Michael F. Armstrong v. Clovis McAlpin

pro- in that participation to his continued unconstitutionally

gram of which he

deprived. affirmed. from is judgment appealed Judge, concurred in

Mulligan, Circuit opinion. and filed part part and dissented in Meskill, concurred Judge, Circuit state- part part and dissented in and issued ment. ARMSTRONG, al., F. et Michael Graafeiland, Judge, con- Circuit Van Plaintiffs-Appellees, in part and curred in dissented part and opinion. filed al., McALPIN, et Clovis Newman, concurred in Judge, Circuit Defendants-Appellants. part opinion. part and filed dissented 79-7042. Docket No. Appeals,

United States Court Circuit.

Second Banc Court En

Submitted

Feb. 20, 1980. June

Decided Griswold, Washington, N. D.

Erwin C. Bell, (Donald Baker, Robert H. I. Griffin B. Dolan, Collier, Jr., J. Bork, Ronald J. Calvin C., Ralph Washington, D. Egan, Michael J. Baker, Gordon, Hurwitz, Butowsky, Weit- Cal., John R. Fer- Erickson, Angeles, E. Los Shalov, City (Franklin B. York zen & New Giuliani, Robert B. guson, Rudolph W. Wexler, Siegel, Bruce New Velie, Paul D. Johnson, Thomas F. Hummel, M. Owen counsel), plaintiffs-appel- for City, York Levi, Michael R. Kauper, H. Edward lees. Norton, McQuinn, Jonathan C. Gerald P. Schapiro & Arm- Barrett Smith Simon Ruckelshaus, Rose, Antonin Sca- William D. F. Arm- strong, City (Michael New York lia, Silberman, Sims, Joe Wil- Laurence H. Richman, Singer, Eric T. strong, Martin F. Turner, Wash- Swope, liam E. F. Donald yet New L. Gotbetter City, York Susan [not Jr., C., Tyler, New ington, D. R. Harold admitted], counsel), Michael for receiver Ward, Alan City, Washington, York S. D. Armstrong. F. C., lawyers as counsel), amici for certain Crocco, (J. City Lunney & New York curiae. McAllister, Lunney, Robert Michael J. DeLuca, City, York of coun- James J. New KAUFMAN, Judge, Chief Before sel), defendants-appellants. for MANSFIELD, MULLIGAN, FEINBERG, Gen., Daniel, Wash- Atty. Alice Asst. TIMBERS, OAKES, VAN GRAAFEI ington, (Robert Kopp, E. Frederick D. D. C. NEWMAN, LAND, Circuit MESKILL Justice, Cohen, Div., Dept, of Attys., Civ. Judges.* C., counsel), Washington, for the Unit- D. ed curiae. States as amicus FEINBERG, Judge (with whom Circuit' Ferrara, Counsel, Ralph C. Gen. Securi- KAUFMAN, Judge, and MANS- Chief Commission, Exchange ties and Wash- FIELD, TIMBERS, Circuit OAKES Gonson, Sol., ington, (Paul John P. D. C. Judges, concur): Counsel, Anne Flan- Sweeney, Asst. Gen. C. In this en are called proceeding, banc Counsel, C., nery, Washington, D. Har- Sp. upon significant to consider two issues: Penn, counsel), Atty., lan W. for the denying a motion to appealability of orders Exchange Securities and Commission as the standard to disqualify attorney an amicus curiae. applied judge ruling upon by the trial Counsel, Burk, I. Acting Robert Gen. S. McAlpin Capital motions. Clovis C., (Frederick C. D. C. W. Washington, Fund, Inc., two of nu- Growth Real Estate Read, Counsel, III, Associate Gen. Wash- seeking suit over merous defendants in a C., counsel), ington, for Interstate D. of federal securi- million violation $24 amicus curiae. Commerce Commission laws, ties an order of the Unit- appeal from Counsel, Kehoe, Brien E. Federal Gen. ed for the States Southern District Court Commission, Washington, D. Maritime C. Werker, J., York, Henry District of F. New Counsel, (Edward Gruis, Deputy G. Gen. law denying their motion to Cunningham, Washington, John D. Atty., C. appeal firm representing plaintiffs. , counsel), C. of Maritime the Federal court, was first heard of this Commission as amicus curiae. which concluded that judge the trial had Gaine, Counsel, erred in denying disqualifica-

John G. Gen. defendants’ Commodity Commission, Trading Washington, Futures A tion motion. 606 C., Commodity Trading D. for the Futures grant of this court voted to en appeal, Commission as amicus curiae. and di- banc reconsideration death, granting *The order en banc reconsideration of 1979. Prior to his he did not have the appeal opportunity appeal. filed on December to vote on the merits of the Kearse, Gurfein, Judge subsequent who was a member of the en December court, unfortunately disqualified banc herself. died December (Costa Rica) Capital Company, Growth S. A. brief both parties the merits reeted al., (S.D.N.Y.1974). F.Supp. et whether question and also the denying disqualifica- granting tasks as principal Armstrong’s One of appealable. Subse- motion should companies Growth Capital receiver for the parties and a number of amici quently, property mis- moneys and is to all recover on the be- filed briefs issues comprehensive defendants; further appropriated by full consider- After fore the en banc court. to initiate task, Armstrong was authorized of the district ation, we affirm the and abroad. litigation in the United Statess the earlier decision of court and vacate the granted Stewart Judge In October panel. that henceforth We also hold counsel Armstrong’s request to retain motions will not denying disqualification New firm Scha- the York of Barrett Smith thus de- appealable, en banc overruling our appoint- after Shortly the piro & Simon.1 Chrysler Plymouth, cision in Inc. v. made its in- SEC the Armstrong, ment Chrysler Motors him, to in accord- available vestigatory files rulings The reasons for these are informed in practice, ance with its fully forth below. set brief, efforts receiv- “the assisting The the courts I. Facts ers who appointed have actions.” in law enforcement Commission based to Appellants’ motion Management Corp., 475 Cf. SEC v. Everest Alt- prior participation on the of Theodore 1972). The Barrett (2d Cir. man, repre- firm partner in the law now. files, these conducted Smith firm reviewed investiga- an senting plaintiffs-appellees, receiver, the and investigation its own appellants and litigation against of various taking possession assisted him in Di- conducted he was an Assistant when continen- Capital the properties Growth rector of the Enforcement of Division of Rico. For Puerto tal United States and in Exchange the Commission Securities and half, told, year the next and a we are (the SEC). after September In 2,600 approximately Barrett Smith devoted investigation, nine-month com- SEC receiver, in- hours which assisting the Dis- menced action in the States United five partners cluded services of trict Court for the Southern District associates; eight of this over half little against McAlpin New York Clovis and vari- litigation. time spent preparing was ous other and institutional de- individual alleged that complaint 1976, however, fendants. The receiver early defendants loot- McAlpin and the other had potential of a Barrett became aware Smith group ed from a relat- millions of dollars institution- involving an conflict of interest referred here companies, ed investment be- al client of Barrett Smith Capital compa- brought by Growth collectively litigation come a defendant nies; top executive officer McAlpin Thus, was Barrett Smith’s despite receiver. sought, time, suit companies. these The the receiver SEC substantial investment of a among things, appointment other to substi- necessary concluded was protect task, however, receiver to the interests of share- litigation The tute counsel. Capital companies. holders in the Growth one; McAlpin had fled to easy was not an McAlpin cer- When fled to Costa Rica and Costa of the assets Rica most appear, tain companies other defendants failed to hence the Capital Growth Sep- Armstrong judgment; SEC obtained a default to secure new funds available ap- E. quite tember Charles Stewart limited.2 It was there- counsel were could not pointed Armstrong, principal necessary fore firm that Michael F. find a litigation in Costa Rica appellee appeal, only as receiver difficult handle States, would also but companies. Capital Growth See SEC and in the United $200,000; firm, it is Armstrong partner about which 2. Cash on hand was then was a apparently not Schapiro Arm- much more now. now Barrett Smith Simon & strong. cases, task, over numerous responsibility if includ- even commit itself to conclude ing Capital was avail- Growth compensation investigation little or no interim not involved Moreover, important litigation. to retain he was Although able.3 it was aware of basis, generally enough cope daily with the on a was large a law firm he status of the generated to be immense work soon facts of the case paper pre- represent complaint litigation. probably that would firms SEC’s New pared the staff defendants.4 and filed institutional Administrator, and the liti- Regional York considerations, appellees Because of these York office. gation New was handled assert, already on firms focused the receiver com- Altman’s on the SEC appeared name L. Ves- against Robert litigation involved in plaint, although sign he did not it. co, who, had fled to Costa McAlpin, like joined At the time the Gor- prosecution Rica rather that Altman possible than face firm, viola- don reason alleged for numerous securities fraud receiver no had that Altman left the or to be negotiations tions. After abortive with two know had SEC firms, Subsequently, April the receiver in 1976 re- aware of his new affiliation. meetings tained the law firm with the Gordon during of Gordon Hurwitz the initial Butowsky Shalov, firm, Baker that Altman Weitzen & the first learned Armstrong with the target firm that dis- associated appellants’ recently had become qualification firm and Barrett According motion. to Arm- firm. Both Gordon effect strong, part question firm chosen in Gordon was Smith researched the role in the partner, Butowsky, supervisory because one David M. prior Altman’s was concluded that Special then Counsel to International SEC suit. The two firms standards discussed Corporation applicable Controls and was involved in under ethical Altman should legal relating opinion, work in Rica to the in Part IV Costa of this defalcations, alleged participate repre- while not Vesco another in the Gordon firm’s partner receiver, specialized experience prose- had sentation of the but the firm cuting complex accepting In would not be was disqualified fraud cases. if Altman the representation, agreed firm properly the Gordon mat- screened from the case. The Capital litigation “conduct all Growth ter was the attention brought to through Stewart, to a conclusion” even if the receiv- the re- who nonetheless authorized er compensate could not Shortly the firm as the ceiver firm. to retain the Gordon litigation progressed. thereafter, the SEC if it had the firm asked retention, and was any objection to the 1975, In October seven months some be- not, long so as writing advised in that it did fore the receiver obtained substitute coun- participation. Altman from was screened Smith, sel for Theodore Altman Barrett litiga- Barrett over then turned Smith ended with the nine-year his SEC .tenure firm, including tion files to the Gordon become an associate with the Gordon firm. SEC; September those received At the resignation, time of his Altman had 1976, plain- the action receiver filed of the been an Director Division Assistant tiffs-appellees against defendants-appel- years, Enforcement for three and had gave appeal.5 lants rise to this twenty-five attorneys working about staff under after the high-ranking years him. As a two enforcement In June almost action, SEC, appellants officer of the supervisory Altman had commencement of Up time, underlying complete to that nor the neither Barrett Smith 5. A of the more statement fees; Armstrong receiver had been awarded subse- facts in this action is set forth quently, McAlpin, there were some interim allowances Transfer Fed.Sec.L. [1978 Binder] Armstrong yet 96,323 Rep. (S.D.N.Y.1978), for Barrett Smith but has ¶ as which deals with compensation. received no motion to dismiss the amended defendants’ complaint. complaint 4. After the receiver’s was subse- filed, quently largest some of the and most prestigious appeared New York firms for the various defendants. Co., v. H. Cook C. Co. motion to the Gordon disqualify filed their 1962) curiam). stat- (per activities The rationale prior firm of Altman’s because 1978, Judge disquali- Werk- granting ed to be that In December SEC. “[a]n progress reassigned, disrupts the er, seriously fication the case had to whom opinion, decisively sullies the repu- In litigation denied motion. had attorney firm . . . .” judge Gordon concluded tation of the affected rele- spirit Phillips, the letter Fleischer carried out rulings, that the denied, vant ethical Cir.), bar association cert. receiver was representation (1959). the other

