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JOHNSON v. SAMUEL J. TRUEBLOOD (07/31/80)

decided: July 31, 1980; As Amended August 25, 1980.

JOHNSON, GILBERT P. AND JOHNSON, HERVEY M.
v.
SAMUEL J. TRUEBLOOD, ARNOLD E. TRUEBLOOD, HARVEY I. SALWEN, AND PENN EASTERN DEVELOPMENT COMPANY GILBERT JOHNSON AND HERVEY JOHNSON, INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF PENN EASTERN DEVELOPMENT CORPORATION, PLAINTIFFS ABOVE NAMED AND THEIR COUNSEL PRO HAC VICE BELOW, MYRON M. CHERRY, APPELLANTS*FN*



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 76-1002)

Before Seitz, Chief Judge, and Rosenn and Higginbotham, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

The plaintiffs, Hervey and Gilbert Johnson, and their Chicago attorney, Myron M. Cherry, appeal an order of the district court revoking Cherry's pro hac vice status. The facts of the underlying suit between the plaintiffs and the various defendants are set out in our opinion in the separate appeal in No. 79-1892. See Johnson v. Trueblood, 629 F.2d 287 (3d Cir.1980). On July 3, 1979, the jury gave a verdict for the defendants. On July 6, the notice of appeal was filed in No. 79-1892. On July 19, without any prior notice or a hearing, the district court sua sponte revoked Cherry's pro hac vice status retroactively to the date of the verdict.*fn1 The revocation was based on the attorney's conduct during the trial.

I.

We initially consider our jurisdiction to hear the appeal by an attorney and his clients of an order revoking the attorney's pro hac vice status. As to the attorney, we conclude that the revocation order is appealable as a final order under 28 U.S.C. § 1291. In general, an order is final for purposes of § 1291 if it leaves nothing more for the court to do but execute the judgment. E. g., Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911 (1945). The revocation order certainly is final in that sense.

An additional problem is whether an attorney, although technically not a party of record, may avail himself of § 1291 to appeal such an order. We conclude that he can. The attorney is subject to the district court's disciplinary powers, and this order directly binds him by revoking his permission to practice before the district court in this case. In a somewhat analogous context, we have held that an attorney may appeal a contempt order against him pursuant to § 1291. See Commonwealth v. Local Union 542, International Union of Operating Engineers, 552 F.2d 498, 501 n.6 (3d Cir.), cert. denied, 434 U.S. 822, 98 S. Ct. 67, 54 L. Ed. 2d 79 (1977). Because the attorney is a party to the order in the most elementary sense, this case is distinguishable from the situation where the appellant is not directly bound by the order and never intervenes in the district court as a party. See, e. g., Hoots v. Commonwealth, 495 F.2d 1095 (3d Cir.) (per curiam), cert. denied, 419 U.S. 884, 95 S. Ct. 150, 42 L. Ed. 2d 124 (1974).

As to the clients, they seek to assert only their attorney's rights. Although normally a person may not assert the rights of others, one exception is where the interest of the two sets of people are inherently interrelated. E. g., Carey v. Population Services International, 431 U.S. 678, 683-84, 97 S. Ct. 2010, 2015, 52 L. Ed. 2d 675 (1977).

Here, the clients' interests are undeniably affected in that the order deprives them of the attorney of their choice. Indeed, in Leis v. Flynt, 439 U.S. 438, 99 S. Ct. 698, 58 L. Ed. 2d 717 (1979) (per curiam), the Supreme Court permitted, without comment, both a client and his attorneys to raise the rights of the attorneys relating to denial of pro hac vice status. Cf. IBM Corp. v. Levin, 579 F.2d 271 (3d Cir. 1978) (client appealing disqualification on ethical grounds).

Accordingly, we conclude that we have jurisdiction to hear the appeal of both the clients and their attorney.

II.

The crucial question in this case involves what procedures should be used where a district court seeks to revoke an attorney's pro hac vice status. As we have noted in the past, we have inherent supervisory power over the district courts to regulate certain procedural matters of significance. E. g., United States v. Schiavo, 504 F.2d 1 & n.7 (3d Cir.) (in banc), cert. denied, 419 U.S. 1096, 95 S. Ct. 690, 42 L. Ed. 2d 688 (1974). Here, we believe that some type of notice and an opportunity to respond are necessary when a district court seeks to revoke an attorney's pro hac vice status.

Such procedures are desirable for two reasons. First, although at one time pro hac vice status was considered to be granted and held at the grace of the court, we believe that in this era of interstate practice of law, such a notion cannot be applied too literally or strictly. Second, some sort of procedural requirement serves a number of salutary purposes. It ensures that the attorney's reputation and livelihood are not unnecessarily damaged, protects the client's interest, and promotes more of an appearance of regularity in the court's processes.

As to the type of notice required, flexibility is dictated because in some cases there may be circumstances where formal notice is inappropriate. We therefore leave the form of the notice to the discretion of the district court with the limitation that it adequately inform the attorney of the basis upon which revocation is sought. In short, the attorney should be notified of two things: the conduct of the ...


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