742 F.2d 181 | 5th Cir. | 1984
Lead Opinion
Whether a district court order disqualifying counsel is immediately appealable is our first concern in considering this motion to stay proceedings pending appeal in a .civil suit. The Supreme Court has held that an order disqualifying counsel in a criminal case is not final in effect and therefore not appealable. The analysis in that decision requires us to change our course in civil cases and to hold that we lack jurisdiction to entertain an interlocutory appeal. Accordingly, we deny the stay.
I.
Patt Gibbs and Tamara Utens are members of a union, the Association of Professional Flight Attendants (APFA). Gibbs had been the union president and Utens its secretary-treasurer. They sued the union challenging both its participation in another law suit and various other actions taken by the union’s present officers and directors. The same lawyer filed two answers, one on behalf of APFA and the other on behalf of those of the defendant union officials who had not opposed its participation in the earlier suit. He also filed a motion seeking leave for the union to intervene in the counts brought against the individual defendants.
Gibbs and Utens countered with a motion to disqualify the lawyer. They contended that his real or apparent favor toward the union officials for whom he had appeared indicated his predisposition against the union faction who had filed this suit and interfered with his continued representation of the union. In addition, they argued that his dual representation created the risk of breach of confidentiality. The lawyer filed a motion seeking to withdraw from further representation of the individual defendants and an amended motion to limit the union’s intervention attempt to those claims in the individual counts that concerned the union.
The district court held that, to avoid the appearance of impropriety, union counsel must avoid any form of direct affiliation with any union faction. Because he had failed to maintain such impartiality, the district court disqualified him from representing either the union or the individual defendants. The union alone appeals, seeking a stay of the order pending appeal.
II.
Until final judgment, the orders of a district court are not appealable.
The Supreme Court recently answered one of the reserved questions. In Flanagan v. United States,
Between Firestone and Flanagan, we held in three cases that such an order in a
The pages of the Federal Reporters already contain thorough discussion of whether disqualification orders should be treated differently in criminal than in civil cases. It would be pedantic again to recite those pros and cons; for the result in this case is determined by application of the analysis announced by the Supreme Court in Flanagan, an analysis that appears equally applicable to criminal and civil cases.
The requirements of the collateral order exception to the finality rule, as articulated by the Court in Coopers & Lybrand, are that: (1) the order “must conclusively determine the disputed question”; (2) it must “resolve an important issue completely separate from the merits of the action”; and (3) it must “be effectively unreviewable on appeal from a final judgment.”
Only the Ninth Circuit had, before Flanagan, distinguished between civil and criminal cases, basing its decision on analysis of the third element, eventual reviewability. In United States v. Greger,
Before Flanagan, the lower courts had regarded disqualification orders in civil cases as presenting considerations that did not require them to become “enmeshed in the factual and legal issues comprising [the litigant’s] cause of action.”
Two circuits have examined the impact of Flanagan on the immediate appealability of orders disqualifying counsel. In two
The District of Columbia has also upheld the appealability of disqualification orders. In Koller v. Richardson-Merrell, Inc.,
Despite these decisions, we feel constrained to apply the Court’s Flanagan analysis to disqualification orders in civil cases. Although the Court stressed the importance of finality in criminal trials and the consequent need to avoid trial interruptions, we see no basis for concluding that disqualification orders in civil trials lend themselves more readily to consideration apart from the merits of the litigation than such orders in criminal cases. In Firestone, the Court reasoned, “[t]he propriety of the district court’s denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment.”
When a district court grants disqualification, the effect of the court’s action is immediate and measurable. The party opposing the motion is abruptly deprived of his counsel, and, provided he desires to proceed with his action, the litigation is disrupted while he secures new counsel. In this situation, the reviewing court need not wait until final judgment to evaluate the impact of the lower court’s order.20
This analysis related to the reviewability of the order on appeal after final judgment— the third Coopers & Lybrand element — not the separateness of the issue from the merits.
Policy considerations may be irrelevant to determining whether the second Coopers & Lybrand requirement has been satisfied. If they are to be weighed, however, some effect must be given to the patently stronger interest of the criminal defendant in being represented by counsel of his choosing. If concerns about speedy resolution of criminal cases outweigh that interest, and somehow establish such a nexus between the disqualification question and the merits as to defeat appealability, then even-handedness forbids placing the civil litigant in a better position than the criminal defendant. The interests of the lawyer who is barred from participating in either type of case appear to be irrelevant in deciding the “finality in effect” of the order on the litigant; but, even if that is to be considered, we see no reason why the potential fees and prestige arising from handling the civil case should be more highly regarded than the prospects of the criminal-case retainer.
Whether orders denying disqualification in both civil and criminal cases are appealable has been decided. Whether orders granting disqualification in criminal cases are appealable has been decided. It would be anomalous to hold that in this domain there remains one exception: disqualification in a civil case is different. Neither language, nor logic, nor policy appears to us to warrant such an oddity. Therefore, we regard the rule announced in Duncan to have been superseded by Flanagan, despite Flanagan’s professed restraint, and accordingly hold that disqualification orders are not appealable under the collateral-order exception to the finality requirement.
