Gibbs v. Paluk, No. 84-1033

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore RUBIN, JOLLY, and DAVIS; ALVIN B. RUBIN; E. GRADY JOLLY
Citation742 F.2d 181
Decision Date10 September 1984
Docket NumberNo. 84-1033
PartiesPatt GIBBS and Tamara Utens, Plaintiffs-Appellees, v. Bruno PALUK, et al., Defendant, The Association of Professional Flight Attendants, Defendant-Appellant.

Page 181

742 F.2d 181
Patt GIBBS and Tamara Utens, Plaintiffs-Appellees,
v.
Bruno PALUK, et al., Defendant,
The Association of Professional Flight Attendants,
Defendant-Appellant.
No. 84-1033.
United States Court of Appeals,
Fifth Circuit.
Sept. 10, 1984.

Hicks, Gillespie, James & Lesser, James L. Hicks, Jr., Dallas, Tex., for defendant-appellant.

Gardere & Wynne, Ronald M. Gaswirth, Patrick J. Maher, Dallas, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Page 182

Before RUBIN, JOLLY, and DAVIS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Whether a district court order disqualifying counsel is immediately appealable is our first concern in considering this motion to stay proceedings pending appeal in a civil suit. The Supreme Court has held that an order disqualifying counsel in a criminal case is not final in effect and therefore not appealable. The analysis in that decision requires us to change our course in civil cases and to hold that we lack jurisdiction to entertain an interlocutory appeal. Accordingly, we deny the stay.

I.

Patt Gibbs and Tamara Utens are members of a union, the Association of Professional Flight Attendants (APFA). Gibbs had been the union president and Utens its secretary-treasurer. They sued the union challenging both its participation in another law suit and various other actions taken by the union's present officers and directors. The same lawyer filed two answers, one on behalf of APFA and the other on behalf of those of the defendant union officials who had not opposed its participation in the earlier suit. He also filed a motion seeking leave for the union to intervene in the counts brought against the individual defendants.

Gibbs and Utens countered with a motion to disqualify the lawyer. They contended that his real or apparent favor toward the union officials for whom he had appeared indicated his predisposition against the union faction who had filed this suit and interfered with his continued representation of the union. In addition, they argued that his dual representation created the risk of breach of confidentiality. The lawyer filed a motion seeking to withdraw from further representation of the individual defendants and an amended motion to limit the union's intervention attempt to those claims in the individual counts that concerned the union.

The district court held that, to avoid the appearance of impropriety, union counsel must avoid any form of direct affiliation with any union faction. Because he had failed to maintain such impartiality, the district court disqualified him from representing either the union or the individual defendants. The union alone appeals, seeking a stay of the order pending appeal.

II.

Until final judgment, the orders of a district court are not appealable. 1 Some judgments not final in form, however, are sufficiently final in effect to be immediately appealable. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). An order in a civil case denying a motion to disqualify counsel does not satisfy the finality requisites of Cohen, and hence is not appealable. Firestone Tire and Rubber Co. v. Risjord. 2 In Firestone, however, the Court reserved the question whether orders granting motions to disqualify counsel in either civil or criminal cases are immediately appealable. 3

The Supreme Court recently answered one of the reserved questions. In Flanagan v. United States, 4 the Court unanimously held that a disqualification order in a criminal case was not appealable until after final judgment in the case. The facts did not raise and the opinion did not discuss the issue of the immediate appealability of a disqualification order in a civil matter. Thus, the Court has not yet expressly ruled on the issue presented here.

Between Firestone and Flanagan, we held in three cases that such an order in a

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civil case is appealable as soon as it is entered. 5 A number of other circuit courts have reached the same conclusion. 6

The pages of the Federal Reporters already contain thorough discussion of whether disqualification orders should be treated differently in criminal than in civil cases. It would be pedantic again to recite those pros and cons; for the result in this case is determined by application of the analysis announced by the Supreme Court in Flanagan, an analysis that appears equally applicable to criminal and civil cases.

The requirements of the collateral order exception to the finality rule, as articulated by the Court in Coopers & Lybrand, are that: (1) the order "must conclusively determine the disputed question"; (2) it must "resolve an important issue completely separate from the merits of the action"; and (3) it must "be effectively unreviewable on appeal from a final judgment." 7 These requirements are conjunctive: failure of any one results in failure of jurisdiction.

