United States v. Rickey White and Elaine White

FLAUM, Circuit Judge,

concurring.

I agree with my brethren that the denial of a motion to disqualify a defense attorney in a criminal case because of the attorney’s prior representation of a government witness is not appealable as a collateral order. However, I disagree with the reasoning set forth in the majority opinion, and thus, I concur.

To be appealable as a collateral order, a trial court order must meet three conditions. It “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454, 2458 , 57 L.Ed.2d 351 (1978). The essential inquiry is whether any harm to the interests sought to be protected by interlocutory appeal can be substantially repaired by a reversal of the district court’s order on appeal from a final judgment. See Illinois v. F.E. Moran, Inc., 740 F.2d 533 at 536-537 (7th Cir.1984). See also Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) (refusal to dismiss indictment for violation of double jeopardy clause cannot be remedied on appeal from conviction because the right at issue is the right not to be tried).

In determining whether the three conditions for a collateral order are met in this case, I deem it appropriate to focus on the witness Vern Michels’s interests. The defendants have waived their rights after careful and repeated admonition by the district court. 1 Furthermore, the attorney-client privilege at issue here belongs to Michels, not to the defendants, and Michels has testified that he does not waive his privilege. Thus, the inquiry must be whether an appeal now is necessary to protect Michels’s privilege. The Supreme Court has never addressed the appealability of attorney disqualification orders in the context of protecting a witness’s rights. However, its two decisions on appeals of disqualification orders — Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 , 101 S.Ct. 669 , 66 L.Ed.2d 571 (1981), and United States v. Flanagan, — U.S.-, 104 S.Ct. 1051 , 79 L.Ed.2d 288 (1984) — provide some background.

In Firestone, the Court held that an order denying a motion to disqualify counsel in a civil case is not appealable as a collateral order. The Court found that the denial of a disqualification motion “ ‘conclusively determine^] the disputed question’ because the only issue is whether challenged counsel will be permitted to continue his representation.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 375-76 , 101 S.Ct. at 674-75 . The Court stated that it would assume without deciding that the disqualification issue was completely separate from the merits of the action. The Court concluded that the order was not appealable, however, because the denial of disqualification could be reviewed on appeal from a final judgment. It reasoned that “[t]he propriety of the district court’s denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated *496 ____ [SJhould the Court of Appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate the judgment appealed from.” Id. at 377-78 , 101 S.Ct. at 675-76 . The Court refused to express any view as to whether an order denying disqualification in a criminal case is appealable as a collateral order. Id. at 372 n. 8, 101 S.Ct. at 672 n. 8.

In Flanagan , the Court held that the granting of a pretrial motion to disqualify defense counsel in a criminal case because of multiple representation is not appealable as a collateral order. Flanagan v. United States, — U.S. -, 104 S.Ct. 1051 , 79 L.Ed.2d 288 (1984). The Court stressed the compelling interests on the part of both the defendant and society in prompt trials in the criminal context and noted that it “has interpreted the requirements of the collateral-order exception with the utmost strictness in criminal cases.” Id. 104 S.Ct. at 1055 . The Court refused to decide whether defendants would have to show prejudice to their defense to establish a violation of their right to their chosen counsel. Instead, the Court held that if prejudice were presumed, the order could be effectively reviewed on appeal from a final judgment; if prejudice must be demonstrated, the order is not completely separate from the merits of the case. Finally, the Court concluded, the case did not warrant expanding the small class of criminal orders covered by the collateral order doctrine because the costs of delaying a criminal trial outweigh any potential benefits of immediate review. Id. at 1056-57 .

Applying these principles to this case, I find that the district court's denial of the motion to disqualify is not an appealable collateral order. First, the order denying disqualification conclusively resolves the disputed question. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 375-76 , 101 S.Ct. at 674-75 . Second, it is clear that the issue here truly is collateral — Michels's attorney-client privilege is completely separate from the merits of the criminal case against the defendants. Thus, this appeal meets the first two criteria of the Cohen test.

