A Sealed Case, s. 89-2726
| Citation | 890 F.2d 15 |
| Decision Date | 20 November 1989 |
| Docket Number | Nos. 89-2726,89-2750,s. 89-2726 |
| Parties | 51 Fair Empl.Prac.Cas. 678, 58 USLW 2345 A SEALED CASE. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.
The law firm representing a defendant in a suit involving sexual harassment asked the district court to permit it to withdraw. Because explanation required disclosure of communications from its client, the presiding judge referred the request to another member of the court, who referred it to a magistrate in turn. Proceedings in the district court and this court have been conducted under seal to prevent the disclosure of confidences.
The law firm believes that its client will commit perjury. This fear is well-founded. On a subject material to the case, the defendant said one thing at his deposition and told his lawyers the opposite orally. Before the magistrate the defendant explained the contradiction by saying that he was simply offering to agree with part of the plaintiff's version if that would help--which the magistrate took as a confession of willingness to lie when expedient, although not a confession to the particular falsehood of which counsel suspect him. On a collateral matter the defendant lied at a deposition in another case; the defendant also threatened to testify falsely on a third subject unless his employer offered more to settle the litigation. The law firm believes that it cannot trust any of its client's testimony and that to put him on the stand would violate a duty to the court, while to prevent the defendant from testifying would violate a duty to the client. It asked the court for leave to withdraw.
Magistrate Weisberg recommended that the court deny the motion, because the firm could not know that the client would testify falsely in all respects, and it could refrain from opening up the subjects that it was confident would produce falsehoods. The magistrate thought that the age of the case (more than two years) counseled against letting the firm withdraw; if it did, the magistrate concluded, the client would be forced to proceed without counsel. Judge Bua entered an order providing that the magistrate's report is "adopted in its entirety" by the court.
On a motion to reconsider, the district judge allowed oral argument. This time he repudiated the magistrate's report. Although the magistrate found that the request to withdraw is unrelated to the fact that the firm has not been paid since mid-1988 (and claims it is owed more than $100,000), the judge said that the magistrate undoubtedly recommended denial of the motion only because of the dispute about unpaid fees. He continued:
... There is no question in my mind--I can tell you, I would allow you to withdraw when you came before me and set it down for a hearing, okay. And I can't believe the magistrate wouldn't allow you to withdraw if there were no fee question.
Do you really believe that if you appeared before Magistrate Weisberg, saying, Judge, we just--we have a dilemma, an ethical dilemma. We have $100,000 coming. And we are going to waive that hundred thousand dollar fee. Let us out of this case--that he, in a minute, he would say, motion granted, or make that recommendation of you. I can tell you that I was prepared to do it. And I am prepared to do it now. You tell me, we will waive our fee. You are out of the case.
Unwilling to pay this price to escape an ethical dilemma, the law firm filed a notice of appeal and a petition for a writ of mandamus.
Whether an attorney held in a case against his will may appeal is a tough question. Conticommodity Services, Inc. v. Ragan, 826 F.2d 600 (7th Cir.1987). The order to render unwilling services is like an injunction, but many orders "to do"--such as a directive to search files and turn over documents, or to draw up plans in desegregation cases--are not injunctions because they have nothing to do with the relief in the main case. In re City of Springfield, 818 F.2d 565, 567-68 (7th Cir.1987). Rulings on the disqualification of counsel, whether granted or denied, are not immediately appealable, e.g., Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), but this is so in part because errors in such matters may be grounds for reversal. It is easier to portray compulsion to render services as an appealable "collateral order" because dragooning counsel to represent a client is not likely to produce reversal.
We need not decide whether an appeal lies. Bypassing all questions concerning appellate jurisdiction, Ragan issued a writ of mandamus, concluding that ordering a lawyer to represent a nominal party to civil litigation exceeded the court's power. Lately the Supreme Court approved the use of mandamus to contest an involuntary civil appointment. Mallard v. United States District Court, --- U.S. ----, 109 S.Ct 1814, 1822, 104 L.Ed.2d 318 (1989). That writ is available when the district judge exceeds his authority by compelling counsel to render involuntary services, which was true in Ragan, was true in Mallard, and is true here.
We take at face value the representation of the district judge that he was "prepared to do it"--that is, to allow the law firm to withdraw, if the firm would but waive any claim for payment. That must mean that, in the district judge's view, the interests of justice do not require the further participation of...
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