Reply Brief — Richardson-Merrell Inc. v. Koller

IN THE

Supreme Court of the United

OcTOBER TERM, 1984

>_>

RICHARDSON-MERRELL INC.,

Petitioner,

Vv.

ANNE ELISABETH KOLLER, an infant, by and through

JOHN LAMONT KOLLER and CYNTHIA ANNE KOLLER,

her natural guardians, JOHN LAMONT KOLLER and

CYNTHIA ANNE KOLLER, individually, James G.

BUTLER, NICHOLAS R. ALLIS, and the law firm of

BUTLER, JEFFERSON, DAN & ALLIS,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR PETITIONER

=—

LAWRENCE E. WALSH

Crowe & Dunlevy

1800 Mid-America Tower

20 North Broadway

RICHARD C. ForRD Oklahoma City, Oklahoma 73102

Of Counsel (405) 235-7700

Counsel of Record for Petitioner

Guy MILLER STRUVE

OGDEN N. Lewis

WHITNEY L. SCHMIDT

Davis Polk & Wardwell

1575 I Street, N.W.

Washington, D.C. 20005

(202) 789-7100

VINCENT H. COHEN

Ropert B. Cave

Hogan & Hartson

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4500

Counsel for Petitioner

LS

TABLE OF CONTENTS

PAGE

Misstatements in Respondents’ Counter-Statement

Ge GD GD co ccnccoccceceoseseseneseaceeeces 2

A. The Decision of the District Court.......... 2

B. The Decision of the Court of Appeals. ...... 5

ARGUMENT

Point I—The Decision Below Wrongly Abolishes

as a Matter of Law the Established Authority

of the District Courts to Disqualify Counsel for

PER o cncccconcceesesesesetaonsasens 6

Point Il—The Court Below Brushed Aside the

Clearly Erroneous Rule and the Abuse of Dis-

cretion Standard of Review ................. 7

A. The Clearly Erroneous Rule ............. 7

B. The Abuse of Discretion Standard........ 8

Point I1l—The Court Below Wrongly Held That

an Attorney May Not Be Disqualified for Re-

leasing Material Which Has Been Ruled Inad-

missible With Intent to Circumvent the Ruling

and to Prejudice an Opponent .............. 8

Point 1V—Attorney Disqualification Orders in

Civil Cases Are Not Subject to Interlocutory

Appeal Under Flanagan v. United States, 104

> Ga, Ge Ge cccccoecscoesoncasscdesens 11

CPUS cc ccccccccccescceccccecescecses 15

APPENDIX—Response to Respondents’ Factual

PED cc ccccccccceccocecescecosecs ieee la

i

TABLE OF AUTHORITIES

Cases PAGE

Atchison, T. & S.F. Ry v. Jackson, 235 F.2d 390

eee cn ceeceseccece 4

Bridges v. California, 314 U.S. 252 (1941)........ 8-9

Brown v. Supreme Court, 359 F. Supp. 549 (E.D.

Va.), aff'd, 414 U.S. 1034 (1973) ..............

Cooper v. Hutchinson, 184 F.2d 119 (3a Cir. 1950)

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) 12

Craig v. Harney, 331 U.S. 367 (1947) ............ 9

Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

ee ee eee aceceseesecocece:s 14

Flanagan v. United States, 104 S. Ct. 1051

ht iid heee eee genaébesooeecececes< 11, 12, 14

Galahad v. Weinshienk, 55S F. Supp. 1201 (D.

Colo.), aff'd, No. 83-1115 (10th Cir. Sept. 2,

1983), cert. denied, 104 S. Ct. 1907 (1984)...... 4

Geders v. United States, 425 U.S. 80 (1976)....... 14

Gough v. Perkowski, 694 F.2d 1140 (9th Cir. 1982) 13

In re Belli, 371 F. Supp. 111 (D.D.C. 1974)....... 4

In re D. H. Overmyer Telecasting Co., 29 B.R. 647

(Bkrtcy. Ct. N.D. Ohio 1983), aff'd, No. 83-3771

ro in nctcasecesesooceceeces

In re Evans, 524 F.2d 1004 (Sth Cir. 1975) ........

Landmark Communications, Inc. v. Virginia, 435

TT iiekbeeedeeeesoccesseeteceses

Leis v. Flynt, 439 U.S. 438 (1979) .... 2.6... e ee.

ili

PAGE

Lusardi v. Xerox Corp., 747 F.2d 174 (3d Cir. 1984) 12

Myers v. Bethlehem Shipbuilding Corp., 303 U.S.

e+ jp c¢duetendapeensenesees vencenunes 12

Norfolk & W. Ry. v. Beatty, 44 F. Supp. 234 (S.D.

