Bushkin Associates, Inc., In re

• Decision Date: 01 November 1988
• Docket Number: No. 88-1812,88-1812
• Citation: 864 F.2d 241
• Parties: In re BUSHKIN ASSOCIATES, INC., and Merle J. Bushkin, Petitioners. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 241

864 F.2d 241

In re BUSHKIN ASSOCIATES, INC., and Merle J. Bushkin, Petitioners.

No. 88-1812.

United States Court of Appeals First Circuit.

Heard Nov. 1, 1988.

Decided Jan. 4, 1989.

Nancy Gertner with whom David J. Fine, Silverglate, Gertner, Fine & Good, Boston, Mass., Warren Asher and Jonathan Handel, were on Petition for Writ of Mandamus.

Max Stern, Harry C. Mezer, P.C. and Judith H. Mizner, Boston, Mass., on brief, for Nat. Network for the Right to Counsel, amicus curiae.

Thomas C. Frongillo with whom Edward I. Masterman, Mary E. O'Neal and Cargill, Masterman & Culbert, Boston, Mass., were on brief, for respondent Raytheon Co.

Before BOWNES, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Merle J. Bushkin and Bushkin Associates, Inc. petition for mandamus, seeking to convince us to overturn a ruling of the United States District Court for the District of Massachusetts disqualifying their counsel in a pending civil action. We are not persuaded.

I. SETTING THE STAGE

Petitioners are investment bankers. In 1981, they sued Raytheon Co. in federal district court for compensation allegedly owed. The case was tried in late 1985. After plaintiffs rested, Judge Skinner directed a verdict against them. Before court adjourned, plaintiffs' trial counsel asked for leave to question the jurors about their impressions of the evidence. Although defendant's lawyers did not object, the jurors themselves indicated a preference not to answer questions. No inquiry was allowed.

Undaunted by adversity, plaintiffs jettisoned their trial counsel and retained the firm of Silverglate, Gertner, Fine & Good (SGF & G). The effort proved successful; on appeal, we judged the evidence sufficient to reach the jury. Bushkin Associates, Inc. v. Raytheon Co., 815 F.2d 142, 145-51 (1st Cir.1987). The case was thereafter assigned, in the usual course, to a new trier (Harrington, J.). Both sides girded for resumption of the battle.

In June 1988, during settlement negotiations, Raytheon's lawyers learned that attorneys from SGF & G had surreptitiously conducted telephone interviews with four members of the original venire (two jurors, two alternates). The activity was undertaken unilaterally; no advance permission was sought from the court and no contemporaneous disclosure was made to opposing counsel. Defendant claimed misconduct and moved to dismiss the case or in the alternative to disqualify SGF & G from further participation. Its motion was premised on the theory that such ex parte contact with erstwhile jurors transgressed the prophylactic rule set forth in United States v. Kepreos, 759 F.2d 961, 967-68 &amp n. 5 (1st Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 227, 88 L.Ed.2d 227 (1985).

The district court agreed that counsel's tactics were proscribed by Kepreos and entered a disqualification order. Bushkin Associates, Inc. v. Raytheon Co., 121 F.R.D. 5, 8 (D.Mass.1988). The judge opined:

While recognizing the burden which this decision imposes, the Court is also aware of its obligation to establish limits on the unbridled interviewing of jurors.... Attorneys [from SGF & G] violated this prohibition [of Kepreos ] at their peril and must bear the consequences....

...Disqualification from representing plaintiffs in this case is a fitting remedy, as it interdicts the attorneys' utilization in the second trial of any information gleaned as a result of their exploitation of the jurors' thought processes.

Id. Stripped of the legal representation of their choice, plaintiffs now seek to employ the All Writs Act, 28 U.S.C. Sec. 1651(a) (1982), to reverse what they consider a wrongheaded, or at the least too procrustean, decision.

II. DISCUSSION ANENT THE PETITION

The Supreme Court has expressly forbidden interlocutory appeals of disqualification orders. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440, 105 S.Ct. 2757, 2765, 86 L.Ed.2d 340 (1985) (disqualification orders in civil cases not subject to immediate appeal under 28 U.S.C. Sec. 1291); Flanagan v. United States, 465 U.S. 259, 270, 104 S.Ct. 1051, 1057, 79 L.Ed.2d 288 (1984) (disqualification orders in criminal cases fail to satisfy conditions for interim appealability); cf. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377, 101 S.Ct. 669, 675, 66 L.Ed.2d 571 (1981) (order refusing to disqualify counsel in civil action reviewable on appeal after final judgment). While these opinions do not bar mandamus challenges to disqualification orders in so many words, their import is clear. The common strands which weave their way through the Koller/Flanagan/Risjord trilogy strongly suggest that, in the great majority of instances, mandamus would be utterly inappropriate. We explicate briefly.

