Freivogel on Conflicts

Appealability of Disqualification

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Following is a brief review of whether an order granting or denying a motion to disqualify counsel is appealable.  The next paragraph deals with federal courts, where the situation is fairly clear.  The paragraph after that deals with state courts, where the differences from state-to-state can be significant.  In connection with state courts, we have not attempted a state-by-state review, but rather have gathered representative decisions to illustrate the various ways the states differ.

        Federal Courts.  Orders granting or denying motions to disqualify under 28 U.S.C. § 1291 are not appealable.  Richardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (order granting motion to disqualify); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (order denying motion to disqualify).  In In re Lewis, 212 F.3d 980 (7th Cir. 2000), the trial judge had granted a motion to disqualify.  The losing parties filed a petition for mandamus in the appellate court, as a way to circumvent the holding in Richardson-Merrell.  The court denied mandamus, saying that the damages the plaintiffs may suffer as a result of the disqualification are not the kind that mandamus was intended to remedy.  The court noted that the Supreme Court in Richardson-Merrell said in footnote 13 that mandamus could be appropriate, but that such a case would require "exceptional circumstances."  In Lewis C. Nelson & Sons, Inc. v. United States Dist. Ct., 2006 U.S. App. LEXIS 16978 (9th Cir. July 6, 2006), the Ninth Circuit considered on the merits a petition for writ of mandamus from an order denying a motion to disqualify (but denied the petition). For an earlier case in which the court granted mandamus after a firm was disqualified, see In re Sandahl, 980 F.2d 1118 (7th Cir. 1992).  For a disqualified lawyer's lame attempt to distinguish Richardson-Merrell, see Hammond v. City of Junction City, 2003 U.S. App. LEXIS 25862 (10th Cir. Dec. 19, 2003).  In DeFazio v. Wallis, 500 F. Supp. 2d 197 (E.D.N.Y. 2007), the court held that a disqualification order is not subject to FRCP Rule 60 relief. USA Dent Co., LLC v. Eagle, No. 21-2432-JWB (D. Kan. May 31, 2022) (appointment of debtor's counsel in bankruptcy not appealable).

        In re Realtek Semiconductor Corp., No. 2023-147 (D.C.Cir. Sept. 25, 2023). Realtek filed this complaint before the International Trade Commission claiming the importation of AMD chips infringe on Realtek's patents. A hearing is pending before an ALJ. Realtek intends to call a lawyer ("Lawyer A") as a witness because Lawyer A had represented Realtek in negotiating a relevant license agreement. AMD moved to strike Lawyer A as a witness. The ALJ granted that motion and denied reconsideration. Realtek filed this petition for mandamus to disqualify the lawyer ("Lawyer B") who made the motion to strike Lawyer A as a witness, because Lawyer B represents Lawyer A "in other litigation." In this opinion the D.C. Circuit denied the petition for mandamus, in part because Lawyer B would not be cross-examining Lawyer A in this proceeding, thus not violating ABA Rule 1.7(a). The other ground for denying the petition is that the ALJ's decision should not be subject to an interlocutory appeal, citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981).

        In Cardona v. General Motors, 939 F. Supp. 351 (D.N.J. 1996), the court denied a request to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).  The opinion contains an excellent discussion of how that section relates to motions to disqualify.  And, in DeVittorio v. Hall, 2008 U.S. Dist. LEXIS 6595 (S.D.N.Y. Jan. 29, 2008), the court held that an order denying disqualification on a simple substantial relationship issue does not qualify for § 1292(b) treatment.

        Denial of Motion to Employ Debtor’s Counsel not AppealableIn re Black Diamond Mining Co., LLC, 2009 Bankr. LEXIS 467 (6th Cir. Bankr. App. Panel Mr. 19, 2009).

        Denial of Application to Employ Creditors’ Committee Counsel not AppealableIn re Nashville Senior Living, LLC, 2010 Bankr. LEXIS 875 (6th Cir. B.A.P. April 1, 2010).