Ill.), aff'd, 423 U.S. 1009 (1975) .............. 4

Parker v. Levy, 417 U.S. 733 (1974) ............. 11

Pennekamp v. Florida, 328 U.S. 331 (1946)....... 9

Renegotiation Board v. Bannercraft Clothing Co.,

i ri © Os ccconceoccoccoseescoes 12

Roadway Express, Inc. v. Piper, 447 U.S. 752

ttt een ipeeudeneeneeneooesqoneeeesees 14

Ross v. Reda, 510 F.2d 1172 (6th Cir.), cert. denied,

423 U.S. 892 (1975).........-. reedeeneubeaeese 3-4, 10

Sanders v. Russell, 401 F.2d 241 (Sth Cir. 1968) ... 4

Sheppard v. Maxwell, 384 U.S. 333 (1966)........ 2-3, 10

Silverman v. Browning, 414 F. Supp. 80 (D. Conn.),

aff'd, 429 U.S. 876 (1976) .. 2... ec cece eee 4

Spanos v. Skouras Theatres Corp., 364 F.2d 16!,

cert. denied, 385 U.S. 987 (1966) .............. 4

State v. Kavanaugh, 52 N.J. 7, 243 A.2d 225, cert.

denied, 393 U.S. 924 (1968)... ..........00005- 4

State v. Van Duyne, 43 N.J. 369, 204 A.2d 841

(1964), cert. denied, 380 U.S. 987 (1965) ....... 2, 10

Strickland v. Washington, 104 S. Ct. 2052 (1984).. 13

Thomas v. Cassidy, 249 F.2d 91 (4th Cir. 1957), cert.

denied, 355 U.S. 958 (1958)... 2.2.2... cece eee 4

iv

PAGE

United States v. Cronic, 104 S. Ct. 2029 (1984) ... 13

Village of Hoffman Estates v. The Flipside, Hoff-

man Estates, Inc., 455 U.S. 489 (1982)......... 11

Wood v. Georgia, 370 U.S. 375 (1962) ........... 9

Rules

District of Columbia Code of Professional Respon-

sibility, Disciplinary Rule 1-102................ 3

District of Columbia Code of Professional Respon-

sibility, Disciplinary Rule 7-102................ 3

District of Columbia Code of Professional Respon-

sibility, Disciplinary Rule 7-102(B)............. 3

District of Columbia Code of Professional Respon-

sibility, Disciplinary Rule 7-106(C)............. 10

District of Columbia Code of Professional Respon-

sibility, Disciplinary Rule 7-107(H) (ABA Canons

of Professional Ethics, Canon 20) ............ 2, 10, 11

District of Columbia Code of Professional Respon-

sibility, Disciplinary Rule 7-108(A)............. 10

District of Columbia Code of Professional Respon-

sibility, Disciplinary Rule 7-108(B)............. 10

Other Authorities

Friendly, indiscretion About Discretion, 31 Emory

alle. Ca Gs Socdeseedesedsteesennaseueces 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-127

>

RICHARDSON-MERRELL INC.,

Petitioner,

Vv.

ANNE ELISABETH KOLLER, an infant, by and through

JOHN LAMONT KOLLER and CYNTHIA ANNE KOLLER,

her natural guardians, JoHN LAMONT KOLLER and

CYNTHIA ANNE KOLLER, individually, JAMEs G.

BuTLER, NICHOLAS R. ALLIS, and the law firm of

BUTLER, JEFFERSON, DAN & ALLIS,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

>

REPLY BRIEF FOR PETITIONER

More than half of respondents’ brief (“Res. Br.”) is

devoted to a lengthy Counter-Statement of the Case (Res.

Br. 1-26), which reargues the facts found by the District

Court. However, resolution of the important legal issues

presented by the petition for certiorari herein does not

require this Court to engage in de novo reconsideration of

the findings of fact made by the District Court, none of

which was found to be clearly erroneous by the Court of

Appeals.

Misstatements in Respondents’

Counter-Statement of the Case

Respondents assert that the material facts on this ap-

peal are “essentially undisputed” (Res. Br. 1; see also Res.

Br. 1 n.1, 10, 24, 25 n.21, 27, 40). On the contrary, as

shown in petitioner’s main brief, the record presented

serious issues of credibility as to the intent of both Butler

and Allis, and the District Court resolved those issues

adversely to respondents (Pet. Br. 7-8, 12-16). Because

respondents’ attempt to reargue the facts found by the

District Court has no bearing on the legal issues before

this Court, we have corrected the most serious misstate-

ments in the Appendix to this reply brief.

A. The Decision of the District Court

Respondents mischaracterize the central holdings of the

District Court. They argue that the District Court made

no finding that Butler or Allis violated any ethical stan-

dard (Res. Br. 19, 26, 38). This argument is misleading.

While the District Court did not characterize the miscon-

duct of Butler and Allis in terms of specific Disciplinary

Rules, the misconduct found by the District Court clearly

established serious violations of the Code of Professional

Responsibility. In the case of Butler, the District Court

founa a deliberate attempt to prejudice prospective jurors

(Pet. App. 77a-78a), conduct which has been held to

violate Canon 20 of the Canons of Professional Ethics

(now Disciplinary Rule 7-107(H) ©. the District of Col-

umbia Code of Professional Responsibility) at least since

State v. Van Duyne, 43 N.J. 369, 389, 204 A.2d 841, 852

(1964), cert. denied, 380 U.S. 987 (1965), which was cited

with approval by this Court in Sheppard v. Maxwell, 384

3

U.S. 333, 361 (1966).* In the case of Allis, the District

Court found a deliberate attempt to thwart a true investi-

gation of a crucial witness (Pet. App. 77a); such conduct

has long been held to violate the basic obligations of an

attorney (see Pet. Br. 20-21 n.*), and constitutes a viola-

tion of Disciplinary Rules 1-102 and 7-102 of the District

of Columbia Code of Professional Responsibility (Pet.

