DiLuzio v. United Electrical, Radio & Machine Workers of America
DiLuzio v. United Electrical, Radio & Machine Workers of America
Opinion of the Court
This appeal arises from the denial of a motion by the plaintiff Anita Faye DiLuzio for the admission pro hac vice of a staff attorney from The National Right to Work Legal Defense Foundation, Inc. (foundation), to represent her along with local counsel in an action brought against the defendant labor unions. The trial judge denied the plaintiff s motion, and we granted the plaintiff’s application for direct appellate review. We find no abuse of discretion in the judge’s decision to deny the pro hac vice motion, and thus we affirm the ruling below.
This dispute over the admission of the plaintiff s out-of-State counsel is the latest skirmish in an ongoing battle between the parties concerning injuries allegedly occurring as a result of the plaintiff’s crossing a picket line maintained by the defendant unions in January, 1980. The plaintiff retained Mr. Jack D. Curtiss, a Massachusetts attorney, to represent her in the litigation. Mr. Curtiss, in turn, sought the assistance of the foundation for the purpose of both financially underwriting the litigation and contributing expertise on labor and constitutional issues. The foundation agreed to provide financial and legal assistance, and to this end two of its staff attorneys, Mr. Dannie B. Fogleman and Mr. Bruce N. Cameron, became associated with the litigation on an “of counsel” basis.
However, this time the plaintiffs motion for admission pro hac vice of the foundation’s attorney was opposed by the defendants. Both parties filed extensive briefs and supporting affidavits regarding the motion for admission. After consideration of these materials, the judge denied the motion. The plaintiff argues that the judge abused her discretion in denying the motion, and avers that the fact that the judge did not hold a formal hearing or find facts regarding the motion amounted to a denial of due process. The plaintiff also claims, as does Mr. Cameron in an amicus curiae brief, that various rights of speech and association protected under the First Amendment to the United States Constitution were infringed by the judge’s refusal to grant the pro hac vice motion.
Before reaching the substantive merits of the plaintiffs claims, we must deal with the unions’ argument that this court lacks jurisdiction to hear the plaintiffs appeal. The defendants derive this contention from the plaintiff’s failure to follow the procedures required for the review of interlocutory orders: the aggrieved party must either have the judge report the matter to the Appeals Court, G. L. c. 231, § 111, or a petition must be filed with the Appeals Court seeking relief from the order. G. L. c. 231, § 118.
To resolve the plaintiff’s arguments, we first consider the application of G. L. c. 221, § 46A, to this case. This section provides that “a member of the bar, in good standing, of any other state may appear, by permission of the court, as attorney or counselor, in any case pending therein, if such other state grants like privileges to members of the bar, in good standing, of this commonwealth. ” General Laws c. 221, § 46A, inserted by St. 1935, c. 346, § 2. Parsing the statute, its operation turns on the fulfilment of its initial condition, “permission of the court. ” The prominent placement of this statutory element is not accidental, since it is of constitutional significance: “It is inherent in the judicial department of government under the [Massachusetts] Constitution to control the practice of law . . . and as a general proposition, valid permission to practice law cannot be given by the General Court except subject to the requirements for admission to thfe bar established by the judicial depart
The import of these decisions is that permission of the judicial department is not merely important but is essential to the right to appear as an attorney under G. L. c. 221, § 46A. The additional requirements of good standing and reciprocity spelled out in the statute are an expression of policy for the guidance of the judicial department in exercising its constitutional prerogative of controlling the practice of law in the Commonwealth. This right of a State’s judiciary to regulate the practice of law has been repeatedly recognized by the United States Supreme Court. See, e.g., Leis v. Flynt, 439 U.S. 438 (1979); Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). In Leis, supra at 442-443, the Court emphasized this point in the context of admissions to the bar, in ruling that there is no constitutionally protected entitlement to admission pro hac vice to a particular court and in upholding an Ohio statute which placed discretion regarding this matter in the hands of the trial judge. See also Norfolk & W. Ry. v. Beatty, 400 F. Supp. 234 (S.D. Ill.), aff’d mem., 423 U.S. 1009 (1975).
In the Commonwealth, the discretion permitted a trial judge is of comparable magnitude to that under the statute considered in Leis. We.can find no abuse of discretion in the instant case, since there are several grounds upon which the judge could have rested her denial of the pro hac vice motion.
As an initial matter, there was no showing that the plaintiff was not adequately represented by her original, local counsel, Mr. Curtiss. Some courts have considered the availability of representation by local counsel to be highly relevant to the issue whether denials of pro hac vice motions should be overturned. See, e.g., Draganescu v. First Nat’l Bank, supra. On a related point, in the Sixth Amendment
It is also not apparent that the plaintiff will be measurably prejudiced by the denial of the motion to admit Mr. Cameron. The foundation may continue to provide financial support to the plaintiff’s case as it has in the past. In addition, Mr. Cameron could, with the court’s approval, continue to provide legal assistance to the plaintiff without serving as an attorney of record. Such assistance could include preparation of the case for trial, contributing to strategy formulation, and assisting with the drafting of filings and exhibits needed during trial. This more limited role may be all that the plaintiff has requested, since in her affidavit she stated that it is her desire that “Mr. Cameron [be allowed to] help [her] and help Mr. Curtiss because ... he specializes in the litigation of individual employee rights.”
