Leis v. Flynt

Petitioners, the judges of the Court of Common Pleas of Hamilton County, Ohio, and the Hamilton County prosecutor, seek relief from a decision of the United States Court of Appeals for the Sixth Circuit. The Court of Appeals upheld a Federal District Court injunction that forbids further prosecution of respondents Larry Flynt and Hustler Magazine, Inc., until respondents Herald Fahringer and Paul Cambria are tendered a hearing on their applications to appear pro hac vice in the Court of Common Pleas on behalf of Flynt and Hustler Magazine. Petitioners contend that the asserted right of an out-of-state lawyer to appear pro hac vice in an Ohio court does not fall among those interests protected by the Due Process Clause of the Fourteenth Amendment. Because we agree with this contention, we grant the petition for certiorari and reverse the judgment of the Sixth Circuit.

Flynt and Hustler Magazine were indicted on February 8, 1977, for multiple violations of Ohio Rev. Code Ann. § 2907.31 (1975), which prohibits the dissemination of harmful material to minors. At the arraignment on February 25, local counsel for Flynt and Hustler presented an entry of counsel form that listed Fahringer and Cambria as counsel for both defendants. Neither lawyer was admitted to practice law in Ohio. The form was the one used by members of the Ohio Bar, and it neither constituted an application for admission pro hac vice nor alerted the court that Fahringer and Cambria were not admitted to practice in Ohio. The judge presiding at the arraignment routinely endorsed the form but took no other action with respect to the two out-of-state lawyers.

The case was transferred as a matter of course to Judge Morrissey, who had before him another active indictment against Flynt and Hustler Magazine. Fahringer and Cambria made no application for admission pro hac vice to him or any other judge. At a pretrial conference on March 9 Judge Morrissey advised local counsel that neither out-of-state lawyer would be allowed to represent Flynt or Hustler Magazine. Fahringer and Cambria appeared in person before Judge Mor-rissey for the first time at a motions hearing on April 8, where they expressed their interest in representing the defendants. Judge Morrissey summarily dismissed the request. Respondents then commenced a mandamus action in the Ohio Supreme Court seeking to overturn the denial of admission. They also filed an affidavit of bias and prejudice seeking to remove Judge Morrissey from the case. The Ohio court dismissed the mandamus action but did remove Judge Morrissey, stating that while it found no evidence of bias or prejudice, trial before a different judge would avoid even the appearance of impropriety. The new trial judge ruled that the Ohio Supreme Court’s dismissal of the mandamus action bound him to deny Fahringer and Cambria permission to represent Flynt and Hustler Magazine, but he did allow both of them to work with in-state counsel in preparing the case.

Respondents next filed this suit in the United States District Court for the Southern District of Ohio to enjoin further prosecution of the criminal case until the state trial court held a hearing on the contested pro hac vice application. The court ruled that the lawyers’ interest in representing Flynt and Hustler Magazine was a constitutionally protected property right which petitioners had infringed without according the lawyers procedural due process. 434 F. Supp. 481 (1977). Further prosecution of Flynt and Hustler Magazine therefore was enjoined until petitioners tendered Fah-ringer and Cambria the requested hearing. The Sixth Circuit affirmed, holding that the lawyers could not be denied the privilege of appearing pro hac vice “without a meaningful hearing, the application of a reasonably clear legal standard and the statement of a rational basis for exclusion.” 574 F. 2d 874, 879 (1978).