firm’s On L.Ed.2d in- hand, did not threaten unethical and a motion to denying orders had trial, appellants and that tegrity of Id. nonappealable. were usually viewed prejudice no as a result suffered However, opinion in en banc our unanimous (S.D.N.Y. F.Supp. 622 representation. Chrysler changed the rule so latter indicated, in September already As denying granting and orders reversed this court 1979 a were henceforth disqualification motions court; in December the district decision of a matter of immediately both appealable was ordered proceeding this en banc right. now fixed. We briefing and a schedule sym- obtaining The result of that surface us. turn before issues metry itself. recent soon manifested Appealability II. court have opinions, of this many members motion, parties we asked the On our own availability of an immediate noted that the be- question appealability to brief contributed seemingly we have become concerned over cause motions and proliferation of disqualification our six years effects of decision practical purely the use tactical of such motions v. Inc. ago Chrysler Plymouth, in Silver See, reasons, the trial. e. delaying such (2d 800 Cir. Chrysler Corp., Motors 496 F.2d 246, (2d g., Allegaert Perot, v. F.2d 1974) (en banc), prior which our overruled 1977);6 Haines, W. T. Co. v. Cir. Grant appeals practice and allowed immediate 671, (2d 1976);7 F.2d 677-78 Cir. Lefrak v. That denying disqualification. from orders Co., 1136, 527 F.2d Arabian American Oil us re-examine concern now leads 1975);8 Foley Co., J. (2d 1138-39 P. & Cir. Chrysler. conceptual basis of Silver 1357, Vanderbilt, v. F.2d Inc. J., concurring); see also 1975) (Gurfein, recently As in Eckles pointed we out of Graafeiland, Lawyer’s Conflict In- Van 1977), 953, (2d Cir. Furth, 557 F.2d N.Y.L.J., (Part II), Judge’s terest —A View or- “[tjhe disqualification of appealability 20, we 2. While cannot July history p. this col. ders had checkered has a amount precision determine with Chrysler, orders Before court.” Silver motions, we left with increase in gener- granting disqualify a motion to were impression clear have sub- they ally appealable, to be albeit without held signifi- stantially More See, grown number.9 W. Basset g., discussion. e. E. much Lumbard, appeals panel Judges this . 6. The of court . such motions and consisted Co., proliferated.” supra, W. T. have Grant Oakes and Meskill. 677-78; Lefrak, supra, 531 F.2d at see also Anderson, Judges panel 7. The consisted of event, 1138-39. In continue to we Feinberg Mulligan. disqualification believe that the use of motions analysis, the has For increased. its statistical Judges Mulligan, 8. The consisted of Van opinions primarily dissent relies of on eleven Graafeiland Meskill. published six-year period this court since However, Chrysler. accuracy impression, pub- of of this we Silver number 9. As to the opinions inadequate Judge Mulligan “position” is an measure of the has note that lished is, words, appeals (particularly tergiversation.” prevalence in his of meritless taken Despite “one of motions, view, ones) disqualification present long ago he ob- from denials of not num- for it fails to account for substantial has reversed our served that prior court “[s]ince prior appeals to a are dismissed ber rule and held that denials motions by hearing disposed directly appealable or are on the merits counsel are Cohen, the second and third re- appeal ment cantly, microcosm in this we see in progress of a of. practical quirements disposed effect are not easily so allowing appeals from litigation of a rule of review on regard With adequacy motions. disqualification denials of Since Chrysler Silver appeal judgment, after final appellants moved to dis- June when be “fatuous to flatly it would concludes that firm, litigation in qualify the Gordon . will review . . suppose that [such] in its has been frozen district court 496 F.2d at 805. provide relief.” adequate pro- the en banc recognize tracks. We disqualifica- whose It is true party that a inevitably cedure has contributed to the forced, if de- tion motion is denied delay period delay, but the bulk of time appeal, nied an immediate to bear the appeal stemmed initial from the may expense in a trial involved disqualification. prolonged denial of Such Nonetheless, we do not possibly be tainted. charging interruption litigation in a serious think the harm caused erroneous denial grave abuses of the laws raises securities in any of a motion differs questions judicial administration. And resulting harm significant way from the do not while such concerns themselves interlocutory orders that from other justify Chrysler a conclusion Silver erroneous, requiring dis- such as orders decided, they suggest do improperly covery objection work-product over a of the issue that a careful reconsideration recusal denying motions for That recon- appropriate. appealability situations, judge. trial In those we have sideration, find, concep- that the reveals held that is available no immediate tual was flawed. basis Silver Express as a matter right. American Chrys The basis of our decision Co., Warehousing, Ins. Ltd. v. Transamerica appeals ler was that from denials of dis 1967); 380 F.2d Rosen 281-82 qualification motions fell within the narrow Sugarman, exception judgment recog to the final rule 1966). Moreover, caused the harm Supreme nized Court Cohen v. erroneous denial of mo- 541, 545-47, Beneficial Loan 337 U.S. since usually irreparable 1221, 1225-26, (1949). 93 L.Ed. power grant court retains its traditional Cohen held that certain orders were imme ruling a new court’s trial if the district (1) they diately appealable if were collateral ultimately be incorrect. Fur- turns out to merits; (2) to the if denial of an immediate thermore, irrepa- cases where in those rare appeal irreparable damage would result in threatened, an truly rable immedi- harm is review; (3) if the party seeking appeal through ate certi- might be available issue raised to “be important” was “too or, 1292(b) pursuant pos- fication to section adjudicat deferred until is the whole case sibly, mandamus. through a writ of See ed.” In concluding disquali that denials of Note, Appealability Denying of Orders fication immediately appeala motions were Disqualification Motions for of Counsel ble, Chrysler simply noted that “[a]ll 450, Courts, the Federal U.Chi.L.Rev.' 45 prerequisites three are met” with Cohen (1978) (hereafter 468-80 referred to as Chi- providing out analysis. detailed 496 cago Note). Finally, it F.2d at 805. clear should be remem- rulings While is that disqualification judge pow- motions are collateral bered also retains to that the trial merits, taint, satisfying require- against thus the first er to either protect the trial Industries, summary 19, 1978); order of affirmance. We have no v. Manow Int’l CITC Inc. 1978); canvassing Corp., (2d Banque doubt that a careful of these cases 973 de 584 Cir. Financement, significant Interphoto Corp., since 1974 would reveal a number of S. A. v. 591 appeals disqualification (2d 1978). from denials of mo- We remain con- Thus, cursory appeals disqualifi- tions. a examination of calen- vinced denials appeals during year dared terminated one cation as scarce nor as motions neither six-year period Judge Mulligan’s revealed three such cases. dissent as- meritorious as Curtiss-Wright Copper See Kennecott Co. v. sumes. (appeal withdrawn December 78-7165

439 taint; screening adequate; is is the there through protective the issuance of prior relationship” between “substantial or, through reconsideration if necessary, determi Such present representations. disqualification.10 need for present usually nations therefore do not think that Silver we now Similarly, within question[s]” “serious and unsettled Cohen re the third misconstrued 547, meaning Cohen. important be “too the issue quirement of Phil Watchers Weight S.Ct. at 1226. Cf. ap an immediate be denied review” to Int’l, Watchers Weight adelphia, Inc. v. legal issue with the peal. Cohen dealt 1972); Don Inc., 770, F.2d stockholder deriva defendants whether 935, Forte, 402 F.2d Industries, lon Inc. v. require plain to right actions had the tive Furthermore, disqual costs; Court, security to post tiffs important do raise ification cases that however, noted that decision specifically issues, review immediate legal unresolved fixing “every not mean se did by mandamus 1292(b) or under section subject to 337 U.S. at curity appeal.” is Community available.12 See Thus, the Cohen at 1226. S.Ct. F.C.C., Boston, Inc. Broadcasting of rule exception judgment ap to the final (D.C.Cir. 1976). n. 40 1028 & though per pears primarily, to have been the public think that do not Finally, we towards inter haps exclusively, not directed questions raised ethical importance of the raising potentially decisive locutory appeals requires disqualification motions factual, questions.11 In opposed to The normal legal, right appeal. as to an immediate judicious contrast, coupled motions in with appellate most process, mandamus, per factual, legal, is than rather use of certification primarily volve interest, as fectly a threat of vindicate determinations, adequate there to g., e. is ’ Note, 1975); Chicago supra, at course, potential 110.10 ed. 10. Of our discussion party while it is of course true 461-64. And that the harm a whose motion to applied permit was errone- to immedi- is denied assumes that denial rule Cohen however, situation, analogous we involving ous. appeals primar- ate from some orders significant safeguard have stressed' against legal issues, ily opposed factual irreparable parties is harm to the cases often involve the threatened destruction experienced judges.” “wise trial discretion very important, constitu- and in some cases Express, supra, American 380 F.2d at 282. See, rights. g., Abney v. United tional e. States, 651, 656-62, 431 U.S. 97 S.Ct. settled, perhaps the issue is 11. While not 2038-41, jeopar- (1977) (double 52 L.Ed.2d 651 disagree Judge Mulligan’s conclusion 1, 6-7, Boyle, dy claim); Stack v. 342 U.S. significance sought legal the issues 1, 4, (1951) (order refusing S.Ct. 96 L.Ed. relevant to determina raised on bail); v. United States reduce Roberts District appealable whether an order under tion of Court, 339 U.S. (order denying L.Ed. 1326 text, language As noted Cohen. proceed (1950) leave to in forma clearly implies a factor should that such Cohen circumstances, pauperis). In such threat of Moreover, at least be considered. half cir justify irreparable joined construing harm alone is sufficient cuits have this court Co However, appeal. right require generally an immediate consideration of the hen legal this, ir- significance of the issues where the likelihood cases such certain, See, by g., hardly a reparable court the district e. so raised court’s order. harm is 86, Steering Corp., appealability question v. considering Comm. Mead 611 F.2d should 87 of (5th 1980); Apache importance Jicarilla v. Unit of the give Cir. Tribe to the attention also States, 1116, (10th Cir.), cert. ed 601 F.2d 1124 legal being issues raised. 530, denied, 995, 444 U.S. 100 62 L.Ed.2d S.Ct. (1979); Mortgage Trust v. 426 First Wisconsin important regard, that is to note In it 12. this 390, (7th Corp., First 571 Wisconsin F.2d 393 procedure now embodied in 28 certification Cir.), grounds, rev’d en banc on other 584 F.2d 1292(b) at time available was not § U.S.C. (1978); Corp. Piper v. Air 201 Van-S-Aviation decision. of Cohen 213, (8th 1977); F.2d Cir. craft special It also be that should remembered Hackett, Corp. F.2d 597-98 Grinnell v. bankruptcy pro- govern appealability rules Cir.) (criticizing Chrysler (1st & n. 4 Silver ceedings, category appear to of cases which ground), sub nom. Chamber of this cert. denied particular Judge Mulligan. of concern America, of Commerce v. United Steelworkers Stores, Inc., See, g., Department e. In re Arlan's 46 L.Ed.2d 407 S.Ct. 615 F.2d 925 Cir. (1975). Practice See also 9 Moore’s Federal .440 (8th 612 F.2d related, Litigation, Cir.) (en banc),

it has been held to but be in the serious, granted a district cert. sub & when nom. more situation Firestone Tire -, Risjord,-U.S. his Rubber Co. has denied recusal. judge a motion for - 2150, 64 (1980);14 L.Ed.2d Mel Rosen, supra, 357 794. See Co., 592 Baking amed v. ITT Continental Thus, that the re- because we conclude Community Broad (6th 1970); F.2d 290 met, we of are not over- quirements Cohen by and such casting, supra, 546 F.2d Chrysler and hold rule Silver Moore. Professor See commentators are denying disqualification motions not im- p. Practice, at Moore’s Federal 110.13[10] H We realize that mediately appealable.13 1975) pre ed. 2d (approving Circuit with doing part company so we several Chrysler rule). Silver circuits have accepted See, Chrysler g., e. v. Rail- do not reach the same rule. Schloetter We conclu however, sion, (7th respect Indiana, Inc., grant of to orders oc cases, 1976); (10th In ing Fullmer motions. Harper, 1975). However, immediately per- separated more we are is losing party If the by arguments against suaded the Silver counsel his choice. courts, see, appeal rule e. erroneous, correcting raised other at require In re g., Liability party Multi-Piece Rim Products end case well of the denying disqualifi- concluding jurisdiction that orders to determine the whether exists 13. immediately appealable cation motions are not merits: either devote deciding appealability much time effort and Cohen, rejected adopt and under have considered approach or a lax apparently sug- appealability the rule of gested Thus, limited proposed rule would to the issue. Judge Mulligan’s dissent on this issue. major problems pose administrative either be an ineffective reading denying Chrys- Under this constricted of Silver appeals. bar to frivolous ler, only those orders case, anything, proves present if integrity the trial” “involv[e] of 449. are taint, point. vigorously urge Appellants claim- immediately appealable. regard At We ing case, screening improper use of that the in this however, approach jurisdiction, screening already that the vio- been vague and a rule unworkable. Such would lated, that the trial will be tainted if the necessarily involve a detailed examination of Gordon firm continues as the receiver’s coun- appeal the merits of each whether ty in order to determine court, analysis, sel. The district after a careful appealabili- threshold criterion rejected appellant’s integrity claim that the possible integrity threat of the —a threatened, the trial was and the present. Moreover, inquiry to trial—is de- originally court that heard the did the jurisdiction duplicate inquiry termine would Newman, finding. au- Judge disturb that necessary on the merits to resolve the issue panel opinion, thor of that threat of taint now believes that under See section IV substantive this court. standards exist, but the ma- Mulligan’s dissent infra. jority of en banc court scrutiny has concluded asserts that such careful is unneces- correctly integ- sary court cursory the district rity found that the and that a “consideration If, Disciplinary implicated” after gen- which erally trial was not Rule is will threatened. court, pan- improper appeals. suffice to screen out full el, the district consideration unpersuaded, however, court, We disagree- 449 n. 3. At the en banc there is'still exists, for several reasons. Claims of unethical con- whether a can ment over threat of taint complex, duct are varied and often and the reasonably be it the assumed that examination true, allegations, impli- extent to which such if question purposes taint for the as- integrity simply cate the accurately of the trial cannot be certaining jurisdiction prove simpler determined a mechanical refer- straightforward not, task? We think more Disciplinary ence to which in underestimate the Rules are mentioned jurisdiction instead believe the test of appellant’s Moreover, brief. we should not should be less elusive. ability “artful movant expenditure . to force unwarranted granted af- Certiorari Firestone Tire judicial opponent by casting resources” banc ter the en order in this case had appeal in terms of threat of taint where none proposed opin- and the en banc issued ion Note, Chicago supra, exists. at 467-68. And circulated. the had been Since seven of appellant argue, an when a does in so the face of judges considering en banc nine appeal ity this active contrary court, ruling by the district this approve appealabil- of the rule of do not equally court would be faced with two unat- Chrysler, in Silver we believe announced options making necessary pre- tractive in the view. that make known our current we should liminary determination on the merits to decide ordinarily appro- be it would ly appealable, he was he lost the case show that because to appeal priate for to dismiss the merely us change counsel. This improperly forced to litigation to contin- the allow insurmounta- this case and almost appear to be an would At its conclusion. to ue in the district court addition, an permitting im- In ble burden. could course, defendants time, the disqual- that of a of grant appeal mediate from the to court judgment appeal adverse litiga- any disrupt the does not ification motion things, the raise, other among and could stayed tion, be since the trial must to failure Werker’s argument Judge is obtained. More- while new counsel case prejudiced firm them Gordon over, motion the disqualification grant the of a be judgment should that therefore the litigation the if may terminate effectively Nevertheless, we believe there reversed. disqualified can- party whose counsel of context strong reasons in the unusual are begin to to not afford hire counsel new appeal this case to reach the merits are considerations litigation anew. Such than to dismiss it. rather example, in this pertinent, obviously text accompanying case. notes 2-3 See note, with, re to in In begin We granting Furthermore, of dis- supra. Liability Litiga- Rim Products Multi-Piece judge is a by a district qualification motion 379, and in tion, at Melamed supra, 612 F.2d issue has fair that a nonfrivolous indication Co., supra, Baking ITT Continental raised; no similar assurance there is Circuits Sixth Eighth F.2d at disqualification of appeals from denials motions disqualification both held denials of question. will substantial motions raise a decided but nonetheless nonappealable Thus, appeals from likely that it is far less them. appeals the merits of before motions disqualification granting of Moreover, posture given procedural reasons. for tactical purely will be taken case, compelling there particularly are Finally, disqualification impairs often First, reasons to reach the a refusal merits. firm or attor- reputation disqualified on so circuit do will leave the law of the be corrected ney, injury and this never attorney in a muddled disqualifications appeal on if the is satisfied with party Although banc state. our en effect For all of his new counsel. performance panel’s earlier decision will be to vacate reasons, with then agree these we now case, opinion panel's decision in this view, expressed well Chief Clark’s split this circuit is suggest nonetheless of dis- grants Chrysler, before Silver disqualifica- on the standard applicable important are more qualification motions motions, when particularly than denials harmful potentially more conjunction with Board decision is read in therefore be of such should motions and Nyquist, Education a matter of immediately appealable as addition, we hold denials if Phillips, supra, 264 right. See Fleischer v. but do nonappealable such motions F.2d at 517.15 here question not resolve the substantive presented, effectively cut the dis- we shall reaching Advisability merits III. adrift, trict courts with no clarification circuit, greatly denying the law of the dimin- that orders Since conclude opportunity ished are not immediate- the future obtain disqualification motions sufficiently Judge Mulligan’s recognize qualification seri- are more 15. We motion force stemming inconsistency ous and claim that some exists between final than those right denial of such a motion that our conclusion that denials of immediately justi- appealable while immediate the former case is motions not Thus, However, along grants legal with all the other of such are. fied. circuits motions logic depend that have held denials of alone. The final mo- rules do immediately appealable, we are judgment tions not to be § embodied 28 U.S.C. rule appearance willing given “practical of in- endure whatever rather than techni- should be Cohen, opposite construction,” consistency supra, from an conclusion arises cal 337 U.S. at grants disqual- and, noted, appealability regarding as we have 69 S.Ct. granting motions. consequences ification practical a dis- application 5-105(D) of D.R. inflexible Moreover, an failure to necessary guidance. considera- policy the district court would thwart actually leave merits will reach the 9-101(B),” 62 ABA underlying tions D.R. particularly in a litigation supervising that, and concluded (1976), Journal it must either adhere to position; untenable impro- significant appearance with a law absent an original ruling proceed its waive could agency priety, government court has said of this firm that a screening proce- case, 105(D), adequate it must rescind Rule or if should not be in the 5— former firm, dures effectively isolated prior ruling and members pretrial government lawyer from those ap- another thereby precipitating matter. Id. at 521. handling his firm in reversal peal, which well result rejected an abso- similarly The Association be an it would panel. Finally, a different for a law firm simply lute rule of judicial resources enormous waste of of a former because judges that all appeal, to dismiss the now government latter is “effec- attorney, to con- if the opportunity the court have had an handling of tively will un- from the sider the merits and defendants isolated [the] 889, 31 The Record they Opinion issue if matter.” No. doubtedly appeal the identical (1976). are unsuccessful at trial. carefully examined that we Werker then should