        In re Rodriguez-Borges, 2013 U.S. Dist. LEXIS 52528 (D.P.R. March 28, 2013).  Chapter 7.  In this opinion the district judge held that an order of the bankruptcy judge disqualifying Debtor's counsel was not appealable to the district judge as of right.  

        State Courts.  Again, the following list of cases does not purport to be exhaustive review of past decisions.  It is representative only.  As we learn of new decisions - as well as older ones - we will add them.  In Re AmSouth Bank, N.A., 589 So. 2d 715 (Ala. 1991) (court allowed mandamus); Meehan v. Hopps, 288 P.2d 267 (Cal. 1955) (denial of motion is appealable); Reed v. Superior Court, 111 Cal. Rptr. 2d 842 (Cal. App. 2001) (appeal of denial of motion does not stay proceedings below automatically);  Vivitar Corp. v. Broidy, 192 Cal. Rptr. 281 (Cal. App. 1983) (granting of motion is appealable); El Senoussi v. Kona Coast Props., LLC, 2009 Cal. App. Unpub. LEXIS 6764 (Cal. App. Aug. 20, 2009) (should have appealed sooner rather than later); Burger & Burger, Inc. v. Murren, 522 A.2d 812 (Conn. 1987) (neither order granting, nor order denying, motion to disqualify appealable); Acierno v. Hayward, 859 A.2d 617 (Del. 2004) (order granting disqualification not appealable as of right; certification procedure available); Gottlieb v. State of Delaware, 697 A.2d 400 (Del. 1997) (revocation of pro hac vice status not appealable); Sayers v. Sayers, 2014 Fla. App. LEXIS 8793 (Fla. App. June 9, 2014) (order granting disqualification not appealable, citing Zarco Supply Co. v. Bonnell, 658 So. 2d 151 (Fla. App. 1995)); Cerillo v. Highley, 797 So. 2d 1288 (Fla. App. 2001) (certiorari appropriate remedy for wrongful disqualification); Settendown Pub. Util., LLC v. Waterscape Util., LLC. Butler, 2013 Ga. App. LEXIS 909 (Ga. App. Nov. 13, 2013) & Burn & Reconstructive Ctrs. of Am., LLC v. Med. Collections Sys., Inc., No. A23A0513 (Ga. App. Dec. 22, 2022) (order disqualifying interlocutory, not collateral); Mizukami v. Don Quijote (USA) Co., Ltd., 2013 Haw. App. LEXIS 295 (Haw. App. May 16, 2013) (disqualification not appealable as of right); Cutter Motor Cars, Inc. v. Ayabe, 2007 Haw. LEXIS 135 (Haw. April 27, 2007) (to get mandamus from denial, harm must be "irreparable and immediate"); Astel v. Lindsay, 2005 Haw. LEXIS 246 (Haw. May 9, 2005) (order denying motion to disqualify not appealable as of right); Mitsui Norin Co., Ltd. v. Kakaako M-P Development, 2004 Haw. LEXIS 305 (Haw. April 29, 2004); Alakea Corp. v. Kochi, 2001 Haw. LEXIS 398 (Haw. 2001) (order of disqualification reviewable via mandamus); Alao v. Onewest Bank FSB, 2013 Haw. App. LEXIS 145 (Haw. App. March 8, 2013) (disqualification not appealable as of right, Forgay doctrine notwithstanding); In Re Estate of Anna v. French (Musgrave v. French), 651 N.E.2d 1125 (Ill. 1995) (disqualification order not appealable); Flores Rentals, L.L.C. v. Flores, 153 P.3d  523 (Kan. 2007) (not in a lawyer/witness situation); Robertson v. Circuit Court, 2013 Ky. LEXIS 16 (Ky. Feb. 21, 2013) (for writ of prohibition from disqualification must show "great injustice and irreparable injury"); NTS Properties IV v. Hon. Olga Peers, 1986 Ky. App. LEXIS 1093 (Ky. App. 1986) (order of disqualification not appealable, but mandamus proceeding is appropriate - denied in this case); Flanders v. Gordon, 2019 WL 6314776 (Me. Nov. 26, 2019) (not appealable absent one of three exceptions); In re Estate of Markheim, 2008 Me. LEXIS 136 (Me. Sept. 4, 2008) (denial of motion to disqualify subject to interlocutory review where moving party could be irreparably injured if ruling stood); Casco Northern Bank v. JBI Associates, Ltd., 667 A.2d 856 (Me. 1995) (disqualification immediately appealable); Harris v. Harris, 529 A.2d 356 (Md. 1987) (order granting motion to disqualify not appealable); Peat & Co. v. Los Angeles