petition for rehearing en banc denied; mandate withheld pending outcome of Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C.Cir.), cert. granted, — U.S.-, 105 S.Ct. 290, 83 L.Ed.2d 226 (1984)
How later courts described this case
- petition for rehearing en banc denied; mandate withheld pending outcome of Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C.Cir.), cert. granted, — U.S.-, 105 S.Ct. 290, 83 L.Ed.2d 226 (1984)
- rejecting appeal pursuant to § 1291 in reliance on Flanagan
- “It need only be akin to the present action in a way reasonable persons would understand as important to the issues resolved.”
Written by the judges who cited it.
The opinion
E. GRADY JOLLY, Circuit Judge,
dissenting:
I respectfully dissent.
I find the reasoning of Roller v. Richardson-Merrell, 737 F.2d 1038 . (D.C.Cir. 1984) persuasive, and am convinced that orders disqualifying counsel in civil cases are sufficiently distinguishable in character and effect from such orders in criminal cases as to render inapplicable the reasoning and holding of Flanagan v. United States, — U.S. -, 104 S.Ct. 1051 , 79 L.Ed.2d 288 (1984). Indeed, it seems to me that the reasoning of Flanagan encourages us to draw distinctions between civil litigation and criminal prosecutions for the purposes of analyzing the immediate appealability of counsel disqualification orders. The distinction between criminal prosecutions and civil litigation stems from the emphasis criminal prosecutions place on the rights of the individual defendant which often control the final judgment in the case. Because in criminal prosecutions, this “respect for the individual is the lifeblood of the law,” 1 it is inseparable from consideration of the final judgment on the substantive merits of the case. The criminal defendant’s right to a speedy trial and his right to effective counsel, the rights most directly implicated here, are but two manifestations of this respect for the individual which become intermeshed in the *186 reviewability of final judgment in the criminal, but not the civil case.
Consequently, it is my view that unlike the counsel disqualification order in a criminal case, such an order in a civil case presents for appeal each and every criterion necessary to create an exception to the final judgment rule under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). We can, on this appeal before us, conclusively determine the disputed question of whether counsel was properly disqualified; second, the important issue for determination, dissimilar to such an order disqualifying counsel in a criminal case, is completely separate from the merits of this action; and, finally, also distinguishable from a criminal case, the disputed question here would not be effectively reviewable on appeal from a final judgment in this case because, first, the defendant has no constitutional right to effective counsel and hence no presumption of prejudice inures in his favor, and, second, prejudice from an order disqualifying counsel is virtually impossible to prove on review of a final judgment on the substantive merits in a civil case.
I cannot better explain the reasoning for my dissent further than has Judge Wald in Koller. For these and those reasons, I respectfully dissent.
. Illinois v. Allen, 397 U.S. 337, 350-51 , 90 S.Ct. 1057, 1064 , 25 L.Ed.2d 353 (1970) (Brennan, J., concurring).