App. 9la, 92a-94a).**

Respondents also argue that the “linchpin” of the

District Court’s decision was its statement (Pet. App.

75a) that attorneys who have been admitted pro hac vice

for purposes of a particular case may be disqualified for

misconduct falling short of an ethical violation (Res. Br.

22; see also Res. Br. 19, 26, 38, 41). This statement has no

determinative significance in this case, because the find-

ings of the District Court clearly establish ethical viola-

tions of the first magnitude. Therefore, while petitioner

believes that the Court of Appeals spoke too broadly in

holding that the standard for disqualification of an attor-

ney admitted pro hac vice may never differ from that for

a regularly admitted attorney (Pet. App. 34a-35a), this

issue need not be reached in the present case.***

* The District Court noted that one of the responsibilities of an attorney

as an officer of the Court “is to refrain from any conduct which will obstruct

the administration of justice, such as the circumvention of a court's ruling on

the admissibility of evidence” (Pet. App. 77a).

** Respondents correctly state (Res. Br. 1 n.*) that the text of Disciplinary

Rule 7-102(B) of the District of Columbia Code of Professional Responsibil-

ity is incorrectly set forth at Pet. App. 93a-94a. Petitioner relied upon the

published text of the Disciplinary Rule, which is incorrect. The error has no

impact upon the issues presented by this appeal, because petitioner has not

relied upon the omitted portion of Disciplinary Rule 7-102(B).

*** It is well established that admission to practice pro hac vice is not a

right but a privilege, which rests in the sound discretion of the District Court.

See, e.g., Leis v. Flynt, 439 U.S. 438, 441-44 (1979); Ross v. Reda, 510 F.2d

4

Respondents argue that the District Court held that

Allis had an affirmative duty to invesi...ie possible fraud

by his own client, and that he was guilty of misconduct

because he failed to carry out this affirmative duty (Res.

Br. 19-20, 23-24, 40-41). The Court of Appeals also

adopted this interpretation of the District Court’s holding

(Pet. App. 4la-42a). However, it is a misreading of the

opinion of the District Court. That opinion makes clear

that it was respondents who argued that Allis was merely

fulfilling his responsibility under the Code of Profes-

sional Responsibility to investigate Ms. Janowski’s state-

ments (Pet. App. 7Sa-76a). The District Court found that

1172, 1173 (6th Cir.), cert. denied, 423 U.S. 892 (1975); Thomas v. Cassidy,

249 F.2d 91, 92 (4th Cir. 1957), cert. denied, 355 U.S. 958 (1958); Atchison,

T & SF Ry v. Jackson, 235 F.2d 390, 393 (10th Cir. 1956); Galahad v.

Weinshienk , SSS F. Supp. 1201, 1205-06 (D. Colo.), aff'd, No. 23-1115 (10th

Cir. Sept. 2, 1983), cert. denied, 104 S. Ct. 1907 (1984); Silverman v.

Browning, 414 F. Supp. 80, 85-88 (D. Conn.), aff'd, 429 U.S. 876 (1976);

Norfolk & W. Ry» v. Beatty, 400 F. Supp. 234, 236-38 (S.D. Ill.), aff'd, 423

U.S. 1009 (1975); In re Belli, 371 F. Supp. 111, 112 (D.D.C. 1974); Brown v.

Supreme Court, 359 F. Supp. 549, 558-59 (E.D. Va.), aff'd, 414 U.S. 1034

(1973); In re D. H. Overmyer Telecasting Co., 29 B.R. 647, 549 (Bkrtcy. Ct.

N.D. Ohio 1983), aff'd, No. 83-3771 (6th Cir. Nov. 5, 1984). Bur see In re

Evans, 524 F.2d 1004, 1007-08 (Sth Cir. 1975); Sanders v. Russell, 401 F.2d

241, 244-48 (Sth Cir. 1968); Spanos v. Skouras Theatres Corp., 364 F.2d iol,

169-71 (2d Cir.), cert. denied, 385 U.S. 987 (1966), questioned in Leis v.

Fiynt, 439 U.S. 438, 442 n.4 (1979).

In light of this well-established ; rinciple, it would appear that the District

Court, in exercising its discretion whether or not to invoke the remedy of

disqualification, should be free to take into account the fact that an attorney

has been admitted pro hac vice, particularly because the disciplinary

measures which may otherwise represent alternatives tc disqualification are

likely to be less effective in the case of an attorney from another jurisdiction.