Rams, 394 A.2d 801 (Md. 1978) (order denying motion to disqualify not appealable); Maddocks v. Ricker, 531 N.E.2d 583 (Mass. 1988) (appealability is determined on a case-by-case basis); Castillo v. El-Amin, 105 S.W.3d 859 (Mo. App. 2003) (order denying motion to disqualify is not appealable if no other part of the case has been decided); Trainum v. Sutherland Associates, LLC., 263 Neb. 778 (2002) (order denying motion to disqualify not directly appealable; mandamus the appropriate remedy);  Richardson v. Griffiths, 560 N.W.2d 430 (Neb. 1997) (order disqualifying immediately appealable); Henery v. 9th St. Apt., L.L.C., 2001 Neb. App. LEXIS 117 (Neb. App. 2001) (follows Richardson); Frostick v. State, 2015 WL 3494896 (Nev. June 1, 2015) (cryptic opinion; probably not appealable); Travco Hotels, Inc. v. Piedmont Natural Gas Co., Inc., 420 S.E.2d 426 (N.C. 1992) (denial of motion to disqualify not appealable); Wilhelm-Kissinger v. Kissinger, 2011 Ohio LEXIS 1236 (Ohio May 19, 2011) (order denying motion to disqualify in divorce case not appealable); Kala v. Aluminum Smelting & Refining Co., Inc., 688 N.E.2d 258 (Ohio 1998) (order disqualifying counsel is a final appealable order); Hooks v. Rankin Ents., LLC, 2014 Ohio App. LEXIS 3613 (Ohio App. Aug. 20, 2014) (denial not appealable); In re Estate of L.P.S., 2011 Ohio App. LEXIS 2889 (Ohio App. Sept. 15, 2011) (order denying not appealable); Bouzaher v. Wahba, 2010 Ohio App. LEXIS 1316 (Ohio App. April 9, 2010) (order denying disqualification not appealable); Othman v. Heritage Mut. Ins. Co., 814 N.E.2d 1261 (Ohio App. 2004) (order denying disqualification not immediately appealable); Lemmo v. House of Larose Cleveland, Inc., 2003 Ohio 4346 (Ohio App. 2003) (order denying motion appealable upon showing of irreparable harm); Martinez v. Yoho's Fast Food Equip., 2000 Ohio App. LEXIS 5946 (Ohio App. December 19, 2000)  (order denying  motion to admit pro hac vice is appealable); Goldston v. American Motors Corp., 392 S.E.2d 735 (N.C. 1990) (disqualification appealable); Ferguson v. DDP Pharmacy, Inc., 621 S.E.2d 323 (N.C. App. 2005) (same as Ferguson); Miami Bus. Servs., LLC v. Asset Group, Inc., 2013 Okla. LEXIS 24 (Okla. April 2, 2013) (denial of disqualification appealable via mandamus); Piette v. Bradley & Leseberg, 930 P.2d 183 (Okla. 1996) (disqualification appealable); Vaccone v. Branella, 899 A.2d 1103 (Pa. 2006) (order disqualifying in civil case not appealable); Karch v. Karch, 879 A.2d 1272 (Pa. Super. 2005) (not unless disqualification is "collateral to underlying issue in case, following Bramlett); Vertical Resources, Inc. v. Bramlett, 837 A.2d 1193 (Pa. Super. 2003); EnerSys Del., Inc. v. Hopkins, 2013 S.C. LEXIS 29 (S.C. Feb. 27, 2013) (order denying disqualification not immediately appealable); Hagood v. Sommerville, 607 S.E.2d 707 (S.C. 2005) (order granting disqualification immediately appeable); Hilton v. Crawford, 1991 Tenn. App. LEXIS 964 (Tenn. App. 1991) (order disqualifying counsel appealable); Nat. Med. Enterprises, Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996) (mandamus appropriate to review order denying disqualification); In re Chonody, 49 S.W.3d 376 (Tex. App. 2000) (mandamus appropriate to review order disqualifying counsel); Turner v. Roberson, 2013 Tex. App. LEXIS 6175 (Tex. App. May 17, 2013) (order denying disqualification not appealable); Hermida-Lara v. Rosas, 2013 Tex. App. LEXIS 12035 (Tex. App. Sept. 26, 2013) (order denying disqualification not appealable);  Est. of Janecek, 610 N.W.2d 638 (Minn. 2000) (order granting motion to disqualify appealable); Bluestone Coal Corp. v. Superior Court, 2010 W. Va. LEXIS 85 (W. Va. June 23, 2010), State of West Virginia ex rel. Blackhawk Enterprises, Inc. v. Bloom, 633 S.E.2d 278 (W. Va. 2006) (denial of motion appealable via request for writ of prohibition).

