Ah Ju Steel Co., Ltd. v. Armco, Inc., Appeal No. 82-1

CourtUnited States Court of Customs and Patent Appeals
Writing for the CourtMARKEY, , and RICH, BALDWIN, MILLER and NIES
Citation680 F.2d 751
PartiesAH JU STEEL CO., LTD., et al., Appellants, v. ARMCO, INC., CF&I Steel Corp., and the United States, Appellees. AH JU STEEL CO., LTD., et al. and the United States, Appellants, v. ARMCO, INC., and CF&I Steel Corp., Appellees.
Docket NumberAppeal No. 82-1,82-4.
Decision Date10 June 1982

680 F.2d 751

AH JU STEEL CO., LTD., et al., Appellants,
v.
ARMCO, INC., CF&I Steel Corp., and the United States, Appellees.

AH JU STEEL CO., LTD., et al. and the United States, Appellants,
v.
ARMCO, INC., and CF&I Steel Corp., Appellees.

Appeal Nos. 82-1, 82-4.

United States Court of Customs and Patent Appeals.

June 10, 1982.


680 F.2d 752

Saul L. Sherman, Dennis A. Adelson, New York City, for appellants, Ah Ju Steel Co., Ltd., et al.

Michael H. Stein, Warren H. Maruyama, Washington, D. C., for the Intern. Trade Com'n.

Bernard J. Babb, Herbert Peter Larsen, New York City, for appellees, Armco, Inc.

Before MARKEY, Chief Judge, and RICH, BALDWIN, MILLER and NIES, Judges.

RICH, Judge.

This appeal is from an order of the United States Court of International Trade of August 4, 1981, granting the motion of appellees, plaintiffs below, to disqualify the law firm representing appellants, intervenors below. 2 CIT 45, 520 F.Supp. 1220 (1981). We reverse.

The material facts in this case are not in dispute, and are adequately set forth in the opinion below, familiarity with which is assumed. The issues involved in this case are whether an order disqualifying counsel is appealable, and, if it is, whether there was reversible error in the trial court's finding that Martin J. Lewin, an associate in the law firm of Daniels, Houlihan & Palmeter, had "substantial responsibility" for the matter herein1 while he was an "attorney advisor" for Commissioner Paula Stern at the International Trade Commission (ITC) in late 1978 and early 1979.

Appealability

Appellees raise as a threshold issue the question whether an order granting a motion to disqualify counsel is appealable immediately as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). They do not deny that the circuits have uniformly determined that such orders are appealable under their jurisdictional statute, 28 U.S.C. § 1291,2 identical in all material respects to ours, 28 U.S.C. § 1541(a).3 Rather, they rely on policy considerations enunciated in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), wherein the Court held that orders denying motions to disqualify counsel are not appealable. The Court explicitly

680 F.2d 753
noted in Firestone, however, that it was expressing no opinion on the appealability of an order granting a motion to disqualify, such as we confront here. 449 U.S. at 372 n.8. Thus, such orders technically remain appealable, and, in fact, at least four circuits since Firestone have reaffirmed their appealability.4 In short, neither appellees' argument nor our independent review of the issue persuades us to part company with the circuits which have considered this issue. We therefore hold that the order granting the motion to disqualify counsel is appealable immediately as a collateral order

Merits

Disciplinary Rule (DR) 9-101(B) of the Code of Professional Responsibility as adopted by the American Bar Association (ABA) provides:

A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

As a disciplinary rule, this provision is "mandatory in character" and states "the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action." ABA Code of Professional Responsibility, Preliminary Statement (1976). Thus, it often forms the basis of a disqualification motion, either alone as an expressly adopted court rule, or, as here, as a minimum standard of conduct used by the trial court as a guide in exercising its inherent authority to regulate those who practice before it.

The crucial portion of the lower court's opinion is short and to the point:

Lewin had substantial responsibility over the subject matter of this litigation, Korean wire nails, while a government employee as attorney adviser to Commissioner Stern. He admitted that he had access to confidential documents in the matter during the preliminary investigation. It has been shown above that the matters embraced within this case were substantially related to matters before the ITC when Lewin was Attorney Adviser to one of the commissioners. The plaintiff does not need to show more. * * * The Court holds that Lewin is disqualified from participating in this litigation by virtue of his having received privileged information as a government employee with the ITC which was unavailable to plaintiffs. 520 F.Supp. at 1224.

