stating that “we continue to believe that possible ethical conflicts surfacing during a litigation are generally better addressed by the comprehensive disciplinary machinery of the state and federal bar”
How later courts described this case
- stating that “we continue to believe that possible ethical conflicts surfacing during a litigation are generally better addressed by the comprehensive disciplinary machinery of the state and federal bar”
- noting that “Code’s Disciplinary Rules were drafted for use in disciplinary proceedings and were not intended [by the drafters] to be used as rules governing disqualification motions,” although such Rules provide guidance in deciding whether attorney’s participation will taint the proceedings
- "We recognize" that asymmetry, but "are willing to endure whatever appearance of inconsistency" it gives rise to
- recognizing appellate jurisdiction over orders granting disqualification motions in civil cases
Written by the judges who cited it.
The opinion
VAN GRAAFEILAND, Circuit Judge,
concurring in part and dissenting in part:
The refusal of a district court to disqualify counsel leaves neither court nor opponent without remedy. The court may order disqualification at any later time if subsequent events make it appropriate. Disbarment, see United States v. Costen, 38 F. 24 (C.C.D.Colo.1889), reversal, see United States v. Bishop, 90 F.2d 65 (6th Cir. 1937), injunctive protection, see United States v. Mahaney, 27 F.Supp. 463 (N.D.Cal.1939), and denial of compensation, see Gesellschaft Fur Drahtlose Telegraphie M. B. H. v. Brown, 78 F.2d 410 (D.C.Cir.), cert. denied, 296 U.S. 618 , 56 S.Ct. 139 , 80 L.Ed. 439 (1935), are also available remedies. I agree, therefore, that the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949) does not give this Court jurisdiction to hear appeals of this nature. Because the provisions of the Code of Professional Responsibility are presently in a state of flux, * and we shed little permanent light *452 by our discussion of the merits, I would simply dismiss the instant appeal for lack of jurisdiction.
A Discussion Draft of the Model Rules of Professional Conduct is presently being circulated by the American Bar Association and a final version of the Rules will be submitted to *452 the House of Delegates at its February 1981 meeting.