Only the Ninth Circuit had, before Flanagan, distinguished between civil and criminal cases, basing its decision on analysis of the third element, eventual reviewability. In United States v. Greger, 8 it held that disqualification orders in criminal cases are effectively reviewable on appeal because the presumption of prejudice, which is unavailable in civil cases, relieves the criminal defendant of the "almost insurmountable burden" of proving that the case was lost for want of chosen counsel. 9 In Flanagan, however, the Court stated "the second Coopers & Lybrand condition--that the order be truly collateral--is not satisfied if petitioners' asserted right [to counsel of their choice] is one requiring prejudice to the defense for its violation." 10 The Court continued, "a disqualification order, though final, is not independent of the issue to be tried" because "[i]ts validity cannot be adequately reviewed until trial is complete .... The effect of the disqualification on the defense, and hence whether the asserted right has been violated, cannot fairly be assessed until the substance of the prosecution's and defendant's cases is known." 11

Before Flanagan, the lower courts had regarded disqualification orders in civil cases as presenting considerations that did not require them to become "enmeshed in the factual and legal issues comprising [the litigant's] cause of action." 12 They did not consider disqualification orders "of such a nature as to permit fair assessment only after trial...." 13 And no court had held that the second Coopers & Lybrand element was not satisfied in either criminal or civil cases.

Two circuits have examined the impact of Flanagan on the immediate appealability of orders disqualifying counsel. In two

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post-Flanagan decisions, the Second Circuit observed first that the Supreme Court's opinion cast doubt on the immediate appealability of...

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39 practice notes
  • Henry v. City of Detroit Manpower Dept., Nos. 81-1767
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 22, 1985
    ...S.Ct. 290, 83 L.Ed.2d 226 (1984); Interco Systems, Inc. v. Omni Corporate Services, 733 F.2d 253 (2d Cir.1984). But see Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984). The court has permitted the application of Cohen within a criminal context on only three occasions: Stack v. Boyle, 342 U.S. 1......
  • Kleiner v. First Nat. Bank of Atlanta, No. 83-8794
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 31, 1985
    ...(D.C.Cir.) (interlocutory appeal available), cert. granted, --- U.S. ----, 105 S.Ct. 2980, 83 L.Ed.2d 226 (1984). But see Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984). We simply follow the rule in this circuit that a premature appeal can be reviewed if a subsequent judgment of the district c......
  • Robbins v. Maggio, Nos. 83-3240
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 14, 1985
    ...themselves more readily to consideration apart from the merits of the litigation than such orders in criminal cases." Gibbs v. Paluk, 742 F.2d 181, 186 (5th Cir.1984). The Court felt constrained by Flanagan to find that the second Coopers & Lybrand element was not satisfied because a disqua......
  • Ghidoni v. Stone Oak, Inc., No. 04-94-00837-CV
    • United States
    • Court of Appeals of Texas
    • January 28, 1998
    ...In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1346 (5th Cir. Unit A 1981), overruled on other grounds, Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984). So that if parts of the present action and the past representation concern the very same subject matter, reasonable minds must ag......
  • Request a trial to view additional results
39 cases
  • Henry v. City of Detroit Manpower Dept., Nos. 81-1767
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 22, 1985
    ...S.Ct. 290, 83 L.Ed.2d 226 (1984); Interco Systems, Inc. v. Omni Corporate Services, 733 F.2d 253 (2d Cir.1984). But see Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984). The court has permitted the application of Cohen within a criminal context on only three occasions: Stack v. Boyle, 342 U.S. 1......
  • Kleiner v. First Nat. Bank of Atlanta, No. 83-8794
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 31, 1985
    ...(D.C.Cir.) (interlocutory appeal available), cert. granted, --- U.S. ----, 105 S.Ct. 2980, 83 L.Ed.2d 226 (1984). But see Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984). We simply follow the rule in this circuit that a premature appeal can be reviewed if a subsequent judgment of the district c......
  • Robbins v. Maggio, Nos. 83-3240
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 14, 1985
    ...themselves more readily to consideration apart from the merits of the litigation than such orders in criminal cases." Gibbs v. Paluk, 742 F.2d 181, 186 (5th Cir.1984). The Court felt constrained by Flanagan to find that the second Coopers & Lybrand element was not satisfied because......
  • Ghidoni v. Stone Oak, Inc., No. 04-94-00837-CV
    • United States
    • Court of Appeals of Texas
    • January 28, 1998
    ...In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1346 (5th Cir. Unit A 1981), overruled on other grounds, Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984). So that if parts of the present action and the past representation concern the very same subject matter, reasonable minds must ag......
  • Request a trial to view additional results

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