Appellants concede that we may reverse the lower court's determination that Lewin had substantial responsibility within the meaning of DR 9-101(B) only if that determination is clearly erroneous. This is the appropriate standard of review if a finding of substantial responsibility is a factual determination.5 At least one court has so treated such a finding. Taxpayers, Homeowners and Tenants Protective Ass'n, Inc. v. Haber, 634 F.2d 182, 183 (5th Cir.

680 F.2d 754
1981). We assume without deciding that whether an individual had substantial responsibility in a matter is a factual determination rather than a conclusion of law. Accordingly, we apply the clearly erroneous standard here. Doing so, we reverse the lower court's determination because, on the entire evidence, we are "left with the definite and firm conviction that a mistake has been...

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9 practice notes
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...thereunder. In applying Sec. 11.111, the Office would continue to follow the principles announced in AH JU Steel Co., Ltd. v. Armco, Inc., 680 F.2d 751 (CCPA 1982); Sierra Vista Hospital, Inc., v. United States, 639 F.2d 749 (Ct.Cla.1981); Armstrong v. McAlpin, 625 F.2d 433 (2nd Cir. 1980) ......
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...thereunder. In applying Sec. 11.111, the Office would continue to follow the principles announced in AH JU Steel Co., Ltd. v. Armco, Inc., 680 F.2d 751 (CCPA 1982); Sierra Vista Hospital, Inc., v. United States, 639 F.2d 749 (Ct.Cla.1981); Armstrong v. McAlpin, 625 F.2d 433 (2nd Cir. 1980) ......
  • Panduit Corp. v. All States Plastic Mfg. Co., Inc., No. 84-569
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • September 25, 1984
    ...courts, has ruled that a grant of a motion to disqualify counsel is an immediately appealable decision. Ah Ju Steel Co. v. Armco, Inc., 680 F.2d 751, 753 (CCPA 1982). 8 This result has also been reached in the Seventh Circuit. See Freeman, supra. Accordingly, the order disqualifying counsel......
  • Freeman v. Chicago Musical Instrument Co., No. 82-1372
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 30, 1982
    ...Firestone. See, e.g., Greitzer & Locks v. Johns-Manville Corp., No. 81-1379 (4th Cir. Mar. 5, 1982); Ah Ju Steel Co., Ltd. v. Armco, Inc., 680 F.2d 751, 753 (C.C.P.A. 1982); United States v. Hobson, 672 F.2d 825, 826 (11th Cir. 1982); United States v. Caggiano, 660 F.2d 184, 189 (6th Cir. 1......
  • Request a trial to view additional results
7 cases
  • Panduit Corp. v. All States Plastic Mfg. Co., Inc., No. 84-569
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • September 25, 1984
    ...courts, has ruled that a grant of a motion to disqualify counsel is an immediately appealable decision. Ah Ju Steel Co. v. Armco, Inc., 680 F.2d 751, 753 (CCPA 1982). 8 This result has also been reached in the Seventh Circuit. See Freeman, supra. Accordingly, the order disqualifying counsel......
  • Freeman v. Chicago Musical Instrument Co., No. 82-1372
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 30, 1982
    ...Firestone. See, e.g., Greitzer & Locks v. Johns-Manville Corp., No. 81-1379 (4th Cir. Mar. 5, 1982); Ah Ju Steel Co., Ltd. v. Armco, Inc., 680 F.2d 751, 753 (C.C.P.A. 1982); United States v. Hobson, 672 F.2d 825, 826 (11th Cir. 1982); United States v. Caggiano, 660 F.2d 184, 189 (6th Cir. 1......
  • Zenith Electronics Corp. v. U.S., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • November 7, 1996
    ...by the Court of International Trade in other situations where it receives evidence. See Ah Ju Steel Co. v. Armco, Inc., 69 C.C.P.A. 161, 680 F.2d 751, 754 (1982) (reviewing decision to disqualify lawyer and law In 1982, the United States Court of Appeals for the Federal Circuit replaced the......
  • Gibbs v. Paluk, No. 84-1033
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 10, 1984
    ...1415, 1417 (D.C.Cir.1983); Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 718-21 (7th Cir.1982); Ah Ju Steel Co. v. Armco, Inc., 680 F.2d 751, 752-53 (C.C.P.A.1982); In re Coordinated Pre-Trial Proceedings in Petroleum Products Antitrust Litigation, 658 F.2d 1355, 1156-58 (9th Cir......
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