"Mandamus entreaties are generally subject to a pair of prophylactic rules, which together require that a petitioner show (a) some special risk of irreparable harm, and (b) clear entitlement to the relief requested." In re Recticel Foam Corp., 859 F.2d 1000, 1005 (1st Cir.1988) (footnote omitted); see generally In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 20 (1st Cir.1982); Acton Corp. v. Borden, Inc., 670 F.2d 377, 382 (1st Cir.1982). Given the Supreme Court's formulation of the appealability equation, disqualification orders plainly do not meet the first of these requirements, and the particular removal order which the present plaintiffs protest meets neither criterion. Nor is there any supervening public importance sufficient to bring "advisory mandamus" into play.

A. Special Risk of Irreparable Harm.

It is hornbook law that a party who yearns for the nectar of mandamus must be unable otherwise to slake his thirst. Mandamus will not lie if a suitor possesses "other adequate means to attain the relief he desires...." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam); see also Recticel, 859 F.2d at 1005 (same; quoting Allied Chemical and collecting cases); United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir.1979) (mandamus appropriate only when petitioner "has no adequate remedy by appeal"). Since most interlocutory orders are fully reviewable on direct appeal after final judgment, litigants have ready alternate means of obtaining relief from such orders, absent exceptional circumstances. For this reason, resort to the writ will "rarely, if ever" be justified. Allied Chemical, 449 U.S. at 36, 101 S.Ct. at 190. To obtain early review via mandamus, the party "attack[ing] such an order must ordinarily demonstrate that something about the order, or its circumstances, would make an end-of-case appeal ineffectual or leave legitimate interests unduly at risk." Recticel, 859 F.2d at 1005-06.

Plaintiffs' demonstration, we think, falls well shy of this rigorous mark. They tell us that, unless the disqualification order is vacated now, disposition of their case--which has already been much delayed--will be prorogued yet again whilst they shop for successor counsel and familiarize him or her with the voluminous record. Plaintiffs also cite the extra expense which such a course of action would entail. Though we are not unsympathetic with petitioners' plight, these factors do not mount up to the "special risk of irreparable harm," id. at 1005, which the caselaw demands.

The Supreme Court has clearly pointed the way, stating that: "Nothing about a disqualification order distinguishes it from the run of pretrial judicial decisions that affect the rights of [litigants] yet must await completion of trial court proceedings for review." Flanagan, 465 U.S. at 270, 104 S.Ct. at 1051. Because a disqualification order "will rarely, if ever, represent a final rejection of a claim of fundamental right that cannot effectively be reviewed following judgment on the merits," the remedy of vacating the final judgment and remanding for a new trial "seems plainly adequate should petitioner's concerns of possible injury ultimately prove well-founded." Risjord, 449 U.S. at 377-78, 101 S.Ct. at 675. Therefore, disqualification orders "can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal." Koller, 472 U.S. at 438, 105 S.Ct. at 2765.

In Koller, the Justices explicitly considered and rejected claims of prejudice akin to those voiced here. While conceding that enforced changes of counsel inevitably cause delay, the Koller Court blunted the thrust of that circumstance, observing that delay also "inherently accompanies time-consuming interlocutory appeals." Id. at 434, 105 S.Ct. at 2762. Noting that "[m]ost pretrial orders of district judges are ultimately affirmed by appellate courts," Justice O'Connor concluded: "We do not think that the delay resulting from the occasionally erroneous disqualification outweighs the delay that would result from allowing piecemeal appeal of every order disqualifying counsel." Id. Put another way, "the possibility that a [disqualification] ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress." Id. at 436, 105 S.Ct. at 2764.

In light of the Court's conclusion that appellate oversight of disqualification orders can satisfactorily be performed in the ordinary course of appeal from final judgment, we would be hard-pressed to find some cognizable risk of irreparable harm in this case. Indeed, bearing in mind the Court's pronouncements anent the efficacy of an end-of-case appeal in this type of situation, and its holding that the incremental delay-cum-expense resulting from disqualification is insufficient to justify intermediate review, we would make a mockery of the Koller/Flanagan/Risjord trilogy were we to rule that the very same sort of injuries, when alleged by these plaintiffs, are irremediable after final judgment. ¹ Respect for the clearly-expressed views of the Court leaves us no principled alternative but to hold that petitioners have failed to show...