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JOHNSON v. TRUEBLOOD

July 19, 1979

GILBERT P. JOHNSON and HERVEY M. JOHNSON
v.
SAMUEL J. TRUEBLOOD, ARNOLD E. TRUEBLOOD and PENN EASTERN DEVELOPMENT COMPANY and HARVEY SALWEN



The opinion of the court was delivered by: HUYETT

MEMORANDUM AND ORDER

On July 3, 1979, on the seventy-second day of trial, *fn1" a jury returned a verdict in favor of all defendants on all remaining counts in the above-captioned case. *fn2" During those seventy-two days of trial, I was witness to certain conduct by plaintiffs' attorney, Myron M. Cherry, Esquire, who maintains an office for the regular practice of law in Chicago, Illinois. The conduct of Mr. Cherry during trial was outrageous, unprofessional, and an affront to the dignity of orderly courtroom proceedings. Mr. Cherry was granted permission to appear and conduct the trial of the instant case on behalf of plaintiffs pro hac vice pursuant to Local Rule of Civil Procedure 10(b) at the time the suit was instituted in early 1976. In light of Mr. Cherry's conduct throughout the trial, I now revoke that grant of permission to appear pro hac vice and order that Mr. Cherry cease from active participation in the conduct of this action before this Court, effective as of the close of trial itself. *fn3" I do not take this action lightly, but after careful, considered reflection.

 My power to revoke a pro hac vice appearance at the close of trial is clear, especially in circumstances where the conduct of counsel has, as in this case, exceeded the bounds of proper conduct set by the Code of Professional Responsibility (the "Code"). Local Rule 9(a) limits the admission to the Bar of this Court to attorneys admitted to practice in the Supreme Court of the United States or the Supreme Court of Pennsylvania and who maintain an office in the Commonwealth of Pennsylvania for the regular practice of law. Mr. Cherry is not admitted to the Bar of the Eastern District of Pennsylvania, and does not maintain an office in Pennsylvania for the regular practice of law. An attorney not admitted to the Bar of this Court may not conduct the trial of an action in this district without the permission of the Court. Local Rule of Civil Procedure 9(a) and 10(b). Permission to proceed pro hac vice *fn4" is not a right, but rather it is a privilege granted by courtesy and grace. See, e.g., In Re Belli, 371 F. Supp. 111 (D.D.C.1974); Thomas v. Cassidy, 249 F.2d 91 (4th Cir. 1957); Atchison, T. & S. F. R. R. Co. v. Jackson, 235 F.2d 390 (10th Cir. 1956). Cf. Leis v. Flynt, 439 U.S. 438, 99 S. Ct. 698, 58 L. Ed. 2d 717 (1979) (the right of an out-of-state attorney to appear pro hac vice does not fall among those interests protected by the United States Constitution). In Thomas v. Cassidy, the Court of Appeals for the Fourth Circuit stated succinctly:

 
It is well settled that permission to a nonresident attorney, who has not been admitted to practice in a court, to appear pro hac vice in a case there pending is not a right but a privilege, the granting of which is a matter of grace resting in the sound discretion of the presiding judge.

 249 F.2d at 92.

 This case differs somewhat from Thomas, supra, and Jackson, supra, in that Mr. Cherry was previously granted permission to proceed pro hac vice, and I now revoke that permission. These facts more closely resemble those in In Re Belli, supra, where an out-of-state attorney was initially permitted to proceed pro hac vice in the trial of an action. Following the completion of trial, the grant of a new trial, and the reassignment of the case to another judge of that same district, counsel renewed his motion to proceed pro hac vice. The trial judge denied the motion based upon false public statements made by counsel concerning the judiciary in that district, which the court believed were made recklessly and in violation of the Code. Id. at 114 and n. 8.

 Similarly, I believe that I have the power, mea sponte, to revoke my grant of permission to proceed pro hac vice, where the actions of counsel disrupt the proper functioning of the Court and violate the Code. *fn5" While it may well be true that permission to proceed pro hac vice, once granted, may not be revoked absent a showing of "cause," Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950); But see Leis v. Flynt, supra, the trial court judge of necessity retains the inherent power to revoke that permission where the attorney behaves in a disruptive and unprofessional manner. Cf. Atchison, T. & S. F. R. R. Co. v. Jackson, supra at 393. This power flows inexorably from the trial judge's obligation to ensure a dignified and orderly trial and to protect and further the untrammeled administration of justice.

 I would further note that, faced with unprofessional conduct by an attorney who is not a member of the Bar of this Court, a trial judge has few alternatives. An attorney who appears pro hac vice is not subject to disciplinary proceedings before the Board of Censors of this Court, since the jurisdiction of that body is limited to "members of the Bar of this Court." Local Rule of Civil Procedure 13(c). Cf. Leis v. Flynt, supra. Furthermore, an attorney appearing pro hac vice, who does not regularly appear before a tribunal, is not subject to the stricture which most commonly restrains unprofessional conduct in the courtroom: the desire not to antagonize a judge where it is likely that one will have another case before that judge in the future. Absent these restraints on pro hac vice counsel, the trial judge who is faced with unprofessional conduct has little choice but to revoke permission to proceed pro hac vice from an out-of-state attorney who abuses the privilege he has been granted.

 I conclude that I am here faced with conduct of counsel which was disruptive and unprofessional. In light of the foregoing, I will now describe certain actions and events which form the basis of my conclusion.

 I.

 I start with the general observation that, in order for the judicial process to function properly, several predicates are essential. There must be courtesy and respect among counsel; for although counsel must be zealous in representing their clients, it is absolutely critical that the representations of counsel be accurate and trustworthy, and that counsel be willing and able to reach agreement on the myriad of nonessential matters arising during a trial without necessity of recourse to the trial judge. There must be good faith adherence to the rules of evidence and procedure. There must be an absence of "dirty tricks" and tactics designed solely for harassment. Most important, there must be order, rationality, and respect for judicial rulings. "Trial judges in court, like umpires at home plate, cannot always be right, but rulings they must make." Commonwealth of Pennsylvania v. Local 542, International Union of Operating Engineers, 73 F.R.D. 544, 546 (E.D.Pa.1976). Our system is built upon the assumption that these rulings will be respected, and that counsel will adhere to the limits set by the judge, resorting to the orderly process of appeal if counsel believes the rulings to be in error. Otherwise, the trial process disintegrates into anarchy and trial by ordeal. In the words of Chief Justice Burger,

 
Ethics and deportment, manners in the courtroom, where it is so visible, are not merely matters of protocol. Those are the lubricants which keep our adversary system from becoming a barroom brawl.

 Remarks by the Honorable Warren E. Burger to the Judicial Conference of the District of Columbia Circuit (May 22, 1978), Reprinted at 81 F.R.D. 118 at 272, 274.

 In this case, those essential predicates were lacking. At the outset of trial, counsel for plaintiffs, Mr. Cherry, estimated that the liability portion of the trial would last approximately four weeks, or twenty trial days. In fact, the first witness, plaintiff Gilbert Johnson, was on the witness stand for twenty-two days, while the entire liability phase of the trial consumed seventy-two days. Even allowing for the well-known propensity of lawyers to underestimate the time necessary to try a ...


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