Firestone Tire & Rubber Co. v. Risjord
Opinion of the Court
delivered the opinion of the Court.
This case presents the question whether a party may take an appeal, pursuant to 28 U. S. C. § 1291,
I
Respondent is lead counsel for the plaintiffs in four product-liability suits seeking damages from petitioner and other manufacturers of multipiece truck tire rims for injuries caused by alleged defects in their products.
Petitioner was at all relevant times insured by Home Insurance Co. (Home) under a contract providing that Home would be responsible only for some types of liability beyond a minimum “deductible” amount. Home was also an occasional client of respondent's law firm.
In accordance with the District Court’s order, respondent filed an affidavit in which he stated that he had infprmedboth the plaintiffs and Home of the potential conflict and that neither had any objection to his continuing representation of them both. He filed supporting affidavits executed by the plaintiffs and by a representative of Home. Because he had satisfied the requirements of the pretrial order, respondent was able to continue his representation of the plaintiffs. Petitioner objected to the District Court’s decision to permit respondent to continue his representation if he met the stated
Although it did not hear oral argument on the appeal, the Eighth Circuit decided the case en banc and affirmed the trial court’s order permitting petitioner to continue representing the plaintiffs.
II
Under § 1291, the courts of appeals are vested with “jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.” We have consistently interpreted this language as indicating that a party may not take an appeal under this section until there has been “a decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Coopers
Our decisions have recognized, however, a narrow exception to the requirement that all appeals under § 1291 await final judgment on the merits. In Cohen v. Beneficial Industrial Loan Cory., supra, we held that a “small class” of orders that did not end the main litigation were nevertheless final and appealable pursuant to § 1291. Cohen was a shareholder’s derivative action in which the Federal District Court refused to apply a state statute requiring a plaintiff in such a suit to post security for costs. The defendant appealed the ruling without awaiting final judgment on the merits, and the Court of Appeals ordered the trial court to require that costs be posted. We held that the Court of Appeals properly assumed jurisdiction of the appeal pursuant to § 1291 because the District Court’s order constituted a final determination of a claim “separable from, and collateral to,” the merits of the main proceeding, because it was “too important to be denied re
Because the litigation from which the instant petition arises had not reached final judgment at the time the notice of appeal was filed,
An order denying a disqualification motion meets the first part of the “collateral order” test. It “conclusively determine [s] the disputed question,” because the only issue is whether challenged counsel will be permitted to continue his
In attempting to show why the challenged order will be effectively unreviewable on final appeal, petitioner alleges that denying immediate review will cause it irreparable harm. It is true that the finality requirement should “be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered,” Mathews v. Eldridge, 424 U. S. 319, 331, n. 11 (1976). In support of its assertion that it will be irreparably harmed, petitioner hints at “the possibility that the course of the proceedings may be indelibly stamped or shaped with the fruits of a breach of confidence or by acts or omissions prompted by a divided loyalty,” Brief for Petitioner 15, and at “the effect of such a tainted proceeding in frustrating public policy,” id., at 16. But petitioner fails to supply a single concrete example of the indelible stamp or taint of which it warns. The only ground that petitioner urged in the District Court was that respondent might shape the p'roducts-liability plaintiffs’ claims for relief in such a way as to increase the burden on petitioner. Our cases, however, require much more before a ruling may be considered “effectively unreviewable” absent immediate appeal.
To be appealable as a final collateral order, the challenged order must constitute “a complete, formal and, in the trial court, final rejection,” Abney v. United States, supra, at 659, of a claimed right “where denial of immediate review would render impossible any review whatsoever,” United States v. Ryan, 402 U. S. 530, 533 (1971). Thus we have permitted appeals prior to criminal trials when a defendant has claimed that he is about to be subjected to forbidden double jeopardy,
An order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after final judgment, and not within the much smaller class of those that are not. The 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. The decision whether to disqualify an attorney ordinarily turns on the peculiar factual situation of the case then at hand, and the order embodying such a decision will rarely, if ever, represent a final rejection of a claim of fundamental right that cannot effectively be reviewed following judgment on the merits. In the case before us, petitioner has made no showing that its opportunity for meaningful review will perish
We hold that a district court’s order denying a motion to disqualify counsel is not appealable under § 1291 prior to final judgment in the underlying litigation.