No other court appears to have adopted the per se rule of the court below

that the standard for disqualification may never be different for an attorney

admitted pro hac vice. Cf. Cooper v. Hutchinson, 184 F.2d 119, 123 (3d Cir.

1950); State v. Kavanaugh, $2 N.J. 7, 19, 243 A.2d 225, 232, cert. denied,

393 U.S. 924 (1968).

5

the facts did not support this argument (Pet. App. 76a).

The District Court did not hold, as respondents contend,

that Allis was guilty of misconduct merely for failing to

make a true investigation. Rather, it held that his miscon-

duct consisted of an affirmative “attempt to thwart” such

a true investigation (Pet. App. 77a).

The District Court expressly found that if Butler and

Allis were disqualified, “remaining counsel can provide

plaintiffs with competent counsel” (Pet. App. 782). The

Court of Appeals did not reverse or question this finding,

but simply ignored it (Pet. Br. 34). Respondents argue

that Butler and Allis were plaintiffs’ principal trial coun-

sel (Res. Br. 21 n.20, 28). However, respondents do not,

and could not, contend that their six remaining counsel

would not be competent to represent them at the trial.

Two of respondents’ remaining counsel, Allen T. Eaton,

Esq. and George A. Kokus, Esq., are among the five lead

counsel for plaintiffs in the Multidistrict proceeding in

the Southern District of Ohio, which involves more than

600 Bendectin cases (see Pet. Br. 3 n.*).

B. The Decision of the Court of Appeals

Respondents repeatedly assert that the Court of Ap-

peals did not modify any of the factual findings of the

District Court, but instead “accepted the factual findings

of the district court and relied upon additional facts that

were undisputed in the record of the ase” (Res. Br. 24;

see also Res. Br. 1 n.1, 25 n.21, 27, 40). This assertion is

inaccurate, as is apparent from a comparison of the

opinions of the District Court and the Court of Appeals.

As to Allis, the District Court found an intent to

“thwart a true investigation of a crucial witness in this

6

case” (Pet. App. 77a), while the Court of Appeals found

that his actions “can more easily be uuderstood to reflect

a desire to get at the truth and to protect the interest of

his client rather than to ‘thwart a true investigation’ ”

(Pet. App. 47a). The trial court further found that Allis

intended to procure a retraction of statements already

made by his secretary to the defendant (Pet. App. 76a),

an issue which even the Court of Appeals admitted was

disputed (Pet. App. 17a n.34), and listed four factors

supporting its findings as to Allis’s intent (Pet. App.

76a-77a), each of which the Court of Appeals disputed

(Pet. App. 43a-48a).

As to Butler, the District Court found an intent to

circumvent its orders and to prejudice the defendant (Pet.

App. 78a), a finding which the Court of Appeals went out

of its way to question (Pet. App. Sia). The Court of

Appeals also made a de novo finding of absence of

prejudice to the defendant (ibid.), despite petitioner's

specific request for a remand on this issue (Pet. Br.

18-19).

ARGUMENT

POINT I

The Decision Below Wrongly Abolishes as a Matter of

Law the Established Authority of the District Courts to

Disqualify Counsel for Misconduct.

Respondents deny that the Court of Appeals has in

effect foreclosed disqualification as a remedy for miscon-

duct by counsel (Res. Br. 38-39). Respondents argue that

the Court of Appeals held that disqualification for mis-

conduct is permissible when (1) an attorney has violated

>

legal or ethical norms, and (2) the violation is likely to

infect future proceedings (Res. Br. 27, 38-39).* This

argument is inconsistent with the restrictive holding of the

Court of Appeals that disqualification should be denied

“le)xcept in cases of truly egregious misconduct likely to

infect future proceedings” (Pet. App. 38a; emphasis sup-

vlied). Respondents do not deny that, as a practical

matter, this holding effectively forecloses disqualification

as a remedy for misconduct.

The remedy of disqualification is long established (Pet.

Br. 26). Unlike the other remedies available to the courts

to deal with misconduct, it is prospective and preventive

in nature, rather than retrospective and punitive (Pet. Br.

28-29). It is at once more lenient and more effective than

such remedies as contempt and disbarment (Pet. Br. 28).

Neither respondents nc: the Court of Appeals has ex-

plained why this long-standing remedy for misconduct

should be abolished.**

POINT ll

The Court Below Brushed Aside the Clearly Erroneous

Rule and the Abuse of Discretion Standard of Review.

A. The Clearly Erroneous Rule

Respondents argue that the Court of Appeals “was

meticulous in following the ‘clearly erroneous’ rule

* Even under this view of the holding of the Court of Appeals, there

should at least have been a remand to the District Court for findings of fact

as to whether this standard was met (Pet. Br. 30).

** Ordinarily, the question whether misconduct is “truly egregious” is

within the discretion of the District Court; in this case, however, the Court of

Appeals purported to hold as a matter of law that disqualification was

improper (Pet. App. 56a).

throughout its opinion” (Res. Br. 40). This argument is

disingenuous. The Court of Appeals gave lip service to

the rule, but it departed sharply from the facts found by

the District Court, although it found none of them to be

clearly erroneous (see pp. 5-6 supra). The plainest proof

of this is the very fact that respondents have felt com-

pelled to argue that there were no disputed issues of

material fact in this case (see p. 2 supra).

