DiLuzio v. United Electrical, Radio & Machine Workers of America

461 N.E.2d 766, 391 Mass. 211, 1984 Mass. LEXIS 1377
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 16, 1984
StatusPublished
Cited by16 cases

This text of 461 N.E.2d 766 (DiLuzio v. United Electrical, Radio & Machine Workers of America) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiLuzio v. United Electrical, Radio & Machine Workers of America, 461 N.E.2d 766, 391 Mass. 211, 1984 Mass. LEXIS 1377 (Mass. 1984).

Opinion

Lynch, J.

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.

[213]*213The defendant unions’ motion to dismiss the suit was allowed by the judge, on the ground that unincorporated labor organizations could not be sued in Massachusetts. In DiLuzio v. United Elec., Radio & Mach. Workers, Local 274, 386 Mass. 314 (1982), we reversed the judge’s ruling, holding that such entities are amenable to suit. Mr. Fogleman was responsible for the foundation’s contribution to the litigation up until that point; he was admitted pro hac vice without opposition by the defendant unions and, in fact, argued the case before this court. The case was then remanded to the Superior Court for further proceedings, and about this time Mr. Fogleman resigned from the case and was replaced by Mr. Cameron, who had not yet participated in the litigation.

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.

[214]*214However, an order granting a motion to disqualify counsel has traditionally been held to be a final judgment and therefore immediately appealable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). See, e.g., Draganescu v. First Nat'l Bank, 502 F.2d 550 (5th Cir. 1974), cert. denied, 421 U.S. 929 (1975). This doctrine has a close Massachusetts counterpart in our rule of present execution. Borman v. Borman, 378 Mass. 775, 780 (1979). See Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483 (1968); Lynde v. Vose, 326 Mass. 621 (1951). Applying this rule in Borman, we agreed to review directly a pretrial ruling by a Probate Court judge disqualifying counsel for one of the parties in a divorce proceeding, on the grounds that “disqualification orders are conclusive of a party’s right to counsel of his choice and are effectively unreviewable on appeal from judgment.” Borman v. Borman, supra at 780. In the instant case, the judge’s denial of the plaintiff’s pro hac vice motion has the same impact and is in effect a final judgment. As such, the ruling may properly be appealed under G. L. c. 231, § 117.

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[215]*215ment.” Opinion of the Justices, 289 Mass. 607, 612 (1935). See Opinion of the Justices, 279 Mass. 607, 611 (1932). While this directive does not prevent the Legislature from enacting laws in aid of the judicial prerogative, such laws are in all respects subject to the “ultimate power of control” of the judiciary. Collins v. Godfrey, 324 Mass. 574, 576 (1949).

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).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ellis v. Department of Industrial Accidents
463 Mass. 541 (Massachusetts Supreme Judicial Court, 2012)
PCG TRADING, LLC v. Seyfarth Shaw, LLP
951 N.E.2d 315 (Massachusetts Supreme Judicial Court, 2011)
McMenimen v. Passatempo
892 N.E.2d 287 (Massachusetts Supreme Judicial Court, 2008)
Superadio Ltd. Partnership v. Winstar Radio Productions, LLC
844 N.E.2d 246 (Massachusetts Supreme Judicial Court, 2006)
Mooney v. Haight
20 Mass. L. Rptr. 8 (Massachusetts Superior Court, 2005)
Handy v. Kraft
2004 Mass. App. Div. 185 (Mass. Dist. Ct., App. Div., 2004)
Meschi v. Iverson
805 N.E.2d 72 (Massachusetts Appeals Court, 2004)
Tamber v. Desrochers
696 N.E.2d 969 (Massachusetts Appeals Court, 1998)
Baghdady v. Lubin & Meyer, P.C.
4 Mass. L. Rptr. 524 (Massachusetts Superior Court, 1995)
Massachusetts Federation of Teachers v. School Committee
564 N.E.2d 1027 (Massachusetts Supreme Judicial Court, 1991)
Commonwealth v. Burbank
534 N.E.2d 1180 (Massachusetts Appeals Court, 1989)
Yale Literary Magazine v. Yale University
522 A.2d 818 (Supreme Court of Connecticut, 1987)
Gibbs Ford, Inc. v. United Truck Leasing Corp.
502 N.E.2d 508 (Massachusetts Supreme Judicial Court, 1987)
Yale Literary Magazine v. Yale University
496 A.2d 201 (Connecticut Appellate Court, 1985)
DiLuzio v. UNITED ELECTRICAL, RADIO & MACHINE WKRS.
461 N.E.2d 766 (Massachusetts Supreme Judicial Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
461 N.E.2d 766, 391 Mass. 211, 1984 Mass. LEXIS 1377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diluzio-v-united-electrical-radio-machine-workers-of-america-mass-1984.