Accordingly, we conclude before the Gordon address us. Altman screening the merits of the firm, noting that: IY. The Merits participation Altman is excluded from thorough opinion refusing to dis- action, files has no access to relevant firm, Judge Werker re- qualify Gordon derives no from funds remuneration Part I of this viewed the facts set forth in prosecuting the firm from obtained opinion analyzed ethical carefully permit- action. No firm is one at the problem defendants raised. He noted had presence ted to discuss the matter in his concededly disqualified that Altman was any or allow him to view relat- document litigation from in the under participating has not ed to this Altman litigation, and 9-101(B) of the American Disciplinary Rule concerning imparted any information Bar of Professional Re- Association Code Growth Fund to the firm. prohibits Rule an attor- sponsibility. That ney’s private any matter employment indicates that responsibility court [N]othing

which he has had substantial before this SEC, Altman, by the during employment.16 employed The while prior public ' later judge Discipli- the effect of formed intent prosecute considered then Indeed, action Fund. 5-105(D), involving with dis- Growth nary which deals Rule sworn he has never affidavits reveal that qualification of an entire law firm if one participated any This fashion whatever lawyer disqualified.17 firm is representation firm’s by both the Gordon considered issue had been Receiver, ABA) nor has he in the firm’s (the shared Bar American Association income derived of this prosecution the Committee on Professional Judicial and his action. And . . . Altman of the Bar of the Ethics of The Association Association). partners Butowsky two have Velie and City (the of New York ABA, penalty perjury No. had attested under Opinion in its Formal the action government employ- discussed recognized “[pjast Altman has never These state- in which ment creates an unusual situation other firm members. employment 9-101(B) Disciplinary provides: lawyer required decline Rule If a 16. employment or to withdraw from under a lawyer accept private employ- A shall not Rule, Disciplinary associate, partner, no or ment in a matter in which he had substantial lawyer with him or his other affiliated public employ- responsibility while he was a firm, may accept employ- or continue such ee. ment. 5-105(D) provides: Disciplinary Rule cannot trusted —trusted to dis- yers by are uncontradicted defendants ments charge faithful- Alt- their provide imputing responsibilities and a basis for ly office, fully members the while in knowledge man’s to other of abide screening procedures afterwards.” While firm. may overly the tone of assertions these (emphasis origi- in F.Supp. at 624-25 reject- a decision apocalyptic, is true that circumstances, nal). the dis- Under all the ing screening procedures in the efficacy of “the judge proper trict concluded adverse significant context may have disqualifi- rather than screening of Altman Thus, disapproval may consequences. firm is the solution to cation of the Gordon hamper to hire government’s the efforts present the Id. at 626. Accord- dispute.” fear qualified may attorneys; latter the ingly, the motion to was denied. transform government service indicated, panel of appeal, already On a legal “Typhoid them into Marys,”19 this court reversed the the of district private employers by prospective shunned court, ground dis- apparently the may result the dis- hiring because them qualification required prophylac- “as in a possibly firm qualification an entire tic misuse of au- guard against measure range wide The amici also con- of cases. thority lawyers.” F.2d by government already employed by tend that those at 34. unwilling to assume government may be rehearing banc, fa- On this en we are responsibility within positions greater only vored with briefs not the parties from height- serve government States,18 the but also from the United Secur- undesirability private em- en their to future Commission, Exchange ities the Inter- trends, if carried to ployers. Certainly such Commission, state the Federal Commerce extreme, an ultimately adverse- affect Commission, Maritime Commodities Fu- ly quality government of the services of Trading tures and twenty-six Commission attorneys. distinguished government lawyers former attorneys, Not employed practicing only panel possibly now cor- decision officers, all is- porate great practical or law attest- the ethical professors, importance, importance ing complex of the issues raised on sues it are also addresses Thus, appeal. hotly the United asserts various currently being States contested screening noted, reject proce- groups. that a the ABA “decision As previously serious, and the Associa- Opinion dures is certain to have adverse Formal No. York legal New ability City effect on the of Government tion of the Bar of the screening well-qualified approved retain both devices offices to recruit and the use of attor- view is seconded attorneys”; government the case of former neys; other amici. And the former Conference of government Administrative recently two sanctioned government lawyers, including former United States has also contrast, ABA Attorneys screening.20 General the United States and the use of proposal two committee in a recent draft former Solicitors United General States, appar- at Model Rules Professional state that are all “affected Conduct they ently least indirectly, by opinion’s un- omits for relief any provision screening.21 The government through law- derlying assumption that 18. brief states 20. the United United States also See Administrative Conference States, 14, 1979), presents (Dec. that it Trade views of the Federal Recommendation 79-7 Commission, Board, reprinted Legal Washington, the Civil Aeronautics Times of Dec. Commission, Energy Regulatory 31, 1979, Federal at 27. Council, Legal Federal committee consist- ing of the General of fifteen Counsels executive on Evaluation of Profes- 21. ABA Commission agencies Attorney branch chaired Standards, of Mod- sional Discussion Draft General of United States. (Jan. el Rules of Professional 30, § Conduct 1.11 U.S.L.W., 1980), reprinted in vol. no. 32 States, Kesselhaut v. United (Feb. (Ct.Cl.1977) curiam). (per example, violation representation, provoked signif- have also issues thus raised See, present g., giving e. thus commentary. Canons scholarly icant Kaufman, Attor- client an unfair advantage The Former Government Ethics, cases, kinds of we have of Professional in other ney and the Canons But Re-, Lacovara, disquali- (1957); 70 Harv.L.Rev. 657 considerable reluctance shown Former Practice of stricting misgivings the Private about the fy attorneys despite 20 Ariz.L.Rev. Lawyers, Government reluc- . This attorney’s conduct. . . to Defense Note, Wall (1978); The Chinese fact that derives from the probably tance 128 U.Pa.L.Rev. Disqualification, Law-Firm adverse has an immediate disqualification collected at nn. commentary (1980) by separating the client him effect on Pennsylva- to as (hereafter referred & 16 choice, dis- of his and that from counsel Note, Problems for Note); nia Ethical interposed often qualification motions are Attor- of a Former Government Law Firm . . . And even for tactical reasons. Disqualification, ney: Firm or Individual faith, such when made in the best 512; Comment, Conflicts of 1977 Duke L.J. delay. inevitably cause motions At- Government Interest and the Former footnotes omit- (citations Id. at 1246 (1977). torney, 65 Geo.L.J. concurring Ny- in Mansfield, ted). Judge necessary it is or We do not believe also be quist, could pointed out that a trial fully court to enter into appropriate for this tainted because: Indeed, did.22 fray, panel opinion as the . the former Government attor- “ethi- over what is uncertainty the current private in the later action use ney wisdom, when us the cal” underscores for information with matter respect to the issues, a re- considering adopting gained issue which was in confidence as a on approach primarily strained focuses employee and was unavailable to preserving integrity process. of the trial the other side. of Educa- expressed We this view in Board our review Id. at 1247 n. 1. We ended 1979), Nyquist, approach Nyquist by adopting a restrained prece- in which our length we reviewed at disqualification. attorney disqualification dents on judicial Weighing of efficient the needs pointed out: potential ad- against administration reading of the in this circuit Our cases meas- vantage preventive immediate power suggests that we have utilized attorney’s ures, unless we believe that counsel disqualify judges trial underlying conduct tends to “taint integrity preserve where necessary bal- disturbing trial” ... actions before of the adversary process of the presentations ance of the in one excep- words, rare them. In other above, should ways two indicated courts been ordered tions an attor- quite hesitant (1) only in two kinds cases: essentially both feder- ney. availability Given