B. The Abuse of Discretion Standard

Respondents argue that the abuse of discretion stan-

dard of review was not violated because the Court of

Appeals held as a matter of law that the rermi¢dy of

disqualification could not be applied in this case (Res. Br.

39-40 n.31). This argument misconceives the nature of the

abuse of discretion standard. The essence of the abuse of

discretion standard is that the District Court has the

power to choose an appropriate remedy in a particular

case. See, e.g., Friendly, Indiscretion About Discretion,

31 Emory L.J. 747, 761 (1982). Under the abuse of

discretion standard, whether or not misconduct is “truly

egregious” (Pet. App. 38a) is for the evaluation of the

District Court, not the Court of Appeals. Where, as here,

the appellate court forecloses a particular remedy in a

particular case, the abuse of discretion standard has been

abrogated.

POINT Ill

The Court Below Wrongly Held That an Attorney May

Not Be Disqualified for Releasing Material Which Has

Been Ruled Inadmissible With Intent to Circumvent the

Ruling and to Prejudice an Opponent.

Respondents and the amici rely upon the line of cases

beginning with Bridges v. California, 314 U.S. 252

9

(1941), and continuing through Pennekamp v. Florida,

328 U.S. 331 (1946), and Craig v. Harney, 331 U.S. 367

(1947), to Wood v. Georgia, 370 U.S. 375 (1962), and

Landmark Communications, Inc. v. Virginia, 435 U.S.

829 (1978), for the proposition that speech concerning the

administration of justice may be restricted only on the

basis of a serious and imminent danger to the administra-

tion of justice (Res. Br. 48-49; Post-ACLU Br. 7-10). This

argument ignores the fact that all of those cases dealt with

speech by the press and other parties unconnected with

the courts, and did not deal with speech about pending

judicial proceedings by lawyers and other officers of the

courts involved in those proceedings.* Indeed, the Court

emphasized the importance of this distinction in the most

recent of this line of cases, Landmark Communications,

Inc. v. Virginia, 435 U.S. 829, 837 (1978):

**We do not have before us any constitutional chal-

lenge to a State’s power to keep the Commission’s

proceedings confidential or to punish participants for

breach of this mandate. Cf. Nebraska Press Assn. v.

Stuart, 427 U. S. 539, 564 (1976); id., at 601 n.27

(BRENNAN, J., concurring in judgment); Wood vy.

Georgia, 370 U. S. 375, 393-394 (1962)... .”

(Footnote omitted.)

The issue posed by this argument of respondents and

the amici has importance far beyond the confines of this

case. The power of the courts to restrain the calculated

use of the press to communicate with potential jurors is

essential to the administration of justice. Every eviden-

* While Wood v. Georgia, 370 U.S. 375 (1962), involved statements by a

county sheriff, the Court emphasized that the statements were made in a

private capacity. 370 U.S. at 393-94.

10

tiary objection that is sustained by a court restrains the

speech of the lawyers directed to jurors or prospective

jurors. If the First Amendment gave lawyers a right to

ignore such restraints, then a whole new mode of advo-

cacy would be created, and the traditional power of the

courts to administer the rules of evidence in proceedings

before them would be rendered nugatory. Counsel for the

amici profess surprise that ‘‘every evidentiary ruling

might be considered a de facto gag order’’ (Post-ACLU

Br. 13). As every trial lawyer knows, this is precisely the

effect of an evidentiary ruling: once the court has sus-

tained an objection to an item of evidence, it is unprofes-

sional for counsel to seek to evade the court’s ruling by

using indirect means to place the evidence before the jury.

See DR 7-106(C). 7-108(A), (B).

Both respondents and the amici argue that Butler's

conduct did not violate Canon 20 of the Canons of

Professional Ethics, as embodied in Disciplinary Rule

7-107(H) of the District of Columbia Code of Profes-

sional Responsibility (Res. Br. 45-46; Post-ACLU Br.

14-16). This argument ignores the language of Canon 20

and its judicial interpretation. Canon 20 expressly states

that ‘‘[a}n ex parte reference to the facts should not go

beyond quotation from the records and papers on file

with the court... .”’ In Sheppard v. Maxwell, 384

U.S. 333, 361 (1966), this Court cited with approval the

holding of State v. Van Duyne, 43 N.J. 369, 389, 204

A.2d 841, 852 (1964), cert. denied, 380 U.S. 987 (1965),

that Canon 20 prohibits the divulging of prejudicial

matters by a lawyer. C/., e.g., Ross v. Reda, 510 F.2d

1172, 1173 (6th Cir.), cert. denied, 423 U.S. 892 (1975).

Finally, amici (but not respondents) argue that if

Canon 20 were to be applied to Butler’s conduct, it would

be void for vagueness (Post-ACLU Br. 18-20). This

argument is wholly misplaced. As the District Court

found, Butler intentionally sought to circumvent the

Court’s orders and prejudice the jury panel (Pet. App.

