concluding that “the discretionary resolution of discovery issues precludes the requisite controlling question of law”
How later courts described this case
- concluding that “the discretionary resolution of discovery issues precludes the requisite controlling question of law”
- holding that orders refusing to disqualify counsel are not immediately appealable because there is usually an adequate remedy after final judgment—the court of appeals can vacate the judgment and order a new trial
- holding orders denying motions to disqualify counsel in civil cases not appeal-able as final decisions under § 1291 or under the “collateral order” doctrine as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)
- concluding that a “court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only”
Written by the judges who cited it.
The opinion
Justice Rehnquist,
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 *381 not appealable under the collateral-order doctrine, in part because such an order is “subject to revision in the District Court.” Id., at 469 . The possibility that a district judge would reconsider his determination was highly significant in United States v. MacDonald, 435 U. S. 850, 858-859 (1978), where the Court held that the denial of a pretrial motion to dismiss an indictment on speedy trial grounds was not appeal-able’ under the collateral-order doctrine. The Court noted that speedy trial claims necessitated a careful assessment of the particular facts of the case, and that “[t]he denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial — when prejudice can be better gauged — would also be denied.”
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 *382 later point in the proceedings — “when prejudice can be better gauged” — will be denied.
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.