the attorney’s where an conflict of interests comprehensive disciplinary al and state in violation of Canons 5 and 9 the Code see, g., e. Local machinery, Rules of the Responsibility of Professional undermines Appeals for the United Court States vigor the court’s confidence of the 46(h) (1978), Second Circuit there client, § of his attorney’s representation usually no need to deal with all other (2) where commonly ... or more very in a kinds of ethical potentially is at least violations attorney Lef- they surface. See litigation information position privileged to use in which Co., 527 F.2d through prior rak concerning the other side v. Arabian Am. Oil partic- Newman, portion proach dissenting Judge this motions to continuing ularly opinion, present light un- ill-advised in en banc asserts that the certainty disagreement meaning provisions Respon- over the of the Code of Professional provisions. application sibility “applied] of the Code’s At should be as written.” regard “plain meaning” ap- 454. We Ceramco, don firm because Altman 1975); Inc. v. Lee was connected positive here and Id. at 1246 ent opinion that he saw threat 528 F.2d 1384 trial Arthur Andersen same time. Cf. Fund of sylvania 715. Nor is Although appellants assert sentation opinion “Chinese obtained the other will be tainted resentation of rejection not a case from to fear over to the official, firm in will not be Cir. before us for quist analysis, Pharmaceuticals, 5 position ruling of the from a close 1977); obtained Altman, [2d Cir.]. We believe any representing since the SEC wall,” Note, through prior of side. (citation Cinema 5 Ltd. v. where receiver making the receiver. Nor did Gordon the Gordon lack that claim.23 (2d overruling we see no basis on the record use there is conflicting interests by supra, at case reading district requires our affirmance of Cf. And Cir. Altman attempting & that this a privileged supra, no the use of information long firm’s continued unfair omitted). “vigor” law Co., United challenge the finally, certainly firm court. the district court’s files were turned before firm, representation as a receiver; 684-85, 687-91, use approach is Funds, Ltd. v. Using Cinerama, Inc., States See “potentially of taint of the F.2d information” the receiver government of informa justify rep the Gordon he retained It is also Penn no Werker’s the use the ^[268] appar at this is reason repre view. Pastore, trial Ny~ dis- the (2d at in a tion of the firm integrity of the trial process, attempt firm. separating garded qualification ence of alleged frauds. Under the ably as and the Gordon firm all with it25 was a don nized. text. this late tion of ming from Altman’s association the possible ance of impropriety is not sonable minds ly need not pede, screening procedure simply too slender a with the retention. from the litigation. serious ethical quist, Thus, because the district court as long possible .’ firm, held that supra, But there can be problem, However, as propriety . Altman consequences appearance to obtain redress for defendants’ resolve date as the district as . where the receiver the district perhaps altogether receiver that Altman had anything “appearance effective may as an associate not a the the ethical can of Gordon firm’s seriously delay and im- reed on which posed no Gordon used previously screening in this If of only . benefit, for the . court in at anything, impropriety court, no doubt that . apparently recog- do here at this time very isolating Altman . 1247. be based propriety of the this firm will have . circumstances, impropriety justifiably differ his counsel at threat . disqualifica- the receiver clear.” thwart, his representa- noted, particular- litigation; Thus, we that time to rest a appear- justifi- stem- to do pres- Gor- con- rea- Ny- dis- the the re- recognize We that a rule that concen- and Altman has en Gordon firm of taint on the threat fails to trates correct tirely participation screened from all adopting In case, possible all ethical conflicts. to the court satisfaction of district denigrate the im- approach, and the Nor is there reason to we do not SEC.24 portance attorneys of ethical conduct by believe that receiver retained the Gor- Newman, litigation against Judge opinion, panel 23. General Mo- author of the over an antitrust may employed Corporation if now asserts that the was trial be tainted tors while he Department Gordon firm as counsel. continues receiver’s Antitrust Division of Justice However, text, perceive accepted employment plaintiffs we state later attor- overruling private against ney basis in record for no court on district ain antitrust action substantially issue. same defendant the same con- duct. entirely distinguishable 24. The case therefore is Corp. City from General Motors of New associate, although he then an Altman was York, 1974), 501 F.2d 639 where an partner. is now a attorney responsibility had who substantial elsewhere, Accordingly, we vacate the opinion or practicing in this courthouse organized applaud and we the efforts judgment this case and affirm the to their ethi- bar to its members as educate district court. However, cal absent a threat obligations. trial, we continue to believe taint to the MULLIGAN, Judge, concurring Circuit surfacing dur- possible ethical conflicts part dissenting part. ing better ad- litigation generally I part of concur in that disciplinary dressed by “comprehensive attorney dis- opinion no which holds that bar, federal machinery” of state and see qualification in this case but I required 1246,26 Nyquist, possi- supra, 590 F.2d majority’s respectfully dissent from the While there bly by legislation.27 Plymouth, Inc. v. overruling Chrysler the “appearance unusual situations where Motors is sufficient impropriety” alone war- 1974) (en banc). rant we are disqualification, satisfied that believe, this is not Nor do we case. subject on this position this court asserts, as Judge Newman that a failure to Harmar tergiversation. been one of firm based on the Gordon Theatre, Warner Bros. Inc. v. Pic Drive-In possible impropriety will con- appearance tures, 1956), Inc., reh. 239 F.2d 555 r-ibute, skepticism about law- “public den., 1977), (2d Cir. cert. de 241 F.2d 937 yers.” integrity While sensitive to the nied, 2 L.Ed.2d 38 78 S.Ct. bar, rightly is also concerned Swan, (1957) with the concurrence of efficiency about fairness and J., (Clark, C. dissent Hand Learned

judicial process. believe those concerns We disqual ing), held of motions that denials disquali- would be disserved an order of the collateral order ify counsel fall within this, fication in a case such as where no doctrine of Cohen v. Beneficial Industrial threat of taint exists and where appellants’ 1221, 541, 69 93 Corp., Loan 337 U.S. S.Ct. motion to disqualify opposing counsel has L.Ed. (1949). implicitly 1528 Harmar was successfully crippled of a receiv- the efforts overruled Phillips, Fleischer v. 264 F.2d er, appointed at the request public of a denied, (2d 1959), 515 Cir. cert. 359 U.S. agency, to alleged obtain redress for serious 1002, 1139, (1959) 79 1030 S.Ct. 3 L.Ed.2d Thus, frauds on investing public. rath- but was resurrected our unanimous deci er than heightening public skepticism, we sion Chrysler en banc in in 1974. believe approach the restrained this Today but I refuse inter Silver attempts court had adopted towards dis- to participate sepulture. qualify opposing grounds counsel on ethical agonizing avoids In over unnecessary unseemly delay and addition to our own among problem, opinion reinforces confidence in the fairness this the conflict judicial attests to the process. difficulties circuits1 Reporter Interlocutory appeals disqualifi 26. The for the ABA denials of Committee that 1. Responsibility permitted drafted the of Professional cir Code cation are under Cohen in five recently Disciplinary Circuit, Akerly noted that the Code’s Barn cuits: the Third see v. Red Inc., disciplinary pro- System, 1977); were drafted for use in 551 F.2d 539 Cir. Rules ceedings Corp., and were not Scientific intended to be used as Kramer v. Control 534 F.2d 830, denied, governing (3d Cir.), disqualification rules 97 motions. Sut- 1085 cert. 429 U.S. ton, 90, Sing (1976); How Vulnerable Is the Code of Profession- S.Ct. 50 v. L.Ed.2d 94 Greene Co., Responsibility?, 497, denied, 1971), al er 57 514-16 509 F.2d N.C.L.Rev. 750 cert. Cir. (1979). 848, 54, (1972) The Code nevertheless will continue to 409 U.S. 93 89 S.Ct. 34 L.Ed.2d provide guidance (adopting case-by-case determining appeala approach for the courts in Circuit, bility); partici- Casualty whether a case would be the Fourth tainted see Aetna States, pation Surety attorney of an or a firm. & Co. v. United 570 See Fund of F.2d 1197 Funds, denied, 821, (4th Cir.), supra, 2; cert. 439 U.S. 99 567 F.2d at 227 n. NCK Or- 87, (1978) ganization, 128, (grants disqualifi Bregman, 58 L.Ed.2d 113 Ltd. v. 542 F.2d 129 Peat, appealable); 1976). cation n. 2 also MacKethan v. Cir. Marwick, Co., (4th 395 Mitchell & 557 F.2d Cir. 27. Cf. 18 U.S.C. §