77a-78a). Accordingly, application of Canon 20 to Butler

raises no problem of vagueness. See, e.g., Village of

Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 494 (1982); Parker v. Levy, 417 U.S. 733,

755-56 (1974).

POINT IV

Attorney Disqualification Orders in Civil Cases Are

Not Subject to Interlocutory Appeal Under Flanagan v.

United States, 104 8. Ct. 1051 (1984).

Respondents have become entangled in a hopeless con-

tradiction with respect to the question whether a showing

of prejudice is required to overturn an order disqualifying

an attorney in a civil case. On the one hand, respondents

argue that a showing of prejudice would be required and

could not be made at the end of the case, so that such an

order would be effectively unreviewable on appeal from a

final judgment (Res. Br. 30-31). On the other hand,

respondents maintain that a showing of prejudice would

not be required (Res. Br. 29, 37). Respondents do not

attempt to explain how both of these propositions could

possibly be true at one and the same time.

The contradictions in which respondents have become

enmeshed confirm the truth of the point made in our

main brief (Pet. Br. 46), that the reasoning of Flanagan v.

United States, 104 S. Ct. 1051 (1984), applies with equal

force to attorney disqualification orders in civil cases. If a

12

showing of prejudice is required, it cannot be made until

a final judgment has been entered; while if such a show-

ing is not required, there can be no possible contention of

unreviewability on appeal from a final judgment.

Respondents argue that attorney disqualification orders

in civil cases should be subject to interlocutory appeal

because of the economic burden that may be imposed by

such an order (Res. Br. 28, 31 n.25). But attorney

disqualification orders in crimina! cases may also impose

an economic burden upon defendants who must hire new

counsel, and who may have paid substantial retainers to

their disqualified counsel. More fundamentally, consider-

ations of economic burden do not vitiate the final judg-

ment rule. See, e.z., Coopers & Lybrand v. Livesay, 437

U.S. 463, 476 (1978). “‘Mere litigation expense, even

substantial and unrecoupable cost, does not constitute

irreparable injury.’ Renegotiation Board v. Bannercraft

Clothing Co., Inc., 415 U.S. 1, 24 (1974), citing Myers v.

Bethlehem Shipbuilding Corp., 303 U.S. 41, 51-52 (1938).

““If the expense of litigation were a sufficient reason for

granting an exception to the final judgment rule, the

exception might well swallow the rule.”’ Lusardi v. Xerox

Corp., 747 F.2d 174, 178 (3d Cir. 1984).

Respondents argue at length that it would be impossi-

ble to show prejudice from an attorney disqualification

order at the end of the case because it would be a matter

of sheer speculation whether or not the disqualified attor-

ney would have done better than the successor attorney

(Res. Br. 30-31). As noted in our main brief, the same

argument was made by the losing parties in Flanagan

(Pet. Br. 47), and respondents have not shown why the

argument has merit here when it did not in Flanagan.

13

Moreover, even if respondents were correct in their

premise that it would sometimes (or often) be a matter of

speculation whether or not a showing of prejudice could

be made at the end of the case, the conclusion drawn by

respondents is neither the only nor the appropriate con-

clusion to be drawn from this premise. Common sense

would suggest that if a claim of prejudice has no basis

other than speculation, there has in fact been no preju-

dice. Cf., e.g., Strickland v. Washington, 104 S. Ct.

2052, 2067-69 (1984); United States v. Cronic, 104 S. Ct.

2039, 2049-51 (1984). The suggestion made by some

Courts of Appeals, see, e.g., Gough v. Perkowski, 694

F.2d 1140, 1144 (9th Cir. 1982), that after judgment a

court would be required to hypothesize a reenactment of

the trial to compare differences in style and judgment

between attorneys, is a straw man. Prejudice is not

defined by such subtle differences. The question is simply

whether the party was prejudiced by inability to secure

the services of an attorney of comparable standing to the

disqualified attorney. This can be demonstrated by objec-

tive, not speculative, proof.

Finally, respondents argue that disqualification orders

in civil cases must be subject to interlocutory appeal

because, respondents contend, disqualification motions

are often made for tactical reasons (Res. Br. 33-35).

Respondents ask rhetorically: ‘‘Why has petitioner de-

voted massive and expensive resources to the time-con-

suming effort to have Allis and Butler disqualified?’’

(Res. Br. 34-35.) The answer is not, as respondents

suggest (Res. Br. 35), that petitioner fears that Butler

and Allis will prove effective advocates on the merits of

the case. Petitioner does not share respondents’ stated

belief in the unique abilities of Butler and Allis (Res. Br.

14

21 n.20, 28). Rather, the reason why this disqualification

motion has been pursued by petitioner is that, having

been made the victim of deliberate unprofessional con-

duct by Butler and Allis, petitioner wishes to foreclose

similar misconduct in the future. —

Respondents’ argument that disqualification motions

are made for tactical reasons ignores the fact that the

question before the Court involves only the appealability

of disqualification motions that have been granted by the

District Courts. Respondents’ apparent distrust of the

District Courts runs counter to this Court’s teaching that

the District Courts have a central role in the administra-

tion of justice in the Federal judicial system. See, e.g.,

Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67

(1980); Geders v. United States, 425 U.S. 80, 86-87

(1976).