We recognize that we hereby create a conflict in the rulings of the circuit courts. The issue is recurrent and important, however, and its final resolution can be accomplished only by a definitive ruling from the Supreme Court, absent the most unlikely event of a statutory change.
The request for a stay is DENIED.
. 28 U.S.C. § 1291. There are a few exceptions not pertinent here.
. 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).
. Firestone Tire and Rubber Co. v. Risjord, supra, 449 U.S. at 372 n. 8, 101 S.Ct. at 672 n. 8.
. —U.S. —, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984).
. Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020 (5th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981); Cossette v. Country Style Donuts, Inc., 647 F.2d 526, 528 n. 2 (5th Cir.1981); In re Corrugated Container Antitrust Litigation, 659 F.2d 1341, 1344 (5th Cir.1981).
. See, e.g., Gough v. Perkowski, 694 F.2d 1140, 1142-45 (9th Cir. 1982); Groper v. Taff, 717 F.2d 1415, 1417 (D.C.Cir.1983); Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 718-21 (7th Cir. 1982); Ah Ju Steel Co. v. Armco, Inc., 680 F.2d 751, 752-53 (C.C.P.A.1982); In re Coordinated Pre-Trial Proceedings in Petroleum Products Antitrust Litigation, 658 F.2d 1355, 1156-58 (9th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982); Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 n. 2 (2d Cir.1981).
. 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1984) (footnote omitted).
. 657 F.2d 1109, 1110-1113 (9th Cir.1981).
. See Gough v. Perkowski, supra, at 1142-44 (quoting Armstrong v. McAlpin, 625 F.2d 433 at 440-41 (1980)).
. —U.S. —, —, 104 S.Ct. 1051, 1056-57, 79 L.Ed.2d 288 (emphasis added).
. Id. at 1057.
. Coopers & Lybrand, supra, 437 U.S. at 469, 98 S.Ct. at 2458. See, e.g., Gough v. Perkowski, supra, 694 F.2d at 1142.
. In re Coordinated Pre-Trial Proceedings in Petroleum Products Antitrust Litigation, supra, 658 F.2d at 1357 (emphasis added).
. Oneida Indian Nation of Wisconsin v. New York, 732 F.2d 259 (2d Cir.1984).
. Interco Systems, Inc. v. Omni Corporate Services, Inc., 733 F.2d 253, 255 (2d Cir.1984).
. 625 F.2d 433, 437-41 (2d Cir.1980) (en banc), vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981) (holding grants of disqualification motions in civil cases immediately appealable, but anticipating Supreme Court’s Firestone decision by holding denials of such motions not appealable).
. 737 F.2d 1038 (D.C.Cir.1984).
. Flanagan, 104 S.Ct. at 1057.
. 449 U.S. at 377, 101 S.Ct. at 675.
. The Court in Firestone assumed the second element was decided, 449 U.S. at 376, 101 S.Ct. at 674. We held in Duncan that it was. 646 F.2d at 1029 n. 9.
Dissenting Opinion
dissenting:
I respectfully dissent.
I find the reasoning of Roller v. Richardson-Merrell, 737 F.2d 1038. (D.C.Cir. 1984) persuasive, and am convinced that orders disqualifying counsel in civil cases are sufficiently distinguishable in character and effect from such orders in criminal cases as to render inapplicable the reasoning and holding of Flanagan v. United States, — U.S. -, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Indeed, it seems to me that the reasoning of Flanagan encourages us to draw distinctions between civil litigation and criminal prosecutions for the purposes of analyzing the immediate appealability of counsel disqualification orders. The distinction between criminal prosecutions and civil litigation stems from the emphasis criminal prosecutions place on the rights of the individual defendant which often control the final judgment in the case. Because in criminal prosecutions, this “respect for the individual is the lifeblood of the law,”
Consequently, it is my view that unlike the counsel disqualification order in a criminal case, such an order in a civil case presents for appeal each and every criterion necessary to create an exception to the final judgment rule under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We can, on this appeal before us, conclusively determine the disputed question of whether counsel was properly disqualified; second, the important issue for determination, dissimilar to such an order disqualifying counsel in a criminal case, is completely separate from the merits of this action; and, finally, also distinguishable from a criminal case, the disputed question here would not be effectively reviewable on appeal from a final judgment in this case because, first, the defendant has no constitutional right to effective counsel and hence no presumption of prejudice inures in his favor, and, second, prejudice from an order disqualifying counsel is virtually impossible to prove on review of a final judgment on the substantive merits in a civil case.
I cannot better explain the reasoning for my dissent further than has Judge Wald in Koller. For these and those reasons, I respectfully dissent.
. Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring).