., 1907; Art. VII, Sec. 1, 4, Const. 1967)

2. Under the Rules Promulgated by the Supreme Court of Oklahoma Governing the Practice of Law in this State, Attorneys from other jurisdictions may be refused temporary admission to practice in Oklahoma if it appears that the Foreign Attorney has wilfully engaged in disorderly or disruptive tactics of such character as to interfere with the proper and efficient conduct of proceedings and the due administration of justice. (5 O.S.1971, Ch. 1, Appx. 1, Art. 2, Sec. 5)

3. If an attorney who is not admitted to practice in the jurisdiction of the Court petitions for admission to represent a particular defendant in a criminal case, the trial judge may deny such permission if the attorney has been adjudicated in contempt of Court, or otherwise formally disciplined for courtroom misconduct, or if it appears by reliable evidence that he has engaged in courtroom misconduct sufficient to warrant disciplinary action.

4. If a trial judge, in the exercise of sound judicial discretion, after evidentiary hearing, finds that the admission of out of state counsel is fraught with danger of abuse or potential misconduct, it is not error to deny the admission of the out of state attorney to appear pro hac vice.

5. While the Sixth and Fourteenth Amendments to the Federal Constitution assure to a defendant in a criminal case the right to legal counsel of his choosing, these Constitutional guarantees are limited to those attorneys licensed to practice in the jurisdiction where the accused stands charged, except, that when foreign counsel has been admitted pro hac vice, the admission cannot thereafter, without cause, be revoked.

6. Where record shows three prior adjudications of Direct Contempt for misconduct and the frequent appearance of Petitioner as counsel in local criminal cases, the trial court did not abuse sound judicial discretion in refusing Petitioner admittance to temporarily appear pro hac vice in defense of a criminal case.

Petitioners jointly request this Court to Assume Original Jurisdiction and Issue Writ of Mandamus Requiring Respondent District Judge of Comanche County, Oklahoma to admit an out of state Lawyer as Attorney pro hac vice, to represent co-petitioner, charged in Oklahoma with alleged felony. After Evidentiary Hearing, Respondent Judge refused to admit Petitioner Attorney to practice.

Original jurisdiction assumed. Petition for writ of mandamus denied.

Bill Sexton, Lawton, for petitioners.

Githen K. Rhoads, Rhoads & Johnson, Inc., Nicholas D. Garrett, Godlove, Joyner, Godlove, Garrett, Meyers & Davis, Inc., Lawton, for respondent.

Paul M. Vassar, Gen. Counsel, Oklahoma Bar Association, Oklahoma City, brief amicus curiae.

SIMMS, Justice.

Petitioner, Ray Gene Smith, a practicing member of the Texas Bar Association, and Petitioner Schumacher, who is informed against in the District Court of Comanche County, Oklahoma, for the crime of Possession of Marijuana with Intent to Distribute, jointly request this Court to assume original jurisdiction and issue a writ of mandamus compelling Respondent Comanche County District Judge to admit Petitioner Smith, pro hac vice (for this one occasion) to defend Schumacher in the criminal proceedings.

Schumacher is a member of the Armed Services stationed at Ft. Sill, Oklahoma, however, the place of his legal residence is not made clear in the transcript, except that he is a resident of either Oklahoma Minnesota, or Wisconsin. Following the arrest of Schumacher, on the above mentioned charge, a member of his family called the office of lawyer S., a member of the Oklahoma Bar Association who offices in Lawton, the county seat of Comanche County.

The record does not disclose with specificity whether lawyer S. then contacted Smith to assist in Schumacher's defense or whether Schumacher's relatives called Smith directly to retain Smith as Schumacher's lawyer. However, it is uncontradicted that both Oklahoma lawyer S. and Petitioner Smith were tendered and received retainer fees prior to the date of Schumacher's preliminary hearing.

When Schumacher's preliminary hearing was to be conducted before a Special District Judge of Comanche County, Smith tendered his application for admission pro hac vice. The Special District Judge then apparently conferred with an unidentified District Judge. After this purported conference, the Special District Judge continued the preliminary hearing as well as Smith's application to be admitted for the one case.

Smith's application was later presented to Respondent Judge and after an evidentiary hearing, the application to appear, pro hac vice, was denied. It is from this ruling Petitioners' seek relief by original proceedings in this Court.