The trial judge has an extraordinarily difficult task. A

District Judge must make many rulings before, during,

and after trial. In the interesis of effective administration

of justice, the authority of the District Judge to make

such rulings should be upheld, anc the law should make

clear to all concerned that the rulir ’s the District Judge is

called upon to make do, with very narrow and well

defined exceptions, become the law of the case, subject

only to eventual review on appeal after a final judgment

has been rendered. See, e.g., Flanagan v. United States,

104 S. Ct. 1051, 1054 (1984). As this Court stated in

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,

374 (1981), ‘‘[pjermitting piecemeal appeals would un-

dermine the independence of the district judge, as well as

the special role that individual plays in our judicial

system.”’

a

15

CONCLUSION

For the reasons given in Points I-III above, the judg-

ment of the Court of Appeals should be reversed, and the

case should be remanded to the Court of Appeals with

directions to affirm the order appealed from. In the

alternative, for the reasons given in Point IV above, the

judgment of the Court of Appeals should be reversed,

and the case should be remanded to the Court of Appeals

with directions to dismiss the appeal.

Dated: January 28, 1985

Respectfully submitted,

LAWRENCE E. WALSH

Crowe & Dunlevy

1800 Mid-America Tower

20 North Broadway

RICHARD C. FORD Oklahoma City, Oklahoma 73102

Of Counsel (405) 235-7700

Counsel of Record for Petitioner

Guy MILLER STRUVE

OGDEN N. Lewis

WHITNEY L. SCHMIDT

Davis Polk & Wardwell

1575 I Street, N.W.

Washington, D.C. 20005

(202) 789-7100

VINCENT H. COHEN

ROBERT B. CAVE

= Hogan & Hartson

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4500

Counsel for Petitioner

APPENDIX

Response to Respondents’ Factual Arguments

A. Butler

Respondents assert :nat the “only evidence” as to

Butler’s intent was that contained in the two affidavits

submitted by Butler to the District Court (Res. Br. 18). In

actuality, as set forth in petitioner’s main brief, these

self-serving affidavits were no more than pleadings, un-

supported by evidence and untested by cross-examination

(Pet. Br. 7-8). The true evidence on this issue, all of which

is ignored by respondents, included the timing of Butler’s

disclosure on the eve of trial, the restriction of the

disclosure to a single newspaper, the admission of Butler’s

counsel that he could not explain the timing of Butler’s

actions (J. A. 138-139), and the fact that Butler had

previously used the press to communicate inadmissible

evidence to the jury in another case (J. A. 262-267).

In the face of these undeniable facts, the bald asser-

tions of Butler’s affidavits that “there was mo motive

other than to get the drug off the market”, and that his

communication “was not intended in any way to in-

fluence any juror or potential juror” (J. A. 137, 250;

emphasis supplied), were lacking in credibility. The Dis-

trict Court’s finding that Butler’s purpose was to circum-

vent the Court’s preclusion orders and prejudice the

defendant (Pet. App. 77a-78a) was not reversed by the

Court of Appeals (see Pet. App. Sla), as respondents

admit (Res. Br. 25 n.22). It is established for purposes of

this appeal.

B. Allis

Respondents’ discussion of Allis’s conduct simply ig-

nores the controlling finding of the District Court that

2a

Allis’s intent was not “to ascertain the truth” but rather

“to thwart a true investigation of a crucial witness in this

case in pursuit of protecting the interests of his clients”

(Pet. App. 77a). Instead, respondents present a summary

of Allis’s own testimony concerning the reasons for his

conduct, which the District Court heard and considered

at length, but ultimately did not accept.

As an underpinning of their justification for Allis’s

conduct, respondents allege that Mrs. Koller’s claim to

have taken Bendectin during the critical period was cor-

roborated by physicians’ medical records (Res. Br. 1-2).

In fact, there is no such corroboration for Mrs. Koller’s

claim.* The only medical record as to drugs taken during

the critical period fails to mention Bendectin at all.** The

other records of Walter Reed Army Medical Center which

could indicate whethcr cr not Mrs. Koller took Bendectin

Mrs. Koller failed to find an early prescription (C.A.

App. 1105, 1107, 1182-1187, 1189-1191, 1195-1197).***

* In support of thew allegation, respondents cite two medical records,

one of which states that Mrs. Koller was taking Bendectin on November 20,

1978, almoct a month after the critical pernod defined by respondents ended

on or about October 23, 1978 (J. A. 147), while the other states that Mrs.

Koller took Bendectin during the “Ist trimester” (J. A. 149), which does not

tromester.

** This record is a form filled owt by Mrs. Koller when applying for

obstetrical care on October 25, 1978, about two days after the end of the

critical period defined by respondents (J A. 144-145). The form inquired in

two places as to medications taken since the last menstrual period (J. A. 144,

Questions 11, 16). Mrs. Koller left both spaces blank (ibid_).

