## Facts

- Larry Flynt and Hustler Magazine, Inc. were indicted in Ohio for violations of a statute prohibiting dissemination of harmful material to minors.
- At arraignment, local counsel filed an entry listing two out-of-state criminal defense lawyers, Herald Fahringer (New York) and Paul Cambria, as counsel, though neither was admitted to practice in Ohio.
- A judge initially endorsed the entry, apparently believing the out-of-state lawyers were Ohio bar members.
- After the case was assigned to a different trial judge, the judge refused to allow the out-of-state lawyers to participate upon learning they were not Ohio-admitted attorneys.
- The trial judge did not hold an evidentiary hearing on any formal application for pro hac vice admission.
- The out-of-state lawyers sought mandamus relief in the Ohio Supreme Court, which dismissed without opinion.
- The lawyers and criminal defendants filed a federal civil action claiming denial of pro hac vice participation without a hearing violated Fourteenth Amendment due process.
- The federal district court enjoined further state prosecution until a hearing was held on the pro hac vice requests; the Sixth Circuit affirmed.

## Issues

1. Whether out-of-state attorneys have a cognizable Fourteenth Amendment property or liberty interest in being admitted pro hac vice in a state criminal case.
2. Whether, absent a state-law entitlement, due process requires a hearing before a state court denies pro hac vice participation to out-of-state counsel.

## Decision

- The Supreme Court reversed the Sixth Circuit and remanded.
- The Court held the out-of-state attorneys’ desire to appear pro hac vice was not a cognizable property or liberty interest under the Fourteenth Amendment without an independent source creating an entitlement.
- Because no such entitlement was identified, Ohio courts were not constitutionally required to provide procedural due process (including a hearing) before denying pro hac vice participation.
- The federal injunction halting the state prosecution pending a pro hac vice hearing was improper on the attorneys’ asserted due process theory.
- The Court expressly did not decide any Sixth Amendment counsel-of-choice claim belonging to the criminal defendants.

## Legal Principles

- The Fourteenth Amendment does not itself create property interests; protected property interests arise from independent sources such as state law rules, statutes, authoritative decisions, or mutually explicit understandings.
- Pro hac vice admission is a discretionary, case-specific permission rather than a right conferred by the Constitution or by common practice alone.
- Longstanding prevalence of pro hac vice practice does not, by itself, create a legitimate claim of entitlement sufficient to trigger procedural due process.
- States retain primary authority to license and regulate attorneys within their jurisdictions; admission in one state does not constitutionally require permission to practice in another.
- Due process protections attach only when a claimant shows deprivation of an existing, state-created property or liberty interest, not merely denial of a discretionary benefit not previously granted.

## Conclusion

The Court held that out-of-state attorneys denied participation in an Ohio criminal case had no Fourteenth Amendment property or liberty interest in pro hac vice admission absent a state-created entitlement, so the Constitution did not require a hearing, and the federal injunction delaying the prosecution was vacated.


Leis v. Flynt, 439 U.S. 438 (1979)