Cord v. Smith
| Decision Date | 04 November 1964 |
| Docket Number | No. 19416.,19416. |
| Citation | 338 F.2d 516 |
| Parties | E. L. CORD, etc., Appellant, v. Calvin J. SMITH, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
Milo V. Olson, William K. Woodburn, Los Angeles, Cal., Edward D. Neuhoff, San Marino, Cal., for appellant.
Lyndol L. Young, Los Angeles, Cal., for appellee.
Before CHAMBERS, BARNES and DUNIWAY, Circuit Judges.
Appellant Cord, the defendant in the trial court, appeals from the denial of a motion by which he sought, in substance, to disqualify Lyndol L. Young, attorney for plaintiff appellee Smith, from acting as Smith's attorney in the case. Jurisdiction of the action is based upon diversity of citizenship. The complaint alleges that Cord is indebted to Smith for money had and received in the sum of $3,000,000.00, and charges fraud, malice and oppression, asking exemplary damages in an additional sum of $3,000,000.00. Cord answered, denying the material allegations of the complaint and alleging certain separate defenses.
Thereafter, Cord's deposition was commenced. It appeared from certain questions asked him that the claim stated in the complaint rests upon an agreement claimed to have been made between Cord and Smith sometime between 1932 and 1934, whereby Smith was to have managed certain radio stations then owned by a corporation of which Cord was the sole or principal stockholder, and any profit realized upon a sale of the stations was to be divided equally between Cord and Smith. It is claimed that the stations were sold in 1962, but that Cord did not honor the agreement. It further appears that the contract is claimed to have been made by Young, acting for Cord. When these facts appeared, Cord's counsel instructed Cord not to answer further questions on the ground that at the time of the transaction Young was Cord's attorney. Young then moved for an order holding Cord in contempt. Young had also served subpoenas duces tecum upon Cord.
Cord then filed the motion that gives rise to this appeal.1 A hearing was held upon this motion, action upon the other matters being deferred. At the hearing, testimony and exhibits were received, the matter was argued and memoranda were filed by counsel. The court denied the motion, and Cord appealed. He also applied to one of the judges of this court for a stay. This was not granted because counsel agreed that no further action would be taken in the trial court until the motion for a stay could be presented to a panel of this court. Smith then filed a reply to the moving papers and a motion to dismiss the appeal on the ground that the order denying Cord's motion is not appealable. In response, while contending that the order is appealable, Cord also requested permission to file a petition for an appropriate writ in the event that we should be of the opinion that the order is not appealable.
At the hearing before this court, there was a further informal understanding with counsel that no further proceedings would be had in the trial court while the matter was pending before this court. Consequently, we did not issue the requested stay. We did agree to hear the matter on the merits, treating the appeal as being also a petition for any appropriate writ. The matter was heard on the merits on September 9, 1964. Because of the pendency of the proceedings here, the trial court had set over all matters pending there until September 21.
While the matter was under submission, and on September 14, Young advised the Chief Judge of this court by telephone that he proposed to withdraw as attorney for Smith in the trial court, and he sent the Chief Judge a telegram which is set out in the margin.2 Upon our instruction, the clerk sent a copy of this telegram to counsel for Cord, asking for his comments. He replied under date of September 17, urging that such withdrawal would not render Cord's appeal or petition moot. This was followed by a telegram from Young to Cord's counsel, stating that on September 21, in the trial court, he would withdraw as attorney for Smith and would withdraw all pending motions and subpoenas. He also sent a telegram to the clerk of this court, requesting that Cord's attorney be advised that he should attend the hearing before the trial judge on September 21. We did not do so. (See footnote 2, supra.) Cord's counsel did not appear, on the theory that he had agreed with this court to take no further action in the trial court while the matter was under submission.
Young appeared, withdrew his motion to have Cord held in contempt, withdrew the subpoenas that had been issued, and withdrew a motion that he had made for attorney's fees in connection with a motion that had been filed by Cord's counsel for a protective order under Rule 30(b) F.R.Civ.P. He then asked the court for a trial date and the court set the matter down for trial on November 4, 1964. The following then occurred:
Thereafter, Young filed a motion to dismiss the proceedings here as moot. The motion is opposed.3 In view of the foregoing we have ordered all further proceedings in the trial court stayed until this court acts.
There are thus before us the following matters:
1. Are the proceedings moot? We think not. Young is still continuing to act as attorney for Smith in this matter in this court. If he is disqualified in the court below he is equally disqualified here. Moreover, while Young has withdrawn as counsel of record in the court below, there is nothing to prevent his acting as Smith's attorney by way of consultation and advice outside the court. If he is disqualified, he should not be permitted to do so. There is also the possibility that he will later seek to appear again as Smith's attorney of record. If he does, the trial court may permit him to do so, having held that he is not disqualified. Young's attitude, both in the trial court and here, was not benign. It gives us little confidence that his withdrawal is complete for practical purposes, even though he is no longer counsel of record in the district court. Under these circumstances, we conclude that the matter is not moot.4
2. Is the order appealable? We think not. It is true that the motion made in the trial court requests an order which appears on its face to be in the nature of an injunction, and the order of denial might be considered appealable under 28 U.S.C. § 1292(a). (Cf. Harmar Drive-In Theatre v. Warner Bros. Pictures, 2 Cir., 1956, 239 F.2d 555) The principal relief sought, however, is a ruling that Young is disqualified. In Fleischer v. Phillips, 2 Cir., 1959, 264 F.2d 515, it was held, Judge Moore dissenting, that an order denying a similar motion was not an appealable order. The court refused to follow Harmar. In Marco v. Dulles, 2 Cir., 1959, 268 F.2d 192, the court followed the Fleischer case, Judge Moore again dissenting. See also Willheim v. Murchison, 2 Cir., 1963, 312 F.2d 399. It was pointed out in those cases that no order under 28 U.S.C. § 1292(b) had been made. That is equally true here. We think that, particularly since the adoption of section 1292(b) the order is not appealable. It involves the supervisory power of the federal courts over attorneys appearing before them, rather than an injunction in the sense in which the term is used in section 1292(a). Of course, the principal purpose of section 1292(b) is to permit appeals, with the concurrence of the trial court and of the court of appeals, from interlocutory orders not appealable under section 1292(a). But the existence of this method of appeal also removes any incentive to enlarge by a liberal construction, the class of orders appealable under section 1292(a).
3. May we treat the matter as a petition for a writ? We have held that where a party attempts to appeal from an unappealable order, and the circumstances justify our doing so, we can, in our discretion, treat the proceedings as a petition under the All Writs Act, 28 U.S.C. § 1651. Hartley Pen Company v. United States District Court, 9 Cir., 1961, 287 F.2d 324; Olympic Refining Co. v. Carter, 9 Cir., 1964, 332 F.2d 260, 263-264. We think that we should exercise our discretion to so treat the matter in this case. Continued participation as an attorney, by one who is disqualified by conflict of interest from so doing, will bring about the very evil which the rule against his participation is designed to prevent, and a subsequent reversal based upon such participation cannot undo the damage that will...
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