*** Mrs. Koller has given widely varying testimony as to how and when she

first took Bendectin during her pregnancy with Anne Koller (C.A. App.

1140-1141, 1143-1144, 1151-1158, 1193-1194, 1198). Her husband has like-

wise changed his testimony on this subject (C.A. App. 1201-1223, 1235).

Relatives and close associates of Mrs. Koller recall that Mrs. Koller was

3a

Respondents assert that “[ujnbeknownst to Allis, his

secretary had been in regular contact with representatives

of petitioner’s counsel during the preceding four days”

(Res. Br. 2).* In fact, as shown in petitioner's main brief,

the credible evidence established that Allis knew on De-

cember 27, 1982 that Ms. Janowski had told defense

counsel that the case was fraudulent (Pet. Br. 12), and the

District Court found that the primary if not the sole

reason for Allis’s conduct on that date was to obtain a

retraction of Ms. Janowski’s statements to defense coun-

sel (Pet. App. 76a).

that petitioner was engaging in improper conduct, and he

wished to get to the bottom of it to protect his clients’

interests” (Res. Br. 3). The District Court made an en-

tirely diff-rent finding as to Allis’s purpose: “to thwart a

do not recall her taking Bendectin or any other drug to alleviate her nausea

(Barnes 1/26/83 Dep. Il-S-11-6, 11-26; C.A. App. 1298-1299, 1303, 1325

1332). Only after Ms. Janowski subsequently indicated that she would not

consult Mr. Schuck, after the Butler firm took a statement from her, and

after the Butler firm waived the attorney-client privilege did defendant

; 141, 210, 260).

parte communication to the District Court (Res. Br 2-3), what in fact

occurred was that defense counsel attempted to arrange for a conference with

was

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4a

Respondents quote what purport to be representatis¢

excerpts from the tape recording made by Allis and

Humphries on the evening of December 27, 1982 (Res. Br.

5-6). Respondents ignore the key portion of the tape

recording, described in petitioner's main brief, in which

Allis pulled out the statement he had prepared for Ms.

Janowski to sign (Pet. Br. 14).*

Respondents attempt to palliate Allis’s conduct by

attacking that of others. They impugn the independence

of Ms. Janowski’s counsel, Carl J. Schuck, Esq. (Res. Br.

9 n.9), although the record shows that Mr. Schuck had no

previous acquaintance with defense counsel and was rec-

ommended by Leonard S. Janofsky, Esq., a former Presi-

dent of the American Bar Association (J. A. 3i).

Respondents describe certain payments made at Mr.

Schuck’s instance to defray medical and living expenses

of Ms. Janowski and legal expenses of her roommate

(Res. Br. 12-13), without mentioning that it was Mr.

Schuck who concluded that these payments were neces-

sary to sustain Ms. Janowski and her premature infant

until she could find new work, and who suggested that

they should be divided between the parties, a suggestion

which respondents rejected (J. A. 75-79). Finally, re-

spondents argue in a footnote that defense counsel were

or may have been guilty of unethical conduct (Res. Br. 14

n.13), without attempting to explain their failure to put

these allegations to the test by making a motion in the

District Court (see Pet. Br. 17-18 n.*).

* Respondents also allude (Res. Br. 7-8 n.7) to a sheet on which Ms.

Janowski had written out a purported conversation with Mrs. Koller (J. A.

28), without mentioning that Ms. Janowski afterwards testified under oath

that she had in fact had such a conversation with Mrs. Koller (J. A. $2-53).

Sa

Respondents attack Ms. Janowski’s credibility in a

lengthy footnote which is riddled with inaccuracies (Res.

Br. 11-12 n.10). These inaccuracies need not be detailed

here, because, as the District Court stated, the issue

before it was “not whether Krystyna Janowski is a credi-

ble witness or not, but whether or not whatever Krystyna

Janowski knows or does not know plaintiffs have tried to

keep from me” (J. A. 164). After hearing solely witnesses

identified with the respondents, called by petitioner as

adverse witnesses, the District Court concluded that this

was what Allis had tried to do (Pet. App. 75a-77a).

Respondents’ brief stresses the six character witnesses

who appeared on behalf of Allis (Res. Br. 14), without

mentioning that three of them, including Judge Van

Dusen and Attorney General Van de Kamp, admitted that

their opinion of Allis would be affected if the facts set

forth in the District Court's order to show cause were

accurate (C.A. App. 857-858, 862-863, 871). Similarly,

respondents rely upon the testimony of two experts in

legal ethics (Res. Br. 14) without disclosing that both of

them testified that if the facts outlined in the order to

show cause were assumed to be accurate, they would

conclude that Allis’s conduct violated the Code of Profes-

sional Responsibility (J. A. 312-313, 321-322). Indeed,

the District Court rejected the opinions of the expert

witnesses because they were unsupported by “the totality

of the evidence” (Pet. App. 76a).

Thus respondents’ effort to reargue the facts as to the

conduct of Allis is flatly inconsistent with the express

findings of the District Court.