465 U.S. 259 (1984), 82-374, Flanagan v. United States

Docket Nº:No. 82-374.
Citation:465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288
Party Name:Robert FLANAGAN, James Keweshan, Joseph Landis and Thomas McNamee, Petitioners v. UNITED STATES.
Case Date:February 21, 1984
Court:United States Supreme Court

Page 259

465 U.S. 259 (1984)

104 S.Ct. 1051, 79 L.Ed.2d 288

Robert FLANAGAN, James Keweshan, Joseph Landis and Thomas McNamee, Petitioners



No. 82-374.

United States Supreme Court.

Feb. 21, 1984

Argued Nov. 30, 1983.

[104 S.Ct. 1051] Syllabus[*]


Petitioners, four Philadelphia police officers, were indicted by a federal grand jury for conspiring to deprive citizens of their civil rights and for committing substantive civil rights offenses. Prior to the return of the indictment, petitioners had retained a certain law firm to act as joint counsel, and continued the joint representation after the indictment, even though the indictment did not make the same allegations against all petitioners. After three of the petitioners moved to sever their case from the fourth petitioner's and after petitioners moved to dismiss the conspiracy count, the District Court granted the Government's motion to disqualify the law firm from its multiple representation. The Court of Appeals affirmed, noting that it had jurisdiction under 28 U.S.C. § 1291, because the disqualification order was appealable prior to trial as a collateral order.

Held: The disqualification order was not immediately appealable under § 1291, and hence the Court of Appeals had no jurisdiction to review the order prior to entry of final judgment in the case. Pp. 1054 - 1058.

(a) The policy embodied in § 1291, which limits the jurisdiction of the courts [104 S.Ct. 1052] of appeals to appeals from "final decisions of the district court," is inimical to piecemeal appellate review of trial court decisions that do not terminate the litigation. This policy is at its strongest in the field of criminal law. Pp. 1054 - 1055.

(b) To come within the "collateral order" exception to the final judgment rule, a trial court order must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351. A counsel disqualification order is not analogous to any of the three types of interlocutory orders--orders denying motions to reduce bail or to dismiss an indictment on double jeopardy or speech or debate grounds--that this Court has found immediately appealable in criminal cases as collateral-order exceptions. Nothing about a counsel disqualification order distinguishes it from the run of pretrial decisions that affect the rights of criminal defendants yet must await completion of trial court proceedings for review. Such an order fails to satisfy the

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stringent Coopers & Lybrand conditions for qualification as an immediately appealable collateral order, and the overriding policies against interlocutory review in criminal cases apply in full. Pp. 1055 - 1058.

679 F.2d 1072 (CA3 1982), reversed.


Edward H. Rubenstone argued the cause for petitioners. With him on the briefs was Richard A. Sprague.

Deputy Solicitor General Frey argued the cause for the United States. With him on the brief was Solicitor General Lee, Assistant Attorney General Trott, Richard G. Wilkins, and Peter D. Isakoff.*

* Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by James D. Crawford, Burt Neuborne, and Charles S. Sims; and for the National Association of Criminal Defense Lawyers et al. by Eugene G. Iredale and James M. Shellow.

Edward H. Rubenstone, Philadelphia, Pa., for petitioners.

Andrew L. Frey, Washington, D.C., for respondent.


Justice O'CONNOR delivered the opinion of the Court.

In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct 669, 66 L.Ed.2d 571 (1981), the Court held that a pretrial denial of a motion to disqualify counsel in a civil case is not appealable prior to trial under 28 U.S.C. § 1291 as a final collateral order. The Court reserved the questions of the immediate appealability of pretrial denials of disqualification motions in criminal cases and of pretrial grants of disqualification motions in both criminal and civil cases. Id., at 372, n. 8, 101 S.Ct., at 672 n. 8. We decide today that a District Court's pretrial disqualification of defense counsel in a criminal prosecution is not immediately appealable under 28 U.S.C. § 1291.


Petitioners are four police officers who formed a "grandpop" decoy squad in the Philadelphia Police Department. Petitioner Flanagan would pose as an aged derelict, a likely target for street criminals. When Flanagan gave the standard alarm, the other members of the decoy team would move in to make an arrest.

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A federal grand jury in the Eastern District of Pennsylvania indicted petitioners in September 1981. The indictment alleged that petitioners had conspired to make arrests without probable cause and had unlawfully arrested and abused eight people. One count of the indictment charged petitioners with conspiring to deprive citizens of their civil rights in violation of 18 U.S.C. § 241. The remaining 12 counts charged petitioners, in various combinations, with committing substantive civil rights offenses in violation of 18 U.S.C. § 242.

Prior to the return of the indictment, petitioners had retained the law firm of Sprague and Rubenstone to act as joint counsel. Petitioners decided to continue the joint representation after the indictment was handed down, even though the indictment did not make the same allegations against all petitioners. Petitioners Keweshan, Landis, and McNamee, however, moved to sever their case from petitioner Flanagan's, arguing that the government's evidence against Flanagan alone was so much greater than the evidence against them that severance was necessary to avoid prejudicial spillover. In addition, based on the asserted differences in their involvement in the activities alleged in the substantive counts of the indictment, petitioners moved to dismiss the conspiracy count. The Government responded by moving to disqualify Sprague and Rubenstone [104 S.Ct. 1053] from its multiple representation of petitioners and by asking the court to inquire into the representation as required by Federal Rule of Criminal Procedure 44(c). 1

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In early December 1981, following a hearing and briefing on the Government's motion, the District Court 527 F.Supp. 902 (D.C.1981) disqualified the law firm from participation in the case. The court found that no actual conflict of interest had yet developed but that there was a clear potential for conflict. Most notably, the severance motion and supporting papers showed that petitioner Flanagan's interests were likely to diverge from the other petitioners' interests. The District Court also found that petitioners had voluntarily, knowingly, and intelligently waived their right to conflict-free representation. The court concluded, however, that it had the authority and, indeed, the obligation under Rule 44(c) to disqualify counsel when "the likelihood is great that a potential conflict may escalate into an actual conflict." App. to Pet. for Cert. A-27. The court presumed that Sprague and...

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