In Re Contempt Proceeding of Smith

272 S.E.2d 834 (1981)

In re Contempt Proceedings of Talbot Michael SMITH.

No. 38.

Supreme Court of North Carolina.

January 6, 1981.

Loflin, Loflin & Acker by Thomas F. Loflin, III, and James R. Acker, Durham, attorneys for respondent-appellant.

Rufus L. Edmisten, Atty. Gen., by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

HUSKINS, Justice:

In disposing of this case, we reach only one of the issues raised in the Court of Appeals, viz: May a judge in his discretion waive the requirement of local counsel found in G.S. 84-4.1(5) when an out-of-state attorney is admitted to limited practice in this State? Our answer to this question makes it unnecessary to consider other holdings and dicta of the Court of Appeals. We hold a trial judge cannot waive the requirement that local counsel be associated before an out-of-state attorney is admitted to limited practice in the courts of this State.

As a general rule, a regularly licensed attorney admitted to practice in one state is permitted to practice in the courts of another state in the disposition of a particular case without formal admission and license to practice in the other state. Smith v. Brock, 532 P.2d 843 (Okla.1975); Johnson v. Di Giovanni, 347 Mich. 118, 78 N.W.2d 560 (1956); Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930); In re Pierce, 189 Wis. 441, 207 N.W. 966 (1926). It is a custom at least as old as 1735 when Andrew Hamilton, a Philadelphia lawyer, gained special permission to appear in the New York courts to defend the right of freedom of speech and press of one John Peter Zenger. See J. Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger, 17-26, 61 (S. Katz ed. 1963); Loyd, Andrew Hamilton in 1 Great American Lawyers 1, 4, 27-48 (1907). It is, however, not a right but a discretionary privilege which allows out-of-state attorneys to appear pro hac vice in a state's courts without meeting the state's bar admission requirements. "It is permissive and subject to the sound discretion of the Court." State v. Hunter, 290 N.C. 556, 568, 227 S.E.2d 535, 542 (1976), cert. den., 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977). The right to appear pro hac vice in the courts of another state is not a right protected by the Due Process Clause of the Fourteenth Amendment. The Federal Constitution does not obligate state courts to grant out-of-state attorneys procedural due process in the grant or denial of their petition for admission to practice pro hac vice in the courts of the state. Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717, reh. den., 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979); Thomas v. Cassidy, 249 F.2d 91 (4th Cir. 1957), cert. den, 355 U.S. 958, 78 S.Ct. 544, 2 L.Ed.2d 533 (1958).

"It is well established that the constitutional power to establish the qualifications for admission to the Bar of this State rests in the legislature." In re Willis, 288 N.C. 1, 14, 215 S.E.2d 771, 779, appeal dismissed, 423 U.S. 976, 96 S.Ct. 389, 46 L.Ed.2d 300 (1975); Seawell, Attorney-General v. Motor Club, 209 N.C. 624, 184 S.E. 540 (1936); In re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); see also Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954); State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949); State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940); State v. Lockey, 198 N.C. 551, 152 S.E. 693 (1930). The legislature fixed the conditions under which an out-of-state attorney may be admitted to practice pro hac vice in this State in G.S. 84-4.1 which reads as follows:

Any attorney regularly admitted to practice in the courts of record of another state and in good standing therein, having been retained as attorney for any party to a legal proceeding, civil or criminal, pending in the General Court of Justice of North Carolina, or the North Carolina Utilities Commission or the North Carolina Industrial Commission may, on motion, be admitted to practice in the General Court of Justice or North Carolina Utilities Commission or the North Carolina Industrial Commission for the sole purpose of appearing for his client in said litigation, but only upon compliance with the following conditions precedent:

(1) He shall set forth in his motion his full name, post-office address and status as a practicing attorney in such other state.

(2) He shall attach to his motion a statement, signed by his client, in which the client sets forth his post-office address and declares that he has retained the attorney to represent him in such proceeding.

(3) He shall attach to his motion a statement that unless permitted to withdraw sooner by order of the court, he will continue to represent his client in such proceeding until the final determination thereof, and that with reference to all matters incident to such proceeding, he agrees that he shall be subject to the orders and amenable to the disciplinary action and the civil jurisdiction of the General Court of Justice and the North Carolina State Bar in all respects as if he were a regularly admitted and licensed member of the Bar of North Carolina in good standing.

(4) He shall attach to his motion a statement to the effect that the state in which he is regularly admitted to practice grants like privileges to members of the Bar of North Carolina in good standing.

(5) He shall attach to his motion a statement to the effect that he has associated and has personally appearing with him in such proceeding an attorney who is a resident of this State and is duly and legally admitted to practice in the General Court of Justice of North Carolina, upon whom service may be had in all matters connected with such legal proceedings, or any disciplinary matter, with the same effect as if personally made on such foreign attorney within this State.

(6) Compliance with the foregoing requirements shall not deprive the court of the discretionary power to allow or reject the application.

