State v. Ross, 72AP-229

• Citation: 36 Ohio App.2d 185,304 N.E.2d 396,65 O.O.2d 316
• Decision Date: 20 March 1973
• Docket Number: No. 72AP-229,72AP-229
• Parties: , 65 O.O.2d 316 The STATE of Ohio, Appellee, v. ROSS, Appellant.
• Court: United States Court of Appeals (Ohio)

Page 185

36 Ohio App.2d 185

304 N.E.2d 396, 65 O.O.2d 316

The STATE of Ohio, Appellee, v. ROSS, Appellant.

No. 72AP-229.

Court of Appeals of Ohio, Tenth District, Franklin County.

March 20, 1973.

Syllabus by the Court

1. The constitutional right to be represented by counsel may be limited by a state to those persons admitted to practice in such state, unless there is no such competent counsel available.

2. Whether to permit representation by out-of-state counsel in addition to competent Ohio counsel is a matter lying within the

sound discretion of the court, and where responses of such out-of-state counsel to an inquiry by the court justifies the court in concluding that such counsel will not comply with the standards established by Canon 7 of the Code of Professional Responsibility, the court does not abuse its discretion in denying representation by such out-of-state counsel.

3. Where an accused is lawfully denied the right to be represented by out-of-state counsel, his refusal to proceed with his retained competent Ohio attorney is a waiver of his constitutional right to counsel.

James J. Hughes, Jr., City Atty., Daniel W. Johnson, City Pros., and Carl T. Wolfrom, Columbus, for appellee.

R. Raymond Twohig, Jr., Columbus, for appellant.

WHITESIDE, Judge.

This is an appeal from a judgment of the Franklin County Municipal Court.

Defendant was arrested on May 25, 1971, during a disturbance at Linden-McKinley High School in Columbus, Ohio. Three affidavits were filed against defendant as an outgrowth of this incident: (1) that he wilfully obstructed impeded and hampered the lawful operations of the safety director of the city of Columbus at the scene of an emergency, in violation of R.C. 2923.43; (2) that he did, on May 25, 1971, upon being notified to depart from the premises of Linden-McKinley High School by a servant of said school, neglect and refuse to depart therefrom, in violation of R.C. 2909.21; and (3) that he, on the same date, did unlawfully assault Richard F. Dimel, in violation of R.C. 2901.25.

Defendant was originally represented by attorneys Bruce A. Campbell and William E. Boyland, and a pretrial was held on June 25, 1971. At this pretrial, motions filed by defendant were discussed and it was agreed that the case would not be assigned for trial until after the middle of September, 1971. The trial did not take place at that time and a second pretrial was held on March 10, 1972. At this time, R. Raymond Twohig, Jr., was added as one of the attorneys for defendant, and a motion was made to permit Mr. William Kunstler, an attorney in another state not admitted to practice in Ohio, to also appear on behalf of defendant, and also to permit the defendant to represent himself as co-counsel with the other counsel. Additional motions were also filed on behalf of defendant, and the case was set for trial on Monday, April 24, 1972. The motions to permit Mr. Kunstler to appear as one of the attorneys for defendant was overruled, as was the motion to permit defendant to act as his own co-counsel.

The trial did not take place April 24, 1972, due in part to successful efforts on the part of defendant to have the trial judge presiding over the case replaced. A trial judge was selected by lot, and the case proceeded to trial on July 10, 1972. Prior to trial, the trial judge reviewed all the motions filed on behalf of defendant and reached the same conclusions as were originally reached. The new trial judge, Judge Reda, listened to extensive arguments on behalf of permitting Mr. Kunstler to represent defendant, and on the day of trial again overruled the motion. Defendant, thereupon, dismissed and discharged his three Ohio counsel, but the trial proceeded nevertheless. The trial resulted in a jury verdict of guilty to all three charges.

