# Reply Brief — Richardson-Merrell Inc. v. Koller

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0339%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1985
- **Citation:** 472 U.S. 424

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0339%3A11. Public record. Not legal advice.