# Michael F. Armstrong v. Clovis McAlpin > Court of Appeals for the Second Circuit · June 20, 1980 · 625 F.2d 433 URL: https://www.frixlaw.com/law-library/cases/9466873 ## Case - **Full name:** Michael F. ARMSTRONG, Et Al., Plaintiffs-Appellees, v. Clovis McALPIN, Et Al., Defendants-Appellants - **Court:** Court of Appeals for the Second Circuit - **Decided:** June 20, 1980 - **Citations:** 625 F.2d 433; 51 A.L.R. Fed. 646; 1980 U.S. App. LEXIS 16419 - **Precedential status:** Published - **Opinion:** Concurring in part by Newman - **Judges:** Mulligan, Meskill, Van Graafeiland, Newman, Kaufman, Feinberg, Mansfield, Oakes, Timbers - **Cited by:** 206 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated on other grounds by McAlpin v. Armstrong, 449 U.S. 1106 (1981). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466873 ## How later opinions describe it (automated extraction) - 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… - recognizing appellate jurisdiction over orders granting disqualification motions in civil cases ## Opinion text NEWMAN, Circuit Judge, concurring in part and dissenting in part: I concur with the majority’s conclusions that orders denying disqualification are not reviewable on an interlocutory appeal 1 and that this ruling on appealability should be given only prospective effect; on the merits, however, I respectfully dissent. The majority’s opinion does not deal with the ultimate issue on the merits: whether a law firm’s representation violates Disciplinary Rule 5-105(D) when one of its partners is disqualified under Disciplinary Rule 9-101(B). Instead the majority concludes that, whether or not the firm’s representation violates the Code of Professional Responsibility, a trial court should not disqualify the firm unless (a) the firm’s representation would taint the trial or (b) the case is one of those “unusual situations where the ‘appearance of impropriety’ alone is sufficient to warrant disqualification.” 625 F.2d at 446. In this case the majority finds neither a threat of taint nor a sufficient basis to disqualify to avoid the appearance of impropriety. I disagree with both this standard for disqualification and its application to this case. As expressed by the majority, this standard makes trial taint the primary and nearly exclusive basis for disqualification, relegating “appearance of impropriety” to a remote and uncertain role at best. 2 In my view, the judiciary should be much more willing to use the sanction of disqualification to make sure that the canons of ethics are not violated in the courtroom. I can agree that not every violation of the Code should result in disqualification. Especially when a violation occurs after litigation has begun, it will sometimes be fairer to the interests of both the public and the client to permit the trial to continue to conclusion and then use the grievance procedures for appropriate discipline. But when the alleged violation concerns the propriety of undertaking representation at the outset, a court should inquire into whether a lawyer and his firm are violating the Code by appearing in the litigation, whether or not such representation will taint the trial. 3 *453 The appropriateness of such inquiry is especially high when the Code provision at issue regulates the ethical conduct of government attorneys. DR 9-101(B) is not concerned solely with the trial taint that may occur if an attorney handles a matter for which he previously had substantial responsibility as a government lawyer. It also seeks to avoid “the manifest possibility that ... [a former Government lawyer’s] action as a public legal officer might be influenced (or open to the charge that it had been influenced) by the hope of later being employed privately to uphold or upset what he had done.” General Motors Corp. v. City of New York, 501 F.2d 639, 648-49 (2d Cir. 1974). Courts traditionally have been most sensitive to the enforcement of standards designed to limit governmental power. They should be at least as sensitive to the enforcement of standards specifically designed to protect against the misuse of such power. The purposes of DR 9-101(B) cannot be fully achieved unless there is no possibility that the government attorney can be (or seem to be) influenced by the prospect of later private employment. To remove that possibility requires disqualification not only of the attorney, when handling a related matter, but also of his firm. 4 Even under the majority’s limited standard for disqualification, Altman’s firm should be disqualified in this case. First, if threat of taint is accepted as the primary ground for disqualification, such threat is present here. In Board of Education v. Nyquist, 590 F.2d 1241 (2d Cir. 1979), it was recognized that a former Government attorney’s possession of confidential information unavailable to the other side would risk trial taint sufficiently to warrant his disqualification. Id. at 1247-48 n. 1 (Mansfield, J., concurring). That risk is not eliminated by screening the lawyer from his firm. In Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 , 229 n. 10 (2d Cir. 1977), a Chinese Wall within a law firm was thought to be inadequate protection against the risk that information from one of the firm’s clients, with interests adverse to another of the firm’s clients, would be transmitted from one partner to another. If in this litigation it should become crucial to the outcome for the lawyers representing the plaintiff to know some confidential information learned by Altman while in government employ, I do not see why a Chinese Wall should be thought more impervious to information that originated from a government investigation than to information learned from a client with adverse interests. 