The disqualification issue also is “effectively unreviewable on appeal from the final judgment.” If defendants are acquitted, there can be no appeal. If defendants are convicted, the choice as to whether to appeal belongs to them, not to Michels. If there is an appeal, the issue might not be raised. A witness does not have standing to assert a violation of his own rights on appeal from a defendant’s conviction in a criminal case. Similarly, a defendant cannot raise a violation of a witness’s rights in the absence of prejudice to the defense. Thus, this case is not like Firestone in that we will not be able to correct any error through our “usual authority to vacate the judgment appealed from.” See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 378 , 101 S.Ct. at 675 . Finally, Michels’s privilege cannot be fully vindicated through appeal. If he answers the defense attorney’s questions on cross-examination, his privilege has been irretrievably violated and the issue is moot. In this sense, his right is analogous to the double jeopardy right. See Flanagan v. United States, 104 S.Ct. at 1055-56 .

Even though this case meets the third criterion of the Cohen test, I am compelled to find that it is not appealable as a collateral order because there is a means of appellate review that is fully effective. Michels must take the stand and refuse to answer any questions that he perceives violate his privilege. If the trial court disagrees with his perception, Michels will be found in contempt of court. The contempt order is of course immediately appealable. See Cobbledick v. United States, 309 U.S. 323, 328 , 60 S.Ct. 540, 542 , 84 L.Ed. 783 (1940). Such an appeal can fully protect Michels’s claim of privilege. This court can assess at that time the impact of cross-examination on his privilege; this is not a case where the impact cannot be assessed *497 until the trial is completed. 2 The Supreme Court has recognized that, in determining whether to allow an appeal as a collateral order, an appeal from a contempt order is an alternative to appeal from final judgment. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 378 , 101 S.Ct. at 675 (citing Cobbledick v. United States, 309 U.S. 323, 327 , 60 S.Ct. 540, 542 , 84 L.Ed. 783 (1940) (appeal of discovery order in grand jury proceeding)); see also United States v. Ryan, 402 U.S. 530 , 91 S.Ct. 1580 , 29 L.Ed.2d 85 (1971) (appeal of denial of motion to quash grand jury subpoena duces tecum); Alexander v. United States, 201 U.S. 117 , 26 S.Ct. 356 , 50 L.Ed. 686 (1906) (appeal of witness who refused to answer questions of hearing examiner). 3 Cf. In re April 1977 Grand Jury Subpoenas, 584 F.2d 1366, 1368-71 (6th Cir.1978) (en banc) (appeal from denial of disqualification motion by defendants in grand jury proceedings), ce rt. denied, 440 U.S. 934 , 99 S.Ct. 1277 , 59 L.Ed.2d 492 (1979). Thus, because Michels has an option to obtain appellate review of his claim of privilege, allowing an appeal now as a collateral order is not necessary to protect him.

Finally, it is appropriate to assess the costs and benefits of postponing our review until a witness appeals from a contempt jurisdiction. See Flanagan v. United States, 104 S.Ct. at 1057 . Postponing review may lead to greater delay in criminal trials. One purpose of the final judgment and collateral order rules is to determine the most efficient time for appeal of an issue. The Supreme Court has noted that a delay before trial pending appeal “exacts a presumptively prohibitive price.” Id. An appeal from a contempt judgment may create even greater delays. A pretrial appeal allows the issue to be disposed of as a discrete matter before the trial begins, before a jury is impanelled, and before the government produces what may be a considerable amount of evidence. An appeal from a contempt judgment disrupts the trial itself; the government will be unable to go forward with its case until the issue is resolved on appeal. As a practical matter, given the length of most appeals, the jury will have to be dismissed, a new jury impanelled, and the case begun anew. This is a waste of resources on all parts and a breach of the strong interests of the defendant and society in a speedy trial. Weighed against these costs is the chance that a contempt order, and an appeal from the order, will not be necessary. The district court has the authority to limit the scope of cross-examination so as to attempt to protect a witness’s privilege. While I have doubts as to whether sufficient limitation is ever possible as a matter of law, it is possible that a witness may be satisfied with the limits that the district court imposes. A witness might also change his mind and, decide to waive his privilege; the district court might reassess its decision and disqualify the attorney. Because postponing review provides a chance that there will be no appeal and because of the high costs of delay resulting from any appeal, the costs of postponing review are not sufficiently compelling to warrant expanding the collateral order doctrine for this case. 4 *498 Moreover, in certain situations involving extraordinary circumstances, a writ of mandamus, 28 U.S.C. § 1651 , may be appropriate as a means of pretrial appellate review. See In re April 1977 Grand Jury Proceedings, 584 F.2d at 1371-73 (Edwards, J., concurring). Thus, I conclude that the district court’s order here denying disqualification is not appealable. Accord United States v. Tosh, 733 F.2d 422 (6th Cir.1984).

