Herron v. Jones

• Decision Date: 12 July 1982
• Docket Number: No. 82-41,82-41
• Parties: Jerry M. HERRON, Appellant, v. James JONES, III, et al., Appellees.
• Court: Arkansas Supreme Court

Page 569

637 S.W.2d 569

276 Ark. 493

Jerry M. HERRON, Appellant, v. James JONES, III, et al., Appellees.

No. 82-41.

Supreme Court of Arkansas.

July 12, 1982.

Bailey, Williams, Westfall, Lee & Fowler by James A. Williams, Dallas, Tex., and Friday, Eldredge & Clark by J. Phillip Malcom, Little Rock, for appellant.

Henry & Duckett by David P. Henry and James M. Duckett, Little Rock, for appellees.

GEORGE ROSE SMITH, Justice.

This medical malpractice suit was brought by the appellees, the surviving husband and minor children of Shirley L. Jones, whose death is alleged to have been caused by the negligence of the appellant, a physician. In December, 1981, the suit had been pending for 16 months, all discovery had been completed, and the case was set for a four-day trial in February. On December 16 the plaintiffs' attorneys, Henry & Duckett, filed a motion asking that all defense counsel--the firm of Friday, Eldredge & Clark, Phillip Malcom (the member of the Friday firm handling the case), and a Texas law firm acting as co-counsel--be disqualified from further participation in the case because Pat Brown Damon, a legal secretary who had worked for Henry & Duckett for eleven months, had become a secretary for the Friday firm, and particularly for Malcom, in November, 1981. The motion for disqualification asserted that Canons 4 and 9 of the Code of Professional Responsibility, 33 Ark.L.Rev. 643 (1980), would be violated by the lawyers' continued participation in the case.

The trial judge, relying primarily on State of Arkansas v. Dean Foods Products Co., 605 F.2d 380 (8th Cir. 1979), ruled that defense counsel were all disqualified from proceeding further in the case, not because there was any actual impropriety but because there was a violation of Canon 9: "A Lawyer Should Avoid Even the Appearance of Professional Impropriety." The case comes to this court for an interpretation of our Code of Professional Responsibility. Rule 29(1)(c).

Preliminarily, we must pass upon the appellees' motion to dismiss the appeal on the ground that an order disqualifying counsel is not a final order within Rule 2 of the Rules of Appellate Procedure. It is certainly not final in the sense that the case is still to be tried on its merits, but the appellant argues that we should treat the disqualifying order as falling within an exception recognized in federal procedure, by which an order is appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

Even though orders disqualifying counsel are a comparatively recent development in the law, the appealability of such orders has already given the federal courts much difficulty. At first it was held in some circuits that all rulings on motions to disqualify counsel were final and appealable, whether the motion was granted or denied. In at least three circuits, however, the courts of appeal have overruled prior cases in reaching what is now the prevailing position: An order denying a motion to disqualify counsel is not appealable, although an order granting such a motion is appealable. Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980); Melamed v. ITT Continental Baking Co., 592 F.2d 290 (6th Cir. 1979); Firestone Tire & Rubber Co. v. Risjord, 612 F.2d 377 (8th Cir. 1980). The Supreme Court settled the issue by affirming, in effect, the Firestone case. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), vacating the intermediate court's order for want of jurisdiction, but recognizing its correctness.

In harmony with the federal courts' conclusions, we have no doubt that an order disqualifying counsel should be appealable. This is true not only because a litigant may be erroneously deprived of representation by the counsel of his choice, but also because if the order of disqualification is not appealable the litigant will be compelled to employ other counsel and to submit to a useless trial before he learns by appeal that the disqualification order was wrong and he is entitled to start all over again.

We are fortunate, however, in not being bound, as the federal courts are, by a statute restricting appellate review to final orders. 28 U.S.C. § 1291. When our Rules of Appellate Procedure were drafted and adopted in 1978, there was no immediate necessity for...