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Cooper v. Hutchinson.

decided.: July 21, 1950.

COOPER ET AL.
v.
HUTCHINSON.



Author: Goodrich

Before GOODRICH, WOODBURY, and KALODNER, Circuit Judges.

GOODRICH, Circuit Judge.

This litigation seeks an injunction against a trial judge in a state court of New Jersey which would prohibit further proceedings in a capital case before him unless certain out-of-state lawyers are permitted to act as counsel for the defendants therein.

No disputed question of fact arises; the question at this point is wholly one of law. The record consists only of the complaint and supporting affidavits, a motion by the defendant to dismiss and a motion by the plaintiffs for a temporary injunction. The complaint was dismissed by the District Court and the motion for a temporary injunction denied. D.C.N.J.1950, 88 F.Supp. 774. The plaintiffs have appealed.

The appellants were tried and convicted of the crime of murder in a state court of New Jersey and were sentenced to death.They were represented by court-appointed counsel. Following their conviction, certain other lawyers were substituted as counsel in place of the original lawyers at the request of the appellants. The substituted lawyers were Solomon Golat and Clarence Talisman, both of the New Jersey bar, and O. John Rogge, William L. Patterson and Emanuel H. Bloch, all of the New York bar. The out-of-state lawyers were admitted pro hac vice in the Supreme Court of New Jersey and later in the Mercer County Court, where the murder charge was being prosecuted. The appellate proceedings on behalf of the convicted persons before the Supreme Court of New Jersey resulted in a reversal. State v. Cooper, 1949, 2 N.J. 540, 67 A.2d 298. The case was remanded to the trial court and the out-of-state lawyers, with local counsel, proceeded with various motions and other preliminary matter prior to a retrial of the murder charge. On December 16, 1949, the trial judge, who is the defendant in this litigation, entered an order depriving Messrs. Rogge, Patterson and Bloch of further authority to appear in the murder case. There was no hearing, there was no charge of misconduct so far as the record shows. All we have is the complaint filed in the District Court by the appellants, which alleges that the removal was "summary, arbitrary, capricious and unreasonable." The plaintiffs also allege that the out-of-state attorneys conducted their defense "in a competent and ethical fashion, and conformed without reservation to all canons of ethics prescribed by the American Bar Association and the rules and regulations of the Courts of New Jersey * * *." At this stage of the proceedings, of course, we must assume the truth of these allegations. The appellants then sought an injunction in the federal court for the district of New Jersey to prohibit the trial judge from proceeding further with the case until he allowed the lawyers mentioned to represent them, and to enjoin the trial judge from refusing to recognize the out-of-state lawyers.

These appellants say that they have been deprived of due process of law by the action of the New Jersey trial judge. To deprive them of due process of law is, of course, a violation of the Fourteenth Amendment.*fn1 The appellants point to the Sixth Amendment,*fn2 which guarantees the assistance of counsel in trials in the federal courts, and to our own decision in United States v. Bergamo, 3 Cir., 1946, 154 F.2d 31, holding that the right to counsel in a federal criminal proceeding includes the right to out-of-state counsel of the defendant's own choosing. The appellants also say that in the Bergamo case we held that the right to counsel of one's choice is a requirement of due process of law under the Fifth Amendment,*fn3 and must necessarily be included within the rights protected by the due process clause of the Fourteenth. See 154 F.2d at page 34, fn. 2. The conclusion of the appellants' argument is that the rule we laid down in the Bergamo case for federal courts in this circuit is a necessary requirement of due process of law and therefore applicable to all capital trials in state courts as well. The authority relied upon is the line of decisions which began with Powell v. Alabama, 1932, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527.

The next step in the appellants' case is to bring in the very strong provisions of Section 1 of the Civil Rights Act of 1871, Rev.Stat. § 1979 (1875), 8 U.S.C.A. § 43.*fn4 This lays the foundation, the argument runs, for direct action against the state officer by whose official act the constitutional rights of the appellants have been invaded. See Picking v. Pennsylvania R. Co., 3 Cir., 1945, 151 F.2d 240, 250-251.