So ordered.
Title 28 U. S. C. §1291 provides in relevant part: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.”
Pursuant to 28 U. S. C. § 1407, the Judicial Panel on Multidistrict Litigation has ordered these and other suits against multipiece truck tire rim manufacturers consolidated for trial in the United States District Court for the Western District of Missouri. App. 73.
The firm included Home in a list of its clients in the Martindale-Hubbell- Law Directory and had occasionally represented the insurer on matters unrelated to the multipiece rim litigation. At the time that petitioner filed its disqualification motion, respondent was defending Home and five other carriers against a suit on certain fire insurance policies. Home does not pay respondent or his firm a retainer.
In April 1979 Home sent letters containing similar advice to the defendants in some of the other consolidated suits. The plaintiffs in these other actions were not represented by respondent.
In the alternative, the District Court stated that respondent could terminate his representation of Home in the unrelated matter. See n! 3, supra.
The trial court based its determination that a potential conflict existed on its interpretation of Disciplinary Rule 5-105 of the Code of Professional Responsibility, most of which had been adopted verbatim as a local rule of court. That rule prohibits a lawyer from “continu[ing] multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client” except when “it is obvious that he can adequately represent the interest of each and if each consents to the representation . . . .” The District Court agreed with petitioner that it was likely that the dual representation would adversely affect respondent’s “ 'exercise of his independent judgment App. 160, quoting International Business Machines Corp. v. Levin, 579 F. 2d 271, 280 (CA3 1978). It therefore ordered that he “either comply with the consent requirement ... or terminate his representation . . . .” App. 160.
The District Court certified its pretrial order on disqualification for interlocutory appeal pursuant to 28 U. S. C. § 1292 (b), which provides in relevant part:
“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order . . . .” Neither party elected to> proceed under § 1292 (b). Respondent chose to comply with the order rather than appeal. Petitioner chose to appeal the denial of its motion under § 1291 rather than under § 1292 (b). After filing its notice of appeal, petitioner moved that respondent be held in contempt for allegedly failing to comply with the pretrial order, but this motion was subsequently withdrawn.
The Court of Appeals also stated that orders granting motions to disqualify counsel would be appealable under § 1291. 612 F. 2d, at 378. That question is not presented by the instant petition, and we express no opinion on it. Neither do we express any view on whether an order denying a disqualification motion in a criminal case would be appealable under § 1291.
During pendency of its appeal to the Eighth Circuit, petitioner filed a federal-court action against Home, charging that by consenting to respondent’s continuing representation of the plaintiffs in the multipiece rim prod-uets-liability suits, the insurer had breached its fiduciary duty to petitioner. App. 217. At the time of oral argument, counsel for petitioner represented that no resolution had been reached in that litigation. Tr. of Oral Arg. 7-8.
In addition to the Eighth Circuit decision currently before us, five other Circuits now follow the rule that denials of disqualification motions are not appealable. See In re Continental Investment Corp., 637 F. 2d 1 (CA1 1980); Armstrong v. McAlpin, 625 F. 2d 433 (CA2 1980), cert. pending, No. 80-431, overruling Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F. 2d 800 (CA2 1974); Melamed v. ITT Continental Baking Co., 592 F. 2d 290 (CA6 1979) (Melamed II), overruling Melamed v. ITT Continental Baking Co., 534 F. 2d 82 (CA6 1976) (Melamed I); Community Broadcasting of Boston, Inc. v. FCC, 178 U. S. App. D. C. 256, 546 F. 2d 1022 (1976); Cord v. Smith, 338 F. 2d 516 (CA9 1964). Five Circuits permit such appeals under §1291. See Westinghome Electric Corp. v. Kerr-McGee Corp., 580 F. 2d 1311 (CA7 1978); MacKethan v. Peat, Marwick, Mitchell & Co., 557 F. 2d 395 (CA4 1977); Kroungold v. Triester, 521 F. 2d 763 (CA3 1975); Fullmer v. Harper, 517 F. 2d 20 (CA10 1975); Uniweld Products, Inc. v. Union Carbide Corp., 385 F. 2d 922 (CA5 1967), cert. denied, 390 U. S. 921 (1968).
