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In re Rappaport

June 14, 1977

IN RE MICHAEL RAPPAPORT, PETITIONER*FN*


Petitions for writs of mandamus and prohibition. The application for a writ of mandamus seeks admission of an attorney pro hac vice. The application for a writ of prohibition seeks a dismissal of an indictment for violation of the Speedy Trial Act. Both applications are denied.

Meskill, Circuit Judge, and Markey, Chief Judge, United States Court of Customs and Patent Appeals,*fn** and Motley, District Judge.**fn**

Author: Meskill

MESKILL, Circuit Judge:

Michael Rappaport, who seeks writs of mandamus and prohibition in this case, was indicted in the United States District Court for the Western District of New York in January, 1976. His trial in December, 1976, ended in a hung jury and Judge Elfvin declared a mistrial. A retrial was set for January 25, 1977, but has not yet begun. The circumstances surrounding the failure to hold this second trial are the subject of this proceeding.

At his first trial, petitioner was represented by Martin Blitstein, Esq. Blitstein was admitted to the Florida Bar, but was not a member of the New York State Bar, nor was he admitted to practice before the United States District Court for the Western District of New York. Nevertheless, Judge Elfvin allowed him to try the case.*fn1

In the course of the trial, Blitstein testified as a witness in his client's behalf and was questioned by a lawyer from Miami, John McDaniel, Esq. McDaniel is, like Blitstein, a member of the Florida Bar not admitted in the New York state or federal courts.

Before the second trial, two disturbing facts concerning Blitstein's professional conduct came to Judge Elfvin's attention. The first was that he was indicted in January, 1974, in the Southern District of Florida, for obstruction of justice and giving false and evasive testimony before a grand jury. His trial ended in a hung jury. After plea negotiations, he pled guilty to two counts of criminal contempt, 18 U.S.C. ยง 401; Fed. R. Crim. P. 42, and was fined $2,000.*fn2

The second incident which came to Judge Elfvin's attention was that Mr. Blitstein had been suspended from the practice of law in Florida for 45 days, beginning in March, 1974. The suspension was incurred when Mr. Blitstein overreached his position to bilk a client out of $35,000.*fn3 His membership in the Florida Bar had been restored prior to Judge Elfvin's decision at issue here.

Judge Elfvin then wrote to Blitstein and invited him to explain his Florida problems. He did telephone Judge Elfvin, who states in his affidavit that Blitstein attempted to "minimiz[e]" these events. The judge also made inquiries of the Florida Bar Association and Judge Joe Eaton, who accepted Blitstein's guilty pleas to criminal contempt. Judge Elfvin also received a transcript of the guilty plea proceeding, together with a number of related documents.

After considering all of this evidence, Judge Elfvin decided not to admit Blitstein as Rappaport's attorney in the retrial. He sent telegrams to this effect to both Blitstein and Rappaport on January 18, 1977. In a telephone conversation with McDaniel that day, Judge Elfvin was asked if there was any method for review. He suggested that the petitioner might seek a writ of mandamus.

The petitioner repeatedly stated that he would do so. In each instance, Judge Elfvin delayed the start of the trial to await the anticipated petition and ruling. Finally, on March 18, the petition was actually filed. The petitioner now seeks, in addition to the writ of mandamus, a writ of prohibition directing Judge Elfvin not to try Rappaport at all. The reason alleged is that the extended delay before the retrial violates the Speedy Trial Act and the Sixth Amendment. We deny both applications for relief.*fn4

I.

Of course, admission to the Bar of one state does not carry with it the right to practice law anywhere else. Hawkins v. Moss, 503 F.2d 1171 (4th Cir. 1974), cert. denied, 420 U.S. 928, 43 L. Ed. 2d 400, 95 S. Ct. 1127 (1975); see In re Stolar, 401 U.S. 23, 33, 27 L. Ed. 2d 657, 91 S. Ct. 713 (1971) (Blackmun, J., dissenting). The same is true of admission to the district courts of the United States.*fn5 See Lark v. West, 110 U.S. App. D.C. 157, 289 F.2d 898 (D.C. Cir.), cert. denied, 368 U.S. 865, 7 L. Ed. 2d 63, 82 S. Ct. 114 (1961); Note, Retaining Out-of-State Counsel: The Evolution of a Federal Right, 67 Colum. L. Rev. 731, 738 (1967).

However, most, if not all, federal courts allow for the admission of attorneys pro hac vice ; that is, an attorney from another jurisdiction will be admitted to present only one matter. This is provided for in the Supreme Court of the United States, Dennis v. United States, 340 U.S. 887, 95 L. Ed. 644, 71 S. Ct. 133 (1950); in our Court, Second Circuit Rule 46(d); and by every district court in our Circuit.*fn6 The relevant rule of the Western District of New York is Rule 2(d).* ...


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