As this Court has observed on numerous occasions, the Constitution does not create property interests. Rather it extends various procedural safeguards to certain interests “that stem from an independent source such as state law.” Board of Regents v. Roth, 408 U. S. 564, 577 (1972); see Memphis Light, Gas & Water Div. v. Graft, 436 U. S. 1, 9 (1978); Bishop v. Wood, 426 U. S. 341, 344 (1976); Paul v. Davis, 424 U. S. 693, 709-710 (1976); Goss v. Lopez, 419 U. S. 565, 572-574 (1975); Perry v. Sindermann, 408 U. S. 593, 602 n. 7 (1972). The Court of Appeals evidently believed that an out-of-state lawyer’s interest in appearing pro hac vice in an Ohio court stems from some such independent source. It cited no state-law authority for this proposition, however, and indeed noted that “Ohio has no specific standards regarding pro hac vice admissions . . . .” 574 F. 2d, at 879. Rather the court referred to the prevalence of pro hac vice practice in American courts and instances in our history where counsel appearing pro hac vice have rendered distinguished service. We do not question that the practice of courts in most States is to allow an out-of-state lawyer the privilege of appearing upon motion, especially when he is associated with a member of the local bar. In view of the high mobility of the bar, and also the trend toward specialization, perhaps this is a practice to be encouraged. But it is not a right granted either by statute or the Constitution. Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers.

A claim of entitlement under state law, to be enforceable, must be derived from statute or legal rule or through a mutually explicit understanding. See Perry, supra, at 601-602. The record here is devoid of any indication that an out-of-state lawyer may claim such an entitlement in Ohio, where the rules of the Ohio Supreme Court expressly consign the authority to approve a pro hac vice appearance to the discretion of the trial court. N. 2, supra. Even if, as the Court of Appeals believed, respondents Fahringer and Cam-bria had “reasonable expectations of professional service,” 574 F. 2d, at 879, they have not shown the requisite mutual understanding that they would be permitted to represent their clients in any particular case in the Ohio courts. The speculative claim that Fahringer’s and Cambria’s reputation might suffer as the result of the denial of their asserted right cannot by itself make out an injury to a constitutionally protected interest. There simply was no deprivation here of some right previously held under state law. Id., at 708-709.

Nor is there a basis for the argument that the interest in appearing pro hac vice has its source in federal law. See Paul v. Davis, supra, at 699-701. There is no right of federal origin that permits such lawyers to appear in state courts without meeting that State’s bar admission requirements. This Court, on several occasions, has sustained state bar rules that excluded out-of-state counsel from practice altogether or on a case-by-case basis. See Norfolk & Western R. Co. v. Beatty, 423 U. S. 1009 (1975), summarily aff’g 400 F. Supp. 234 (SD Ill.); Brown v. Supreme Court of Virginia, 414 U. S. 1034 (1973), summarily aff’g 359 F. Supp. 549 (ED Va.). Cf. Hicks v. Miranda, 422 U. S. 332, 343-345 (1975). These decisions recognize that the Constitution does not require that because a lawyer has been admitted to the bar of one State, he or she must be allowed to practice in another. See Ginsburg v. Kovrak, 392 Pa. 143, 139 A. 2d 889, appeal dismissed for want of substantial federal question, 358 U. S. 52 (1958). Accordingly, because Fahringer and Cambria did not possess a cognizable property interest within the terms of the Fourteenth Amendment, the Constitution does not obligate the Ohio courts to accord them procedural due process in passing on their application for permission to appear pro hac vice before the Court of Common Pleas of Hamilton County.

The petition for writ of certiorari is granted, the judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Me. Justice White would grant certiorari and set the case for oral argument.

Petitioners also contend that the injunction violates principles of abstention embodied in our decisions in Younger v. Harris, 401 U. S. 37 (1971); Stefanelli v. Minard, 342 U. S. 117 (1951); and Douglas v. City of Jeannette, 319 U. S. 157 (1943). Because of our disposition of the merits of this case, we think it unnecessary to consider that issue.

The practice of law in Ohio is governed by Ohio Rev. Code Ann. §4705.01 (1977), which provides in pertinent part:

“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.”

Rule I, § 8 (C), of the Supreme Court Rules for the Government of the Bar of Ohio determines when out-of-state attorneys may-appear pro hac vice in Ohio courts:

“Admission Without Examination.

“(C) 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.”