Counsel for respondent represented at oral argument in this Court that the case was, at that time, in the discovery stage. Tr. of Oral Arg. 35-36.
See n. 10, supra.
Although there may be situations in which a party will be irreparably damaged if forced to wait until final resolution of the underlying litigation before securing review of an order denying its motion to disqualify opposing counsel, it is not necessary, in order to resolve those situations, to create a general rule permitting the appeal of all such orders. In the proper circumstances, the moving party may seek sanctions short of disqualification, such as a protective order limiting counsel’s ability to disclose or to act' on purportedly confidential information. If additional facts in support of the motion develop in the course of the litigation, the moving party might ask the trial court to reconsider its decision. Ultimately, if dissatisfied with the result in the District Court and absolutely determined that it will be harmed irreparably, a party may seek to have the
The United States, in its brief amicus curiae, has challenged petitioner’s standing to attack the order permitting respondent to continue his representation of the plaintiffs. In light of our conclusion that the Eighth Circuit was without jurisdiction to hear petitioner’s appeal, we have no occasion to address the standing issue.
Two other Courts of Appeals that have overruled their precedent and held that orders denying disqualification motions are not immediately ap-
Concurring Opinion
with whom The Chief Justice joins, concurring in the result.
I agree with the result in this case and the analysis of the Court so far as it concerns the question whether an order denying disqualification of counsel is “effectively unreviewable on appeal from the final judgment.” The Court’s answer to this question is dispositive on the appealability issue. Since it is completely unnecessary to do so, however, I would not state, as the Court does, ante, at 375-376:
“An order denying a disqualification motion meets the first part of the 'collateral order’ test. It 'conclusively determine [s] the disputed question,’ because the only issue is whether challenged counsel will be permitted to continue his representation.”
In Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), Justice Jackson stressed that the order before the Court was “a final disposition of a claimed right” and specifically distinguished a case in which the matter was “subject to reconsideration from time to time.” Id., at 546-547. Just recently in Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978), we held that an order denying class certification was
It is not at all clear to me, nor has it been to courts considering the question, that an order denying a motion for disqualification of counsel conclusively determines the disputed question. The District Court remains free to reconsider its decision at any time. See Armstrong v. McAlpin, 625 F. 2d 433, 439 (CA2 1980) (en banc), cert. pending, No. 80-431; id., at 451 (Van Graafeiland, J., concurring in part and dissenting in part); Fleischer v. Phillips, 264 F. 2d 515, 516-517 (CA2), cert. denied, 359 U. S. 1002 (1959). The Court itself recognizes this possibility, ante, at 378-379, n. 13. And in doing so the Court is not only being abstractly inconsistent with its conclusion that the first prong of the Cohen test is satisfied. In this very case the possibility of reconsideration by the trial judge cannot be dismissed as merely theoretical. Petitioner’s claim is that respondent will advance only those theories of liability which absolve the insurer, or will advance those theories more strenuously than others. Although it is impossible to discern if this is true before trial, the issues may become clearer as trial progresses and respondent actually does present his theories. As in MacDonald, it cannot be assumed that a motion made at a
Because of what seem to me to be totally unnecessary and very probably incorrect statements as to this minor point in the opinion, I concur in the result only.
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