Burn & Reconstructive Ctrs. of Am., LLC v. Med. Collections Sys., Inc., No. A23A0513 (Ga. App. Dec. 22, 2022). Trial court granted motion to disqualify. The losing side filed a notice of appeal. In this order the appellate court dismissed the appeal, finding that the order below was "interlocutory" rather than "collateral." The losing party should have followed the interlocutory appeal procedure under OCGA § 5-6-34(b), but did not.

        Even Denial of Injunction not AppealableDHR International, Inc. v. Winston and Strawn, 807 N.E.2d 1094 (Ill. App. 2004).  Winston and Strawn (“Winston”) was representing a claimant against DHR in an AAA arbitration in New York City.  DHR brought this case to enjoin Winston from handling that arbitration, claiming that someone from Winston had earlier represented DHR.  The trial court denied DHR’s motion for preliminary injunction, so DHR brought this appeal, relying on Illinois Supreme Court Rule 307(a)(1).  That rule permits appeals as of right from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”  The appellate court dismissed the appeal because it had no jurisdiction.  The court reasoned that an order denying an injunction based upon an alleged conflict of interest is tantamount to an order denying a motion to disqualify, which, in Illinois is not appealable as of right.  Evidently, neither the trial court nor the appellate court questioned the propriety of a suit to enjoin the conflict.

        Order Denying Motion to Withdraw.  In re Franke, 2012 Md. App. LEXIS 95 (Md. App. Aug. 29, 2012).  Not a conflicts case.  Lawyer moved to withdraw because of non-payment of $120,000 in fees.  The trial court denied the motion.  Lawyer appealed.  In this opinion the appellate court reversed, holding that an order denying a motion to withdraw is immediately appealable.

        In re Curare Lab. LLC, 2022 WL 1054980 (6th Cir. Bankr. App. April 8, 2022). The bankruptcy judge approved Debtor's retention of Law Firm. Several weeks later certain "creditors or stakeholders" of Debtor, including Dr. Arla, filed an objection to Law Firm's continued retention in the case. The objectors are claiming Law Firm has a conflict of interest because it represents Dr. Arla "in an unrelated matter." The bankruptcy judge overruled the objection. In this opinion the Bankruptcy Appellate Panel denied the objectors' motion for leave to appeal. The opinion contains a thorough discussion of when an interlocutory order may be appealed, but concludes that a disagreement over whether a conflict of interest exists "is not the type of difference of opinion intended to be addressed through an interlocutory appeal."

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