(Emphasis added.) The discretionary power of the court expressed in G.S. 84-4.1(6) arises "only upon compliance with the ... conditions precedent" contained in G.S. 84-4.1(1-5). Those conditions must first be met. Then and only then does the court have "discretionary power to allow or reject the application." See also G.S. 84-4.2.

This case centers on G.S. 84-4.1(5) which requires an out-of-state attorney to attach to his motion for admission to limited practice a statement that he has associated resident local counsel to appear with him at all times during the proceeding he seeks to enter pro hac vice. By implication, the statute obviously requires the out-of-state attorney to do what he has stated he will do-that is, in fact, to associate local counsel to appear with him. This is a valid and reasonable state requirement. Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5, reh. den., 368 U.S. 945, 82 S.Ct. 376, 7 L.Ed.2d 341 (1961); Bradley v. Sudler, 172 Kan. 367, 239 P.2d 921 (1952), later appeal, 174 Kan. 293, 255 P.2d 650 (1953); Arthaud v. Griffin, 202 Iowa 462, 210 N.W. 540 (1926); Annot., 45 A.L.R.2d 1065, § 2 (1956). It is a requirement our Court of Appeals has enforced with vigor in the past. Development, Inc. v. Phillips, 9 N.C.App. 158, 175 S.E.2d 782 (1970), aff'd in part, rev. in part on other grounds, 278 N.C. 69, 178 S.E.2d 813 (1971); State v. Daughtry, 8 N.C.App. 318, 174 S.E.2d 76 (1970). It is a rule of wide application in the various states. See, e. g., Keogh v. Pearson, 35 F.R.D. 20 (D.D. C.1964); Dorador v. State, 573 P.2d 839 (Wyo. 1978); Frost v. Hardin, 218 Kan. 260, 543 P.2d 941 (1975); Application of American Smelting and Refining Co., 164 Mont. 139, 520 P.2d 103 (1973); Re New Jersey Refrigerating Co., 96 N.J.Eq. 431, 126 A. 174 (1924); Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915).

The rule is one way for the courts to control out-of-state counsel and assure compliance with the duties and responsibilities of an attorney practicing in the courts of this State. The association of out-of-state counsel with a local attorney satisfies a reasonable interest of our courts in having a member of the Bar of our State responsible for the litigation. See Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); Willis v. Semmes, Bowen and Semmes, 441 F.Supp. 1235 (E.D.Va.1977). Our statute is specifically designed to insure that the court has ready jurisdiction over those appearing only occasionally before it by insuring that counsel who appear regularly before it participate in the case. See Slayman v. Steinhoff, 185 Kan. 88, 340 P.2d 98 (1959).

The very wording of the statute itself impels the conclusion that the association of local counsel is a mandatory condition precedent to the admission of an out-of-state attorney to a limited appearance in the courts of this State. Even after the provisions of G.S. 84-4.1(1-5) have been complied with, the court has absolute discretion to "allow or reject the application." Unless and until subsections (1) through (5) are complied with, the court has no discretion whatever. The legislative requirement of local counsel is therefore mandatory and the court cannot waive it. It has no discretion in that respect. The conclusion of the Court of Appeals to the contrary in this case is erroneous.

In this case, a valid motion for limited practice and attached statement was before Judge Ferrell on 31 October 1978. On its face, it complied with all the prerequisites of G.S. 84-4.1. It included an express statement to the effect that local counsel had been associated as required by G.S. 84-4.1(5) which read as follows:

I am associating and will have personally appearing with me in this proceeding Stephen T. Smith of Kimzey, Smith & McMillan, Raleigh, North Carolina, who is a resident of the State of North Carolina and is duly and legally admitted to practice in the General Court of Justice of North Carolina and upon whom service may be had in all matters connected with this legal proceeding, or any disciplinary matter, with the same effect as if personally made on me within this State.

The record discloses that this motion was not allowed, apparently because Stephen Smith of the Wake County, North Carolina Bar had not been retained generally. A general appearance by local counsel is required by G.S. 84-4.1. Absent such appearance by local counsel, Talbot Smith never acquired eligibility to appear in the case and therefore was never an attorney in the case admitted to limited practice in North Carolina. Under those circumstances, Talbot Smith could not be held in and punished for direct and willful contempt of the court. Judge Ferrell was without power to order him to appear as attorney in the Atkinson case. The "order" to that effect was a nullity. Disobedience of an order made without, or in excess of, jurisdiction is not punishable as contempt. State v. Black, 232 N.C. 154, 59 S.E.2d 621 (1950); see also 17 Am.Jur.2d, Contempt, § 42, and cases cited in footnote 9; 17 C.J.S., Contempt § 14.

For the reasons stated the contempt order against Talbot Smith, who was never properly admitted to practice pro hac vice before the courts of this State, is dismissed. The decision of the Court of Appeals is

REVERSED.

COPELAND and BROCK, JJ., took no part in the consideration or decision of this case.