Russell v. Mercy Hosp.

Decision Date13 December 1984
Docket NumberNo. 84-646,84-646
Citation15 OBR 136,472 N.E.2d 695,15 Ohio St.3d 37
Parties, 15 O.B.R. 136 RUSSELL, a Minor, et al., Appellants, v. MERCY HOSPITAL, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

The granting of a motion to disqualify counsel in a civil action is a final, appealable order pursuant to R.C. 2505.02. (Bernbaum v. Silverstein, 62 Ohio St.2d 445, 406 N.E.2d 532 , distinguished.)

This action is before this court upon dismissal of an appeal from the granting of a motion to disqualify Martin W. Williams as counsel for appellants, Dale Joseph Russell, a minor and his parents, Robert and Mary Frances Russell. The facts of this case are not in dispute.

In July 1976, the claim which forms the basis of this negligence action 1 was referred to Martin W. Williams, a member of the law firm of Goldberg, Williams, Jilek & Lafferty 2 (hereinafter "the Williams firm"). Early in the litigation, Williams supplied a medical expert report to Thomas J. Manahan, a member of the law firm of Manahan, Pietrykowski, Bamman & Mohr 3 (hereinafter "the Manahan firm"), counsel for Mercy Hospital, appellee herein.

Thereafter, on March 11, 1982, copies of articles relating to the medication administered to Dale Russell were supplied to David M. Mohr, a member of the Manahan law firm. The record indicates that Mohr made telephone calls and wrote letters with regard to the case. Mohr testified his recollection of the case was minimal.

Mohr left his employment with the Manahan firm. On September 13, 1982, Mohr associated with the Williams law firm.

On May 6, 1983, appellee moved to disqualify counsel for the appellants. This motion was submitted on briefs, affidavits and an in camera review of the defense file by the trial judge. On October 18, 1983, an order disqualifying Williams and his law firm was entered.

A notice of appeal was filed by appellants on November 17, 1983. Upon appellee's motion, the court of appeals dismissed the appeal, citing the decision in Bernbaum v. Silverstein (1980), 62 Ohio St.2d 445, 406 N.E.2d 532 , as support.

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Williams, Jilek & Lafferty Co., L.P.A., Martin W. Williams, Toledo, O'Brien & Bauer Co., L.P.A., and Bernard K. Bauer, Findlay, for appellants.

Manahan, Pietrykowski & Bamman and H. William Bamman, Toledo, for appellee.

WILLIAM B. BROWN, Justice.

The sole issue presented is whether the granting of a motion to disqualify counsel in a civil case is a final appealable order within the meaning of R.C. 2505.02. This court, after careful consideration holds that in the civil context, the grant of a motion to disqualify counsel is distinguishable from the denial of a motion to disqualify counsel and constitutes a final appealable order under R.C. 2505.02.

In pertinent part, R.C. 2505.02 defines a final order as "* * * an order affecting a substantial right made in a special proceeding * * *."

R.C. 2505.02 thus sets forth a two-part test. This court, in Bernbaum v. Silverstein (1980), 62 Ohio St.2d 445, 446, 406 N.E.2d 532 , while holding that the overruling of a motion to disqualify counsel was not a final appealable order, nonetheless acknowledged that such a motion affects a substantial right. 4 This court can perceive of no situation where the rights affected would be any less substantial in the granting of a motion to disqualify counsel than in the denial of a motion to disqualify counsel. Accordingly, upon the authority of Bernbaum, this court finds that an order to disqualify counsel affects a substantial right. Thus, the first prong of the test set forth in R.C. 2505.02 is sufficed.

Resolution of whether an order disqualifying counsel in a civil case is appealable will thus depend on whether the second prong of the test is fulfilled, i.e., whether such order was made in a special proceeding. This court, in Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253, 423 N.E.2d 452 , first noted that modern courts have been less than precise in defining "special proceeding," and then held at 258 that "* * * whether an order is made in a special proceeding is resolved through a balancing test * * * [which] weighs the harm to the 'prompt and orderly disposition of litigation,' and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after judgment is not practicable." Accord Banc Ohio Natl. Bank v. Rubicon Cadillac, Inc. (1984), 11 Ohio St.3d 32, 462 N.E.2d 1379.