-447 It Chrysler. seems appeals under Silver a solution. reaching are inherent which of a is whether or not the denial opinions. The issue there have been eleven such appealable is counsel motion court below. I of these we six affirmed order” ex- “collateral within so-called prob- a serious cannot characterize rule first ception judgment to the final majority The congestion. lem of calendar disagreement My in Cohen. announced ruling in favor of prior contends that a several upon with the based some assurance give disqualification will premises. appeals grants issues, that “there but raise nonfrivolous I appeals from assurance that no similiar de- impression the clear majority has The raise a motions nials of availability of an immediate (maj. p. 441) question.” op. substantial of dis- proliferation contributed noted, however, It should the af- use of such and the qualification motions categories the two firmance rates of purely tactical delay for other motions grants from opinions appeals published evidence on purposes. only available — signifi- denials —are appeals which this opinions is the question interlocutory cantly different.2 response court has issued Circuit, curiam); Risjord,-U.S.-, 1977) (per 100 S.Ct. see Co. v. the Fifth Circuit, L.Ed.2d-(1980); Corp. Daniel see & v. Ninth Brown Williamson Tobacco (5th Corp., 1977); Chugach Elec. Ass'n v. United Int’l 563 F.2d Cir. States District Circuit, February Alaska, Special re see In Seventh Court for the District 370 F.2d 441 (7th 1978); Jury, 1966), denied, Cir. (9th Grand 581 F.2d 1262 cert. 389 U.S. Cir. Westinghouse Corp. v. Elec. Kerr-McGee (1967) (stating S. Ct. 19 L.Ed.2d denied, (7th Cir.), cert. 439 U.S. F.2d 1311 580 955, petition appealable granting are not but denials (1978); 58 L.Ed.2d 346 99 S.Ct. Cohen); citing v. without Cord mandamus Circuit, New see State of Mexico the Tenth Aamodt, Smith, (9th 1964), clarified, (10th 1976), cert. Cir. 1157, (9th 1966) (stating that deni 370 F.2d denied, 51 L.Ed.2d 97 S.Ct. citing appealable Cohen but without als are not Harper, (1978); Fullmer 572 (10th mandamus). petition granting recently disqualifi has held that: The Sixth Circuit appeals 2. The of eleven from denials heard “where a District Court has a motion Corp., cation are In Matter 607 of Bohack counsel, disqualify party’s opposing disquali (2d 1979) (order denying F.2d 258 Cir. motion on the merits after [sic] denied said evidentiary hearing, reversed); Armstrong McAlpin, v. fication 606 (as here) en- and has 1979) (order (2d denying disqualifi F.2d Cir. 28 moving finding tered a the effect that reversed); In re Hartford cation Textile party challenged injured by be cannot curiam) (2d 1978) (per (order 872 Cir. 588 F.2d representation,” 975, denied, affirmed), U.S. 100 cert. 444 S.Ct. appeals disquali it will dismiss from denials of Funds, 473, (1979); Fund of Ltd. 62 L.Ed.2d 392 Baking Melamed ITT Continental fication. v. Co., (2d 225 Cir. v. 1977) Andersen & 567 F.2d Arthur 290, 1979) Co., (6th (motion 592 F.2d 295 Cir. Perot, reversed); Allegaert (order v. 565 disqualify prior representation based on of a affirmed); (2d 1977) (order SEC F.2d 246 Cir. competitor). v. See also General Electric Co. 1976) (per Sloan, (2d cu 679 Cir. v. 535 F.2d 1979), (6th Corp., 608 F.2d 265 Cir. Valeron denied, affirmed), riam) (order 430 U.S. cert. 930, 1318, denied, S.Ct. 63 cert. 445 U.S. 100 966, 1646, (1977); W. 52 357 97 S.Ct. L.Ed.2d (1980). Although in Me- the court L.Ed.2d 763 Haines, (2d 531 F.2d 671 Cir. T. Grant & Co. v. departing from considered itself to be lamed affirmed); 1976) (order Arabian Lefrak v. Chrysler, v. Silver Baking Melamed I.T.T. Continental Co., (2d 1976) 1136 American Oil Cir. 295, Co., supra, rule announced at (order affirmed); Foley P. J. & Co. v. Vander court’s clari in Melamed seems identical this bilt, (2d 1975) (case F.2d remand 523 1357 Cir. of in T. Grant & Co. fication Silver W. Ceramco, Pharmaceuticals, ed); v. Inc. Lee Haines, (2d v. 531 F.2d 671 Cir. 1975) (order affirmed); F.2d Cir. Gen court, now circuits In addition to this three York, City Corp. v. of New eral Motors interlocutory permit appeals of do not denials 1974) (order reversed). Cir. Coun Circuit, disqualification: see Com D.C. ting Armstrong in which this court reversal FCC, Boston, munity Broadcasting Inc. vacates, appeals from now six of eleven denials (D.C. 1976); Eighth disqualification in affirmance. resulted Circuit, re Rim Lia see In Multi-Piece Products appeals arising opinions (8th 1980), nine bility Litigation, There are 612 F.2d 377 grants disqualification. United States v. granted Tire Firestone & Rubber sub nom. cert. 448- II proliferation point,

But more to the be, logical has no there appeals, if such for deter- Cohen criteria established three set forth Cohen. bearing on the test mining decision” when an is “final depend does not under Cohen Appealability (1) must The order under 28 U.S.C. § business appellate upon quantum entirely collater- issue involve an important holding might generated which be merits; conclusively (2) al to have point below; This was ad- (3) favor of appealability. decided the court States, Abney judg- v. United dressed after final recently effectively unreviewable 7, 2034, 546-47, 2041 n. at 1225-26. n. 97 S.Ct. ment. Id. at 69 S.Ct. U.S. (1977). There a unani- 7, 52 L.Ed.2d 651 rulings on majority The concedes reject- pretrial mous Court held that collateral with- are motions ing claims of were final jeopardy former isNor there in the meaning of Cohen. decisions within Cohen and thus immediate- doubt that such conclusive. Al- orders are had ly appealable. The General Solicitor though dispute in this court original holding encourage argued that such a question over this was framed terms Burger Justice dilatory appeals. Mr. Chief Theatre, Harmar Drive-In finality, compare rejected argument, noting this Pictures, Inc., supra, Inc. v. Warner Bros. powers of the supervisory “well within the Phillips, 264 F.2d 515 with Fleischer v. appeals summary pro- courts of to establish 1959), that such denials it seems clear cedures weed out frivolous and calendars to are no other orders less conclusive than jeopardy.” claims of former Id. under appealable which the Court has found See, Boyle, U.S. g., Cohen. e. Stack observation, appeals Aside from (motion for (1951) 72 S.Ct. 96 L.Ed. 3 from denials of we have the States, bail); Abney reduction v. United costs, power to award counsel fees and L.Ed.2d 651 which provide ample against sanctions those (1977) (motion jeopar- to dismiss on double See, delay. whose intention is to create e. grounds). The dy are relevant facts which 1912, 1927; g., 28 Fed.R.App.P. U.S.C. §§ gen- to a decision whether to 38. I majority conclude that the has failed outset of erally fully available to provide any empirical support for the litigation. reason particular There is no premise requires a reexam- which it believes by the dis- anticipate position a reversal Chrysler; conceptu- ination of trict court. true, irrelevant; ally premise, even if occurs, and that if abuse practically, there finds of dis- that denials qualification satisfy it better tailored to two as- means to curtail motions do argues that pects de- It abuse than the draconian alternative of Cohen criteria. of a the harm caused denial nying interlocutory appeals. all an erroneous Ostrer, Any (2d 1979) (order grant- facts conclusions above 597 F.2d 337 drawn from the Cir. obviously subject affirmed); ing disqualification are to several caveats. The Board of Educa- may Nyquist, (2d 1979) sample be too reveal a statistical- tion v. small to 590 F.2d 1241 Cir. disqualifi- (order ly significant reversed); Taylor, difference. Grants of In re 567 F.2d 1183 cases, see, g., (2d 1977) (order e. United cation criminal Cir. reversed and remanded as Armedo-Sarmiento, may premature); supra, result In- Government of India v. Cook States v. dustries, Inc., higher (2d 1978) (order percentage 569 a because F.2d 737 Cir. reversals affirmed); Bregman, implicated, Organization, see Sixth Amendment values NCK v. are Ltd. California, 806, (2d affirmed); 1976) (order v. 422 U.S. 542 Faretta 95 S.Ct. F.2d 128 Cir. 2525, Cinerama, (1975). Inc., 562 That there Cinema 45 L.Ed.2d are Ltd. v. 528 1384 F.2d (2d 1976) (order affirmed); equal percentages among pub- of affirmances Cir. International Flanzer, necessarily opinions imply Corp. (2d lished does not Electronics v. 527 F.2d 1288 equal percentages 1975) (order reversed); are of affirmances there Cir. Armedo-Sarmiento, United States v. Nevertheless, considering opinions. (2d 1975) without 524 F.2d 591 Cir. us, say (order reversed); it is fair to the information available Hull v. Celanese per- roughly equivalent (2d 1975) (order affirmed). the existence of Cir. Five centages grants denials appeals grants of affirmances of of nine majority’s premise. support does not resulted in affirmance. Inc., irrep- If usually motion is not on this court retains its tradi- court de appeal arable because from judgment final if the grant new trial power tional a the successful termines counsel after final ruling is district found court’s contaminated party had a conflict which incorrect, p. op. (maj. to be judgment party trial, unsuccessful interests of the 438) respectfully disagree. We injured. The irremediably probably are public it is record has been made the ma I do not read Silver record. The been to which extent does, in all permit jority appealability poisoned by the informa privileged use of a denial of there has cases where apparent. may readily not be Retrial in Lefrak v. disqualification. suggested We empty ritual Co., F.2d counsel Arabian American Oil with new becomes 1975) v. attempts and W. T. Grant 1139-40 which is act characteristic 1976) that Haines, effects remedy the of erroneously decided appealable under Silver an order to be judgment. final Cohen-type orders after ap necessary that the issue it is Chrysler, Compania v. Co. Packers Colombia Swift & the trial. If pealed to taint of from relate S.A., 688-89, Caribe, na Del integrity of the involving issues 861, 864-65, (1950). L.Ed. involved, appeal be no trial are there should proc Moreover, judicial integrity See, Lefrak v. Chrysler. g., under e. is certainly ess has been sacrificed Co., (improper supra Arabian American Oil quali trial not redeemed a second client); & Co. solicitation of a W. T. Grant elements fied counsel. are the These Haines, v. supra communication (improper involved. The irreparable are harm which party).3 prob with an ethical adverse harm not would simply, is handled lems involved in such can be cases it, the need have “to bear the time and grievance a bar association committee expense may possi involved in a trial that separate proceedings. the courts in 438) op. p. (maj. tainted.” bly be interest, how Where there is conflict of disqualifi- urging granting In ever, sought disqualified and counsel harm cation do irreparable involve is information privileged possession Cohen, under appealable are therefore a former may against which be utilized trial will be de- majority suggests that the client, from agree I cannot that an obtained, layed until new counsel granting of a judgment final and the counsel client will separated client, protect new trial the interests stigma- will be counsel himself choice and integri in the much less the interest dealing with im- tized. We are of course sup have We ty judicial process. assuming all of these ponderables, but even ported an order of disqualification, weighty than eventualities, less they are Kaufman, words of Chief because litigant may those which afflict well stature of the profession “[t]he opponent repre- to trial forced where his courts, they and the esteem in which are sented have been held, attorney who dependent upon ab complete which privy privileged can conduct.” information improper sence of even a semblance of Patentex, against utilized Industries, be now him.4 Em le Inc. appealability 1292(a)(1) applying not in- in ly permits interlocutory appeals which facial This restriction does U.S.C. § volve this court consideration from orders elaborate injunctions. appealabili- refusing Westing of the merits in order to determine Gardner ty Broadcasting Co., any inquiry 478, 480, or in elaborate factual as house 437 U.S. 98 2451, 2453, approach (1978) that necessitated knell” “death 57 L.Ed.2d 364 S.Ct. appealability to to class certification denials construed limited Court the section to be recently Coopers “serious, disapproved involving irrepa perhaps which was in & orders those 2454, 463, Lybrand Livesay, rable, consequences.” 437 98 S.Ct. v. U.S. (1978). many it will 57 351 In cases L.Ed.2d have, course, little more than a consideration 4. We noted our reluctance to involve separate Disciplinary implicated. It is of his choice and Rule a client from counsel which is professional inquiry misconduct must make will not where the much more akin we 450 2454, 2457, (1978) 57 L.Ed.2d 351 S.Ct.