The argument for the appellants thus necessarily goes far beyond an insistence that a man charged with a capital crime in a state court must have the assistance of counsel. These appellants have had the service of counsel all the way through the prosecution of the charges against them. The narrower question here is the extent to which an accused person's choice of counsel is a constitutional right. The argument insists that there is a constitutional right, at least in a capital case, to whatever counsel an accused person pleases to have. If that counsel is not a member of the bar of the state where the prosecution is being conducted, still, the argument runs, the accused may effectively choose him just as freely as he could choose a lawyer admitted to practice locally. The person chosen by the accused may then insist upon conducting the defense in the local courts. Control by the states over the persons who may be licensed to practice law in their courts would thus be greatly diminished in every capital criminal prosecution where the accused desires counsel from somewhere else.

The length to which this argument takes one is startling. It has always been thought that the license to practice law is limited, except as a matter of grace, to persons who had fulfilled the local requirements for practice. The Civil Rights Act provision relied upon here is a powerful piece of legislation and its power has been recognized by this Court.*fn5 But we have never been asked to take it this far. The Bergamo case, which has been pressed upon us, is not conclusive here, for in that case we were only laying down qualifications for the trial of cases in the federal courts of this circuit.

To determine the immediate litigation, however, we need not go to the length which the argument for the appellants invites us to go.When occasion demands it we shall face and decide the broad question. But the occasion does not require it here. These lawyers whose right to represent the appellants has been denied were not interlopers. As the statement of facts above indicates, they were associated with local counsel. And they were admitted pro hac vice in accordance with a custom that was apparently recognized as early as 1629 by English judges of Common Pleas.*fn6 This custom of permitting the appearance of out-of-state lawyers had become "general" and "uniform" in the United States as early as 1876.*fn7 Moreover, the practice is expressly recognized by the new rules which have been promulgated by the Supreme Court of New Jersey to govern practice and procedure in the courts of that state.*fn8

We think it clear that limited to one case though the right of these attorneys to practice was, their standing with respect to this case was no different from that of any other regularly admitted local lawyer. The New Jersey rule itself provides that they may appear "to speak in such cause in the same manner as an attorney or counsellor of this State." While admission pro hac vice is stated in the rule to be in the discretion of the court, the rights and duties of an outside lawyer, once so admitted, appear to be the same as those of a local lawyer. We think that admission pro hac vice, as the rule seems to indicate, is for the entire "cause" and that counsel so admitted in a capital case cannot be arbitrarily and capriciously removed without depriving their clients of rights conferred by the constitution.

Our view of the rights of a lawyer once engaged in a given case is supported by the decision of the former Supreme Court of New Jersey in Faughnan v. City of Elizabeth, 1895, 58 N.J.L. 309, 33 A. 212. In that case it was held that a properly admitted attorney who commences a lawsuit may continue to represent his client throughout the course of that litigation even though the attorney subsequently becomes ineligible for practice in New Jersey by moving away. "Removal of residence, therefore, does not deprive the attorney of the powers conferred by his original warrant of attorney until his client, of his own motion, * * * substitutes another in his place as attorney." 58 N.J.L. at page 311, 33 A. at page 213.

There are numerous instances in the law where one, through voluntary action by another, acquires rights which he did not have before. Thus while one has no obligation to open his premises to a social guest, once he has done so the guest is entitled to warning of hidden dangers in the premises known to the occupier (Restatement, Torts § 342) and the latter is under a duty to use reasonable care not to hurt his licensee (Restatement, Torts § 341). Nor can the occupier summarily revoke the permission and eject his no longer welcome visitor into a situation of danger. Depue v. Flatau, 1907, 100 Minn. 299, 111 N.W. 1, 8 L.R.A.,N.S., 485. And one who gratuitously undertakes to do something for or to another must use reasonable care not to leave the other worse off as a result of the voluntary intervention. Restatement, Torts §§ 323-325; Black v. New York, N.H. & H.R. Co., 1907, 193 Mass. 448, 79 N.E. 797, 7 L.R.A.,N.S., 148, 9 Ann.Cas. 485.

These analogies are obviously not conclusive of the present case. But they do show that rights may be acquired by one from action by another, even though that action could not be legally demanded. Assuming that these accused persons could not have claimed representation by out-of-state lawyers as a constitutional ...


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