The transcript of the evidentiary hearing and the unrefuted exhibits filed in the original proceedings before this Court show, inter alia, that Smith has appeared pro hac vice in thirteen separate criminal cases in Comanche County, commencing in May, 1973; has appeared in nine separate criminal cases during the calendar year 1974; that Petitioner Smith, on July 19, 1974, was adjudged to be in direct criminal contempt of the District Court of Comanche County by reason of Smith's alleged unprofessional conduct in the trial of a criminal case, in that Smith continued to repeat questions to which the court had previously sustained objections.

It is to be emphasized that Schumacher did not testify in support of Smith's application for admission pro hac vice, nor has Schumacher filed any affidavit or verified pleadings in the cause pending before this Court.

The July 19, 1974, judgment and sentence for Contempt and punishment of $500.00 fine, above mentioned, are presently on appeal to the Court of Criminal Appeals of Oklahoma.

Petitioner Smith, at the evidentiary hearing for admission pro hac vice conducted before Respondent Judge, testified that on a previous occasion, he had represented to and promised Respondent Judge that Petitioner would not represent any defendant in a criminal case whom he had not previously represented or who were not residents of Texas. The transcript of the evidentiary hearing reflects that Petitioner Smith, in answer to a question by Respondent Judge, testified that Respondent Judge either misunderstood or that Petitioner Smith was no longer going to be bound by that agreement.

Additionally, unrefuted exhibits disclose that Smith, on the 23rd day of March, 1971, was adjudicated in Contempt of Court in the 89th District Court of Wichita County, Texas, the Honorable Temple Driver, Presiding, and sentenced to a period of three days in the Wichita County Jail and ordered to pay a fine of $100.00. This contempt conviction was had by reason of Smiths' 'obstruction of justice in the trial as a result of the loud noises and disruptions he created at the door of the courtroom.' Prior to the expiration of the three day sentence of imprisonment, Judge Driver ordered Smith released. There is no showing before us that the March 23rd adjudication of contempt was ever vacated, appealed, or that the same is other than final.

Thereafter, on March 31, 1971, Ray Gene Smith was again held in Contempt of Court by Judge Driver and sentenced to three days confinement and a fine of $100.00 for the following actions which are quoted from the ORDER OF CONTEMPT signed by Judge Driver:

'One of the reasons behind this decision was my fear of the possible effects upon the jury panel of this disturbance which occurred just outside of the open door of the courtroom, and especially the possibility that the defendant could not obtain a fair trial as a result.'

'Since attorney Ray Gene Smith initiated the attack upon District Attorney Jim Phagan and without any warning struck him in the jaw with his fist, I am holding Ray Gene Smith responsible for the disruption of the trial. Therefore, he should be held in contempt of court.'

The March 31, 1971, judgment of contempt was attacked by habeas corpus in the Texas Court of Criminal Appeals, Case No. 44,119, and on May 5, 1971, the Texas Appellate Court promulgated an opinion finding no reversible error in the contempt proceedings and denied habeas corpus.

Petitioners advance two propositions in support of their application to assume original jurisdiction and prayer for mandamus. We shall treat the propositions in the order they are presented.

I. PETITIONER SMITH HAD A RIGHT TO APPEAR PRO HAC VICE UNDER THE RECIPROCAL PROVISIONS OF THE OKLAHOMA STATUTES GOVERNING ADMISSION OF OUT OF STATE ATTORNEYS.

Title 5, O.S.1971, §§ 17; 17.1; 17.2 provide, inter alia, that a lawyer who is not admitted to practice in Oklahoma, but who is a regularly admitted practicing attorney in a foreign state, may be admitted, pro hac vice, to practice in an Oklahoma judicial or quasi-judicial tribunal, upon filing written application, taking oath, and associating himself with Oklahoma counsel. 5 O.S.1971, § 17 et seq., however, are not exclusively controlling.

The inherent power of the Supreme Court of Oklahoma to control the practice of law is found in the case of In re: Integration of the State Bar of Oklahoma, 185 Okl. 302, 95 P.2d 113 (1939) in syllabus by the Court:

'1. The Supreme Court is entrusted with the power and duty to determine the qualifications for admission to the bar, and also has the power and duty to determine when those qualifications are wanting, and when the privilege of practicing law has been forfeited.

'2. The practice of law and the determination of when the right to practice has ceased are so intimately connected...