The District Court found that Fahringer and Cambria had appeared on behalf of Flynt and Hustler Magazine in other criminal proceedings before the Hamilton County Court of Common Pleas, apparently without being required to do more than they did here. 434 F. Supp. 481, 483 (SD Ohio 1977). This prior experience might explain why the local lawyer did not alert the court that Fahringer and Cambria were not admitted to practice in Ohio, but it does not indicate that the first Judge’s endorsement of the entry form, without more, constituted leave for a pro hac vice appearance. Although the District Court found that the manner in which Fahringer and Cambria sought leave for an appearance comported with the “customary” procedures of the court, ibid., it made no finding that these lawyers justifiably relied on any official explanation of these procedures or had any other ground for believing -they actually had received leave of the court to appear.

The dissenting opinion relies heavily on dictum in Spanos v. Skouras Theatres Corp., 364 F. 2d 161 (CA2 1966). The facts of that case were different from those here, and the precise holding of the court was quite narrow. The court ruled that where a client sought to defend on the ground of illegality against an out-of-state attorney’s action for his fee, and where the illegality stemmed entirely from the failure of the client’s in-state attorneys to obtain leave for the out-of-state attorney to appear in Federal District Court, the client would not be allowed to escape from the contract through his own default. Id., at 168-169. The balance of the opinion, which declared that “under the privileges and immunities clause of the Constitution no state can prohibit a citizen with a federal claim or defense from engaging an out-of-state lawyer to collaborate with an in-state lawyer and give legal advice concerning it within the state,” id., at 170, must be considered to have been limited, if not rejected entirely, by Norfolk & Western R. Co. v. Beatty, 423 U. S. 1009 (1975).

The dissenting opinion also suggests that a client’s interest in having out-of-state counsel is implicated by this decision. Post, at 445-446, n. 2. The court below, however, “did not reach the issue of whether the constitutional rights of Flynt and Hustler Magazine had also been violated,” 574 F. 2d 874, 877 (CA6 1978), recognizing as it did that a federal-court injunction enjoining a state criminal prosecution on a ground that could be asserted by the defendant in the state proceeding would conflict with this Court’s holding in Younger v. Harris, 401 U. S. 37 (1971).

The dissenting opinion of MR. Justice SteveNS argues that a lawyer’s right to “pursu[e] his calling is protected by the Due Process Clause . . . when he crosses the border” of the State that licensed him, post, at 445. Mr. Justice SteveNS identifies two “protected” interests that “reinforce” each other. These are said to be “the 'nature’ of the interest in pro hac vice admissions [and] the 'implicit promise’ inhering in Ohio custom.” Post, at 456.

The first of these lawyer’s “interests” is described as that of “discharging [his] responsibility for the fair administration of justice in our adversary system.” Post, at 453. As important as this interest is, the suggestion that the Constitution assures the right of a lawyer to practice in the court of every State is a novel one, not supported by any authority brought to our attention. Such an asserted right flies in the face of the traditional authority of state courts to control who may be admitted to practice before them. See Norfolk & Western B. Co. v. Beatty, supra; ABA Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement 13-14 (Final Draft 1970). If accepted, the constitutional rule advanced by the dissenting opinion would prevent those States that have chosen to bar all pro hac vice appearances from continuing to do so, see, e. g., Cal. Bus. & Prof. Code Ann. §§ 6062, 6068 (West 1974 and Supp. 1978); and would undermine the policy of those States which do not extend reciprocity to out-of-state lawyers, see, e. g., Ariz. Sup. Ct. Rule 28 (c) I; Fla. Rules of the Sup. Ct. Relating to Admissions to the Bar, Art. I, § 1.

The second ground for due process protection identified in the dissenting opinion is the “implicit promise” inherent in Ohio’s past practice in “assur[ing] out-of-state practitioners that they are welcome in Ohio’s courts. . . .” Post, at 456, 453. We recall no other claim that a constitutional right can be created — as if by estoppel — merely because a wholly and expressly discretionary state privilege has been granted generously in the past. That some courts, in setting the standards for admission within their jurisdiction, have required a showing of cause before denying leave to appear pro hac vice provides no support for the proposition that the Constitution imposes this “cause” requirement on state courts that have chosen to reject it.