Regardless of the existence of sufficient grounds to support the judge’s decision, the plaintiff urges that the judge’s failure to find facts or to hold a formal hearing on the motion amounted to an abuse of discretion. We do not agree. Initially it should be observed that the plaintiff did not request any findings by the judge, and only does so here on appeal. Further, although the judge did not hold formal hearings, she gave both parties ample opportunities to submit briefs, memoranda and affidavits regarding the motion for admission, and both parties did so.
We also fail to see what differentiates a pro hac vice motion from the majority of other motions dealt with by Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974), which in turn states that fact findings are “unnecessary” in this context. See Mailer v. Mailer, supra at 373; Pierce v. Board of Appeals of Carver, 3 Mass. App. Ct. 352, 353 n.4 (1975), rev’d on other grounds, 369 Mass. 804 (1976). Cf. Edmondson v. State, 383 F.2d 123, 126 (8th Cir. 1967) (interpreting Federal predecessor of Mass. R. Civ. P. 52 [a] as not requiring findings on motions to intervene); Report of Proposed Amendments to Rules of Civil Procedure, Advisory Committee Note, 5 F.R.D. 433, 471-472 (1946) (“The last sentence of Rule 52[a] as amended will remove any doubt that findings and conclusions are unnecessary upon decision of a motion . . .”). With few exceptions, the weight of precedent in the Commonwealth supports the view that a general ruling by a trial judge “imports a finding of all the subsidiary facts essential to that conclusion,” Reynolds v. Owen, 328 Mass. 451, 451-452 (1952), and that a detailed delineation of the grounds for the ruling is not generally re
The plaintiff also raises constitutional objections to the denial of her pro hac vice motion. These objections are twofold: first, that an attorney meeting the “objective” criteria of the statute (i.e., good standing and reciprocity) has an “expectancy” in admission, which cannot be taken away without due process of law; and second, that both the plaintiff and Mr. Cameron have First Amendment rights which were infringed by the court’s decision. We will deal with these contentions in turn.
We fail to see how G. L. c. 221, § 46A, creates any more of an “expectancy” than the Ohio statute reviewed by the United States Supreme Court in Leis v. Flynt, 439 U.S. 438 (1979) . The Court upheld the constitutionality of the latter statute against due process attacks, finding that the interest of out-of-State attorneys in representing local defendants is not a liberty or property interest protected by the Fourteenth Amendment to the United States Constitution. As the Court observed: “A claim of entitlement under state law, to be enforceable, must be derived from statute or legal rule or through a mutually explicit understanding. . . . 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.” Id. at 442-443. Despite its mention of good standing and reciprocity as factors to be considered by the trial judge, G. L. c. 221, § 46A, like the Ohio statute, is dominated by the discretion accorded the judge in
The plaintiff’s (and Mr. Cameron’s in his amicus brief) arguments based upon the First Amendment are equally un-compelling. They are essentially derived from a series of United States Supreme Court decisions originating with NAACP v. Button, 371 U.S. 415 (1963), which developed the broad principle that associational activities designed to promote access to the courts are protected under the United States Constitution. In Button, the Court ruled that a State could not prohibit as “solicitation” the associational activities of the NAACP; in UMW v. Illinois Bar Ass’n, 389 U.S. 217, 222 (1967), a claim that the activities of salaried attorneys in providing legal services for union members constituted the “unauthorized practice of law” was rejected; and in In re Primus, 436 U.S. 412 (1978), the right to advertise the availability of legal services was upheld. The common thread running through these cases is that a State’s interests in regulation of the local bar must occasionally yield where access to the courts is effectively being denied. However, this principle has no bearing in the instant case. The plaintiff is already adequately represented by local counsel, so there is no question of a denial of representation. Further, as we noted previously, Mr. Cameron and the foundation can continue to assist the plaintiff, either by legal or financial means. The exercise by the judge of her discretion to deny the plaintiff’s pro hac vice motion simply does not raise the same issues of freedom of association and expression considered by the United States Supreme Court in Button and its progeny. General Laws c. 221, § 46A, on its face and as applied here, does not contravene the First Amendment.
Although we find no error in this case, it should be understood that as a matter of policy a litigant should not be limited in his choice of an attorney except for serious and
The ruling by the judge denying the plaintiffs motion for admission of out-of-State counsel pro hac vice is affirmed.
So ordered.
Reference
- Full Case Name
- Anita Faye DiLuzio v. United Electrical, Radio and Machine Workers of America, Local 274 & others
- Cited By
- 16 cases
- Status
- Published