Defendant appeals raising four assignments of error as follows:

'1. The trial court's refusal to permit defendant to be represented by his experienced out-of-state attorney who is a member in good standing of numerous federal and state bars, and who stands convicted of no contempt of court and is without a disciplinary blemish on his record during years at the bar, violated defendant's right to counsel of his choice under the Sixth and Fourteenth Amendments of the United States Constitution, as well as Article I, Section 10 of the Ohio Constitution, as well as the First Amendment of the United States Constitution, and was without factual or legal basis.

'2. The failure of the trial judge to treat as void the prior rulings in this case of another municipal judge who had been disqualified due to bias and prejudice and especially those rulings made after the filing of the Affidavit of Prejudice, violates the right to due process protected by the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, as well as Section 2937.20 of the Ohio Revised Code.

'3. The arrest of appellant for a misdemeanor by the Director of Public Safety is contrary to Section 2935.03 of the Ohio Revised Code.

'4. The conviction for failure to depart after being told to do so by Bruce P. Hennick is not supported by any evidence that Bruch (sic) P. Hennick instructed defendant to leave the premises in question.'

By his first assignment of error, defendant contends that the Sixth and Fourteenth Amendments to the United States Constitution, and Section 10, Article I of the Ohio Constitution give to him the right to be represented by any counsel of his choice, whether or not such counsel is an attorney admitted to practice in Ohio. Each state has the right to regulate the practice of law within its jurisdiction, and to require that a person be admitted to practice by that state before he may be permitted to act as the attorney for any person in that state, including representation in a criminal matter. Thus, the constitutional right to representation by counsel is limited, with regard to the states, to counsel admitted to practice in that state, unless no competent counsel so admitted is available. Defendant makes no contention that the three Ohio attorneys representing him were not competent to do so.

The general policy of Ohio is expressed in R.C. 4705.01 as follows:

'No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which he is not a party concerned, either by using or subscribing his own name, or the name of another person, unless he has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules. Admission to the bar shall entitle such person to practice before any court or administrative tribunal without further qualification or license.'

It has, however, been generally recognized that an attorney not admitted to practice in Ohio, but in good standing in another state, may be specially admitted for the purpose of representing a person in a particular case, be it civil or criminal. Whether or not so to specially permit an attorney not admitted to practice in Ohio, but admitted to practice and in good standing in another state, to represent a party in a particular action, is a matter lying within the sound discretion of the trial court. Thus, we must determine whether there has been an abuse of discretion in this instance.

While R.C. 4705.01 does not specifically provide for such special permission of out-of-state attorneys to appear in litigation in Ohio, it is recognized by Section 8(C) of Gov.R. 1, as follows:

'An applicant under this section shall not engage in the practice of law in this state prior to the filing of his application To do so constitutes the unauthorized practice of law and will result in a denial of the application. This paragraph (C) does not apply to participation by a nonresident of Ohio in a cause being litigated in this state when such participation is with leave of the judge hearing such cause.'

This practice also is recognized by the ethical considerations of Canon 3 of the Code of Professional Responsibility, adopted by the Supreme Court of Ohio. EC 3-9 provides as follows:

'Regulation of the practice of law is accomplished principally by the respective states. Authority to engage in the practice of law conferred in any jurisdiction is not per se a grant of the right to practice elsewhere, and it is improper for a lawyer to engage in practice where he is not permitted by law or by court order to do so. However, the demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states. In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice.'

Notice should also be made of the disciplinary rules of Canon 3, DR 3-101(B) of which provides that:

'A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.'

In Parker v. Parker (Fla.App.1957), 97 So.2d 136, the court interpreted the rule of the Florida Supreme Court providing that 'A practicing attorney of another state, in good standing, who had professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it is made to appear that he has associated and appearing with him in such business an active member of The Florida Bar.' The court at 137, expressly held: 'The right of an attorney of another state to practice is permissive and subject to the sound discretion of the court to which he applies for the permission.' The Supreme Court of New...