In Bernbaum, supra, this court applied a similar test and concluded that an order denying disqualification of counsel is not final and appealable. The issue thus becomes whether there are significant differences between orders denying and granting disqualification with regard to use of judicial resources and practicability of appeal so as to warrant differing results with regard to their immediate appealability.

In Bernbaum, this court found that the claimed prejudice in denying a motion to disqualify counsel is effectively reviewable after final judgment, reasoning that any damage is no more curable by an immediate appeal. An order granting disqualification, however, cannot be effectively reviewed after final judgment. The appellate court's power to vacate the judgment appealed from and order a new trial would seldom provide any solace to the party erroneously deprived of chosen counsel. If an order granting disqualification is erroneous, correcting it by an appeal at the end of the case would require a party to show that the handling of his case by one counsel caused him prejudice, i.e., caused a difference in result. This would appear to be an "insurmountable burden." 5

In many cases it would not be possible to make the necessary judgment based on any objective standards. A trial lawyer's ability to persuade a jury to return the largest possible verdict may have been one of the key factors in the client's original selection and hiring decision. The courts would have to decide whether and how the original counsel might have handled the matter differently, i.e., taken more or less discovery, called more or fewer witnesses, asked or refrained from asking particular questions, introduced or refrained from introducing particular evidence, raised different objections, adopted different trial strategies, made other or more persuasive arguments to the jury, and what the effect on the verdict might have been. A court would have a most difficult time attempting to determine by any objective test whether that lawyer's particular skills would have caused a jury to award greater damages than it returned after listening to a different attorney whom the client did not originally wish to retain. The argument in most cases would quickly degenerate into speculation and hindsight.

One court noted most aptly as follows:

"Most able lawyers, given a chance to review the results of their initial efforts, could discover ways in which they might have improved on their performance. Armed with knowledge of the judge's and jury's reactions to his handling of the various difficult questions presented by the trial of a lawsuit, any respectable counsel could easily develop better techniques or approaches for dealing with them than he could without that knowledge. More important, almost any attorney, knowing the outcome of all the twists and turns of a hotly litigated matter, could tell anyone interested how he would have tried the case and won it had he been the trial lawyer rather than someone less talented or creative. Yet, if appeals are delayed until after trial, courts would be required to deal with precisely that sort of post hoc rationalization in every case. The tales and explanations of how original counsel could have won the case, had he been permitted to try it, would be legion and most would be at least superficially plausible. From a practical standpoint, courts would have no way of determining whether the original counsel would have acted as he says, after the fact, that he would. Even assuming the best of faith on the part of original counsel, it would be difficult for him to put the events which occurred at the trial out of mind when following a verdict his client wishes to reject, he is compelled to tell the court how he would have handled the matter differently." 6

The question of what constitutes prejudice would also prove unusually troublesome. If a court somehow concluded that the attorney originally selected might have obtained a higher verdict for a plaintiff or a lower verdict for a defendant, and found the extent of that difference as a result, how much higher or lower would that verdict have to be before sufficient prejudice would attach to warrant reversal? In short, in civil cases the courts would be plunged into a morass of speculation were review of the propriety of the granting of a motion to disqualify counsel delayed until after the trial had occurred.

The harm caused by postponing review of an order granting disqualification of counsel would in most instances be irreparable. In contrast to a motion denying disqualification, a motion so granting is necessarily more conclusive. Its effects are immediate and measurable. It has irreparable and unreviewable consequences for the individual who hired the disqualified counsel as well as for disqualified counsel. 7

When a motion for disqualification is granted, a legitimate interest of a party is necessarily implicated--the right to counsel of one's choice. The converse is not necessarily true. It would indeed be difficult, if not impossible, for a new attorney to master "the nuances of the legal and factual matters" late in the litigation of a complex case. Comment, The Availability of the Work Product of a Disqualified Attorney: What Standard? (1979), 127 U.Pa.L.Rev. 1607, 1608-1609, fn. 12. See, e.g., Central...

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