5 Second, this case should be deemed to meet the majority’s exception to the taint standard for an unusual situation where the appearance of impropriety warrants disqualification. In addition to the need to disqualify the firm to avoid all risk that a government attorney might misuse his authority in hope of later private gain, appearance of impropriety exists here because of the further risk that the screening procedure will not be effective. It may well be that no matter how this litigation develops, Altman will in fact not disclose to his partners anything he learned while exercising substantia] government responsibilities for related matters. But the public will not believe it. Of course, the rules of law, including the rules of disqualification, cannot cater to all the often unfounded apprehensions of the public. But we do not deal here with just a generalized public skepticism about lawyers. The policymaking *454 body of the legal profession’s largest and most influential membership organization has adopted a Code of Professional Responsibility that bars Altman from representing the plaintiff in this case (DR 9-101(B)) and bars his partners as well (DR 5-101(D)). The public understandably will see an appearance of impropriety when, despite the clarity of these prohibitions, Altman’s law firm is allowed to continue its representation because of the assurance that Altman and his partners will not discuss this case. The public will also justifiably perceive impropriety when, despite the prohibition of the canons, a government lawyer handles a matter and the law firm he subsequently joins is not disqualified from representation in a substantially related matter. 6 To allow such representation leaves the government lawyer open to the charge that his action as a public legal officer might have been influenced by the hope of later being employed to uphold what he had done, as this Court warned in General Motors, supra. The appearance of impropriety should be avoided by disqualification of Altman’s firm. Whether the Code of Professional Responsibility should maintain its present rule requiring the disqualification of the former government attorney’s firm is a matter on which reasonable minds may differ. Serious concerns have been expressed that the Code, as now written, may unduly restrict private employment opportunities of government lawyers and thereby impair the government’s ability to attract competent attorneys. That issue is now receiving attention by those charged with responsibility for reviewing and perhaps revising the content of the Code. But until some concrete evidence of adverse consequences supplies grounds for changing the Code’s present provisions, I would apply them as written, find Altman’s firm to be in violation of the Code by its representation in this case, and grant the motion to disqualify to maintain the important ethical principles on which the Code is based. . My conclusion that orders denying disqualification are not within the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), rests entirely on the failure to meet Cohen’s requirement that review after final judgment will be ineffective. I do not agree with the suggestion in the majority opinion that Cohen’s requirement of an issue “too important” to be deferred encompasses only decisive legal questions and not the application of settled legal rules to particular facts. As' Judge Mulligan points out, supra at 450, this limitation would preclude interlocutory review of most orders granting disqualification. “Importance” relates to the consequences to the parties (or their lawyer), not to whether the issue has public significance. . Limiting disqualification to instances of trial taint may have been somewhat more justified prior to today’s decision, when denials of disqualification were subject to interlocutory appeal. It may be that fear of dilatory interlocutory appeals played some part in the emergence of the “trial taint” standard, limiting the grounds for court-enforced disqualification. It is somewhat ironic that a “trial taint” standard should now become virtually absolute at the very time that interlocutory appeals from denial of disqualification are being prohibited. . It is clear that trial courts could appropriately enforce, at the outset of litigation, disqualification rules that are not concerned only with trial taint. However, such an approach would pose different issues for an appellate court considering a trial court’s denial of disqualification on appeal from a final judgment after trial. At that point reversal of the judgment might sometimes be an excessive penalty for violation of the canons, too costly to both the litigants and the public. Perhaps the penalty for representation in violation of the canons, where trial taint has not occurred should be simply forfeiture of attorney’s fees. Even if reversal of a judgment were inappropriate, appellate rulings on whether the representation was proper would increase observance of the canons and provide useful guidance for trial courts. Whatever sanctions might be appropriate for an appellate court to impose when, after judgment, denial of disqualification is held to have been erroneous, the disqualification sanction, not limited to instances of trial taint, should be available for use by trial courts when the canons are violated at the outset of litigation. . In this case there is no reason to doubt that Altman acted fairly and uprightly as a government attorney. But the canons of ethics, it has been properly pointed out, are designed as guidance for the honorable attorney, not simply as a proscription against misconduct. General Motors, supra, 501 F.2d at 649 . . The majority opinion suggests that the absence of risk of taint is a factual finding of the District Court, not shown to be clearly erroneous. I would agree that whether a Chinese Wall within a law firm has been breached would be an issue of fact. However, whether such a device is prospectively a sufficient safeguard to justify a representation forbidden by the Code is an issue of law. That issue was not considered in the panel opinion because disqualification of the firm was thought to be required by the Code and the principle of the General Motors case, regardless of whether a Chinese Wall could adequately prevent taint. . The majority opinion suggests that countervailing considerations are to be found in the public expectation of efficiency in the judicial process, and that further delay resulting from disqualification of the Gordon firm should not be tolerated. I do not think efficiency, even in the pursuit of alleged wrongdoing, justifies a failure to enforce a rule of ethics that is specifically designed to remove the temptation and opportunity for misuse of governmental authority. Moreover, I cannot agree that the delay to date and subsequently, if disqualification were ordered, is chargeable to appellants. The onus quite properly rests with the Gordon firm, which undertook a representation in the face of the Code’s clear prohibition. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466873. Public record. Not legal advice.