III States, 651, 658, 431 Abney v. United U.S. that majority The also contends Silver (1977) 651 2034, 2039, 97 L.Ed.2d 52 S.Ct. ap- interlocutory Chrysler, permitting “impor be issue simply provides that denying disqualification, peals from orders re tant” denied or important “too requirement that offended the Cohen that did state view.” The in Cohen Court important to be issue on be “too a serious presented issue in case Beneficial denied Indus- review.” Cohen Beneficial Cohen v. question. unsettled 546, at supra, 337 U.S. 69 Corp., trial Loan 547, at 69 337 U.S. Corp., Industrial Loan 1226. reads majority The Cohen to S.Ct. require created a S.Ct. at 1226. That interlocutory appeals be directed to those criteria beyond normally ment stated “raising legal, op- potentially decisive suggested apparently was first contrast, In posed factual, questions. Industries, Forte, Inc. v. Friendly in Donlon pri- most motions involve 935, 1968) 402 again (2d 937 Cir. factual, legal marily rather than determina- Philadelphia, Inc. v. Weight Watchers of tions ‘serious and present do [which] Int'l., Inc., 455 F.2d Weight Watchers 439) question[s].’” op. p. unsettled (maj. 1972). applied also in 773 It was (2d Cir. Assuming analysis this to be a correct Corp. v. Machines International Business Cohen, how then can the at the (2d Cir. States, 480 F.2d United argue granting same dis- time orders denied, J.), banc) (Mulligan, cert. 1973) (en under qualification appealable are Coheríl 2413, 40 L.Ed.2d U.S. There is orders are question no that such (1974). appealable exceptions as Cohen U.S.C. Industries, Inc. v. § Emle Paten- See gloss “public importance” This so-called tex, Inc., supra, at 570 n. 5. Precisely Cohen, however, applied has not been legal same factual and are issues involved consistently in has this circuit. Thus it whether grants the district or court denies that “many been noted collateral order disqualify. cases, motion to The majority can- including decisions from the recent ways. If, my not have Circuit, it both brothers will not Second appeals allow contend, disqualification general questions, motions do not settle and that threaten legal appeals. raise decisive in to potentially large issues of similar invite a number they Chrysler] unsettled areas of law then cannot The ruling [citing recent Silver granting orders reasonably denying contend that motions granting or appealable provides under Co- appealable disqualify counsel are supplied). hen. ample (emphasis illustration” Federal Practice Wright, Cooper, Miller & require Whether Cohen does in fact at 496. See also Procedure § sought appealed involve Note, Denying Orders Appealability legal question serious which has not been Disqualification Counsel Motions for settled has not been as clear as a mountain 450, 461 Courts, U.Chi.L.Rev. Federal in springtime. lake The statement of the (1978). Cohen criteria which we have recited above Supreme Having post-Cohen and which has been found no repeated Coopers & Lybrand authority upon has turned Livesay, 98 Court which charged prejudice opposing party proceedings bankruptcy. This does not sel litigation. danger or taint Haines, creates a clear In W. T. Grant & Co. v. of conflict of interest. However, (2d 1976). depended upon F.2d 671 we Cir. Bohack jurisdiction. exposes appellate Today’s par- opinion where the conflict of interests a former trial, prejudice ticularly regrettable client to and this taints the in that it shields these disqualification. have not hesitated to order cases from immediate review. The affront Bohack, integrity judicial process especially Matter of 607 F.2d 258 1979). appointment Hull since See also v. Celanese serious counsel routinely approved by 1975). involving bankruptcy court. F.2d 568 In cases Inc., Stores, bankrupts Department debtors-in-possession it has be- In re Arlan’s See appoint prior come routine to counsel as coun-

451 error, (1967) plain 305 makes it that importance” factor L.Ed.2d “public or indeed error, it, compelled gross distinguished I am now to even from a even mentioned gov- requirement. disregard repeated conclude that is not a Cohen and calculated States, supra, support v. the Court Abney erning rules, United to not suffice does from right appeal held that there was a issuance of writ. an motion to dismiss denying an order adhere For these reasons should jeopardy grounds un-