Because we lack jurisdiction to decide this appeal, we need not decide whether the prosecution has standing to move to disqualify a defendant’s attorney because of the attorney’s prior representation of a government witness. However, because the majority opinion addresses the issue, and because I believe that this discussion may chill what I believe is important and necessary behavior by the prosecution, I deem it important to note that I believe the prosecution not only may, but also must, raise such matters to the district court.

Courts in other circuits have allowed persons other than the former client to move for disqualification. See Kevlik v. Goldstein, 724 F.2d 844, 847-48 (1st Cir.1984); United States v. Clarkson, 567 F.2d 270 , 271 n. 1 (4th Cir.1977); Brown & Williamson Tobacco Corp. v. Daniel International Corp., 563 F.2d 671, 673 (5th Cir.1977). 5 These cases have relied on the ethical responsibility of all attorneys to bring to the attention of the court possible ethical violations by other attorneys. See Model Code of Professional Responsibility, DR 1-103(A). A prosecutor has a special obligation to raise possible ethical problems to the court’s attention. Cf. United States v. Cunningham, 672 F.2d 1064 , 1072 n. 7 (2d Cir.1982) (government’s interest in preserving integrity of criminal proceeding gives it standing to move for disqualification of defense attorney). In addition, the prosecutor has an even heavier burden of ensuring fairness to all persons involved in a criminal proceeding. Finally, the prosecution has an interest in protecting its witnesses. United States v. James, 708 F.2d 40, 44-46 (2d Cir.1983); see United States v. DeLuna, 584 F.Supp. 139 (W.D.Mo.1984). Thus, in my view, the prosecution has an obligation to move to disqualify a defense attorney where there is potential for ethical problems.

, This does not preclude defendants, if convicted, from arguing on appeal that their waiver was not voluntary, knowing, and intelligent.

. Arguably, this is where Michels’s attorney-client privilege and the defendants’ right to counsel of their choice intersect. This court cannot fully assess the impact of the order on the defendants' rights until the trial is completed. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 , 101 S.Ct. 669, 675 , 66 L.Ed.2d 571 (1981). That is true, however, regardless of whether we allow an appeal now or only from the contempt judgment.

. None of these cases cited arose in the context of an ongoing criminal trial. However, two members of the Supreme Court have indicated that the denial of a motion to quash a subpoena issued during an ongoing criminal trial is not immediately appealable. New York Times Co. v. Jascalevich, 439 U.S. 1301 , 98 S.Ct. 3058 , 58 L.Ed.2d 9 (White, Circuit Justice, 1978); New York Times Co. v. Jascalevich, 439 U.S. 1304 , 98 S.Ct. 3060 , 58 L.Ed.2d 12 (Marshall, Circuit Justice, 1978). Justice Marshall noted that one to whom a subpoena is issued can appeal the validity of a subpoena only by refusing to obey and appealing the contempt judgment. Id. at 1305, 98 S.Ct. at 3061 .

. It may well be unfair to expect a nonparty witness to risk a contempt judgment to obtain appellate review of a plausible claim of attorney-client privilege. However, this court rejected a similar argument in holding a discovery *498 order directed to a nonparty witness to be nonappealable. Ryan v. Commissioner, 517 F.2d 13, 18-19 (7th Cir.), cert. denied, 423 U.S. 892 , 96 S.Ct. 190 , 46 L.Ed.2d 124 (1975). The court reasoned that allowing such appeals would crowd appellate dockets and lead to delays in litigation. Although Ryan did not deal with the attorney-client privilege at issue here, its reasoning is applicable to this case. See also De Masi v. Weiss, 669 F.2d 114 , 122 (3d Cir.1982); In re Benjamin, 582 F.2d 121 (1st Cir.1978).

. Some courts have denied standing to persons other than the former client to raise the attorney-client privilege where the former client is willing to waive the privilege. See, e.g., In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88 (5th Cir.1976). We need not address this issue because Michels has stated that he does not waive his privilege.