indictment double major- Chrysler. event, In any if the jeopar- not double der Cohen. Whether “public importance” correct ity is that case, however, will applies in a dy particular Cohen, we must factor is inherent then Id. 431 at U.S. depend upon its facts. from appeals to hear motions also refuse apparent at is now that 97 S.Ct. 2042. It conclude granting disqualification. We despite the orders are all such within Cohen that not that it is an inherent factor they normally un- fact that will involve no grant disqualifi- and the denial of both the issues rather settled of law on but under Cohen. cation appealable motions are primarily factual determina- require a tion. The issue of whether a should litigant Judge MESKILL, (concurring in Circuit oppo- required go to trial where his part): part dissenting represented privy counsel who is nent majority I concur part in that privileged information confidential and no attorney dis- opinion which holds to be presents important issue too serious required, but dissent qualification was review thus within So denied and is Cohen. concur overruling of Silver long exposes as the conduct unethical opinion. separate Mulligan’s taint as well as a trial to there is a collateral matter private interest GRAAFEILAND, Judge, VAN Circuit given Appeal review. prompt appellate dissenting part: concurring in part and disqualification from the denial of stronger presents even case Cohen disquali court The refusal district of a granting disquali- treatment than an order oppo fy counsel nor neither court leaves fication, any of a precludes possibility which may order The court remedy. nent without trial. tainted if subse later time Disbar quent appropriate. events make it suggestion 1292(b) certifica § Costen, 24 ment, 38 F. v. see United States adequately protect tion or mandamus will reversal, United see (C.C.D.Colo.1889), dis party lost motion to who has 1937), (6th v. States Bishop, If these were qualify is persuasive. not United States injunctive protection, see they equally sufficient then would remedies (N.D.Cal.1939), Mahaney, 27 F.Supp. where bar resort Cohen see Gesellschaft and denial 1292(b) requires compensation, is ordered. under Appeal § B. H. v. M. Telegraphie an Fur certification court Drahtlose by the district denied, Brown, cert. (D.C.Cir.), controlling question of law. F.2d 410 order involves a 296 U.S. 80 L.Ed. argues But this seldom agree, (1935), are remedies. I occurs one which available because cases such also therefore, today order doctrine we have decided on merits involve that the collateral of Cohen Beneficial Loan primarily application of facts to estab Industrial Smith, L.Ed. lished law. also Trone v. 69 S.Ct. See juris (9th give this Court 1977) (§ 1292(b) (1949) is not a does Be of this nature. of dis diction to proper appeals avenue review denials hear of Profes even Code qualification). provides provisions Mandamus cause the presently in a state Responsibility v. United sional protection. less assurance of Will 269, 273, permanent States, 90, 95, flux,* light we shed little 88 S.Ct. 389 U.S. * lated American Bar A Discussion Draft of the Model Rules Association presently being Rules will be submitted to Professional circu- final version of the Conduct to merits, appear- basis to avoid the I cient would discussion of our for with both appeal dismiss instant lack of simply disagree I impropriety. ance of jurisdiction. its and disqualification this standard for application to case. this NEWMAN, concurring in Judge, Circuit this stan- expressed majority, As by the part: part dissenting primary dard makes trial taint majority’s I concur with the conclusions disqualification, nearly for exclusive basis disqualification are not denying that orders impropriety” to of relegating “appearance interlocutory appeal1 on reviewable an In my best.2 remote and uncertain role at appealability should be ruling on much more view, be judiciary should effect; on the given mer- only prospective disqualifica- of use willing to the sanction its, however, I dissent. respectfully of ethics the canons tion to make sure opinion The not deal with majority’s does I can are not in the courtroom. violated the ultimate issue on the merits: whether a of the Code agree violation every that not representation Discipli- law firm’s violates Especially disqualification. result should nary 5-105(D) part- Rule when one of litigation has after when a violation occurs disqualified ners is under Disciplinary Rule fairer to the be begun, it will sometimes concludes 9-101(B). majority Instead the client to interests of both the that, representa- whether not the firm’s to conclusion permit continue the trial violates of tion the Code Professional Re- procedures for grievance and then use the sponsibility, disqual- a trial court should not when the al- But appropriate discipline. ify (a) representa- the firm unless firm’s leged of propriety violation concerns (b) the tion would taint the trial or case outset, a undertaking representation at one of those where the “unusual situations inquire lawyer court should into whether alone is suffi- ‘appearance impropriety’ violating ap- his firm are the Code disqualification.” cient to warrant not pearing litigation, whether or 446. F.2d at In this case finds neither a threat of nor a the trial.3 taint suffi- representation taint Delegates February taint” standard the House meeting. at its that a “trial somewhat ironic virtually now should become absolute at very interlocutory appeals time that from deni- My denying disqualifi- 1. conclusion that orders disqualification being prohibited. al cation are not within the collateral order doc- appropriately 3. courts It is clear that trial could trine of Cohen v. Industrial Loan Beneficial enforce, disqualifica- litigation, at outset Corp., 337 U.S. 93 L.Ed. only rules that are not with trial concerned (1949), entirely rests on the failure to However, approach pose such an would taint. requirement meet Cohen’s that review after appellate court consider- different issues for an judgment I final will be do not ineffective. ing a trial court’s denial agree suggestion majority opin- with the in the judgment At from final after trial. requirement ion that Cohen’s important” of an issue “too point judgment might reversal encompasses only to be deferred penalty for sometimes be an excessive violation legal questions application and not the decisive canons, costly litigants of the too to both the legal particular of settled rules facts. As' repre- public. Perhaps penalty for and the out, Mulligan supra points at canons, trial sentation where violation preclude interlocutory limitation would review simply has not taint forfei- occurred should be granting disqualification. of most orders “Im- attorney’s of a ture fees. if reversal Even portance” consequences to the relates judgment inappropriate, rulings appellate were parties (or lawyer), their not to whether the representation proper on whether public significance. issue would increase observance canons and Limiting disqualification provide guidance instances of trial useful trial courts. What- may justified appropriate ap- taint have been somewhat more ever sanctions pellate today’s decision, when, prior impose judgment, of dis- when denials court to after qualification subject interlocutory ap- disqualification is held have been were denial erroneous, sanction, peal. dilatory It be that fear interlocu- taint, tory appeals played part to instances of trial should some limited emer- standard, gence limiting trial when the can- available for use courts of the “trial taint” litigation. grounds disqualification. are violated at the outset for court-enforced It ons field, J., concurring). That risk is not elimi- inquiry is appropriateness of such screening provision lawyer when nated especially high the Code Funds, v. Arthur Ltd. conduct of firm. In Fund regulates the ethical issue 229 n. 10 Co., F.2d 9-101(B) is not Andersen & government attorneys. DR a law that within firm taint Wall 1977), with the trial a Chinese solely concerned protection thought inadequate a matter was to be if handles attorney occur an from one against re the risk that information for which he had substantial previously adverse clients, interests lawyer. It of the firm’s sponsibility government as a clients, would be possibility also to another of the firm’s seeks avoid “the manifest to another. partner law from one transmitted ... former Government [a litigation it crucial If in this should become public action as a yer’s] legal officer representing (or open lawyers outcome for the charge be influenced to the that it to the in- influenced) confidential plaintiff of later to know some hope had been upset learned privately uphold formation while in being employed Altman Corp. I not see government employ, why Motors do a he had done.” what General York, thought 648-49 more im- should City of New Chinese Wall originated traditionally have pervious to information Courts investigation than to government the enforcement from a most sensitive to with ad- from a client designed governmental to limit information learned standards as sensitive power. should least verse interests.5 They be at specifically to the enforcement of standards deemed to Second, case should be the misuse of designed protect against taint meet the majority’s exception 9-101(B) power. The of DR purposes where the standard for an unusual situation there is no fully cannot achieved unless dis- warrants appearance impropriety attorney possibility government the need qualification. In addition to (or be) can be seem to influenced a disqualify the firm to all risk that avoid prospect private employment. of later To his au- government attorney might misuse requires disqualifi remove that possibility ap- thority gain, in hope of private later han only attorney, cation not when impropriety pearance exists here because matter, firm.4 dling a related but also of his screening proce- of the risk that the further may well be stan- majority’s Even under the limited dure will not be effective. It develops, litigation Altman’s firm that disqualification, dard for no matter how First, part- to his case. if disqualified should be in this will in fact not disclose Altman exercising while primary is as he learned accepted anything threat of taint ners substantia] responsibilities ground such threat disqualification, government will not public Education v. present here. related But the Board matters. law, course, 1979), it was rules Nyquist, 590 F.2d 1241 believe it. Of can- including disqualification, attor- recognized that a former Government the rules of appre- information unfounded ney’s possession of confidential not cater to all the often we do not deal public. unavailable to the side would risk hensions of the But other just generalized skepti- dis- here with sufficiently trial taint to warrant his (Mans- lawyers. policymaking qualification. Id. at n. 1 cism about 1247-48 there is Wall within a law In this case firm breached no reason doubt has been However, fairly govern- uprightly Altman acted ment be an issue of fact. whether would ethics, attorney. But the canons of has prospectively safe- such a device is guard a sufficient out, properly pointed designed been guidance justify representation forbidden attorney, simply for the honorable not is an issue of issue was not Code law. That against proscription as a misconduct. General panel opinion considered qualification because dis- Motors, supra, 501 F.2d at 649. thought of the firm was to be principle required by the Code and the opinion suggests ab- 5. The that the case, regardless of whether a Motors General finding risk taint sence of District is a factual adequately prevent could taint. Wall Chinese Court, clearly to be errone- shown agree ous. I would whether a Chinese disqualify to maintain the motion to largest grant legal profession’s body of the on which membership organization principles ethical important most influential Respon- of Professional the Code is adopted a Code based. representing Altman that bars sibility 9-101(B)) and (DR this case plaintiff 5-101(D)). (DR

bars as well partners ap- understandably will see

The public when, despite

pearance impropriety Altman’s law prohibitions,

clarity of these representa-

firm allowed to continue Altman because assurance case. partners HOWE, Sr., Plaintiff-Appellant, and his will not discuss Robert justifiably perceive also im- The public when, propriety despite prohibition CIVILETTI, Attorney General Benjamin canons, handles a government lawyer a States, and Norman for the United Carl- subsequently law he matter and the firm son, States of the United Bu- Director joins representation disqualified from is not Defendants-Appellees, Prisons, reau of To allow in a substantially related matter.6 government representation leaves the Hogan, Commissioner of Cornelius action as lawyer that his open charge Vermont, Corrections, State have been influ- legal officer Intervenor. employed hope being enced of later No. 79-2251. done, Docket uphold what he had as this Court Motors, supra. ap- warned in General The Appeals, United States Court pearance impropriety should be avoided Second Circuit. firm. disqualification of Altman’s Argued 1980. March Re- Whether Code of Professional present should maintain its rule sponsibility 23, 1980. Decided June disqualification of the former requiring the

government attorney’s firm is a matter on minds differ.

which reasonable Seri- expressed

ous concerns have written,

Code, restrict may unduly as now

private employment opportunities

government impair the lawyers thereby

government’s competent ability to attract receiving at-

attorneys. That issue now charged responsibility

tention those reviewing revising

for the con- perhaps But

tent of the Code. until some concrete

evidence of adverse consequences supplies

grounds changing present the Code’s written,

provisions, I would apply them

find Altman’s firm to be in violation of the case, representation

Code in this temptation majority opinion cally designed to suggests remove the The that counter- opportunity vailing governmental considerations are to be found in the au- misuse of public expectation efficiency judicial thority. Moreover, agree that the de- I cannot process, lay delay resulting subsequently, and that further to date and if ordered, chargeable appellants. were Gordon firm should firm, efficiency, quite properly be tolerated. I do not onus think even rests with the Gordon pursuit alleged representation wrongdoing, justifies which undertook in the face prohibition. specifi- a rule of clear failure to enforce ethics that is the Code’s

Case Details

Case Name: Michael F. Armstrong v. Clovis McAlpin

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 20, 1980

Citation: 625 F.2d 433

Docket Number: 745, Docket 79-7042

Court Abbreviation: 2d Cir.