LOCATION: San Francisco Scrap Metals, Inc.
DOCKET NO.: 84-127
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 472 US 424 (1985)
ARGUED: Feb 26, 1985
DECIDED: Jun 17, 1985
Lawrence E. Walsh - on behalf of the Petitioner
Michael H. Gottesman - on behalf of the Respondents
Facts of the case
Media for Richardson-Merrell Inc. v. Koller
Audio Transcription for Oral Argument - February 26, 1985 in Richardson-Merrell Inc. v. Koller
Warren E. Burger:
We will hear arguments next in Richardson-Merrell against Koller.
Mr. Walsh, I think you may proceed when you are ready now.
Lawrence E. Walsh:
Thank you, Mr. Chief Justice.
Mr. Chief Justice, and may it please the Court:
We are here on certiorari to review a judgment of the Court of Appeals for the District of Columbia Circuit.
It reversed an order disqualifying two Los Angeles lawyers for misconduct.
The first lawyer, Mr. Butler, was disqualified on a finding that after a pre-trial... after a series of pre-trial orders holding certain material inadmissible because of its unfair, prejudicial nature, and after the venire for the jury with which this case was going to be tried had reported to the courthouse, he released this material, this very material and nothing else, to a single correspondent for publication in Washington's leading newspaper.
The District Court found that he did this with an intent to circumvent its orders and to prejudice the Defendant.
Allis was disqualified on a finding that he procured a statement from a crucial witness into an investigation of fraud on the court with an intent to thwart that investigation.
These findings were coupled by a third principal finding of the District Court; that the removal of these two lawyers would not leave the Plaintiffs unrepresentative or ineffectively represented.
Two of the remaining six lawyers are leaders in the Bendectin litigation and thy third is Mr. Jacob Stein, a former president of the Bar Association of this District and a bar leader by any definition who lead the Washington back-up team for these Plaintiffs.
One further point before I come to the question of appealability and that is that the removal of these lawyers occurred not during the trial but at a pre-trial phase where there would have been any adjustment necessary to permit the remaining counsel to absorb the full load of the case.
We would like first to go to the question of appealability.
At the time the appeal was taken to the Court of Appeals, Flanagan against the United States had not been decided by this Court.
It was decided a year ago and it held that disqualification of counsel orders in criminal cases are not appealable prior to final judgment.
There are two halves to the opinion as it was written.
The first half sets out very strongly the urgency in criminal cases, but the second half measures disqualification orders against the standards of Cohen and Coopers and Lybrand and concludes that by their nature they cannot qualify with the second and third tests of the trilogy established by those two cases.
Without going to the question of whether a disqualification order is conclusive assuming that it is for the purpose of this case as the Court did in Flanagan.
It leaves the question is the order entirely separate from the underlying case or not and this Court held that if a showing of prejudice in addition to error is needed.
It is not entirely separate because the prejudice would require and examination of the trial record.
On the other hand, if an order is reversible without a showing of prejudice the third test is not met and it is effectively reviewable after judgment.
So, it seemed as soon as this came down that the logic projected into civil cases as well as criminal and a special brief was filed to point that out to the Court of Appeals.
It, however, disagreed with our position and attempted to distinguish this Court's holding in Flanagan and suggest a different rule for civil cases.
Its first point... Incidentally, its discussion of this begins on 20A of the Appendix to the Petition and the distinction begins on 29A.
Its first point was that if in a civil case as distinguished from a criminal case to reverse a judgment it would be necessary to show that the error was prejudicial and that to show prejudice after trial in a civil case would be extremely difficult and would, according to the Court, would resolve itself into competing speculations as to whether Lawyer No. 1 would have tried the case differently from Lawyer No. 2.
In doing this it went back to holdings of Courts of Appeals prior to Flanagan and it in attempting to show why it would be more difficult to reach a decision as to prejudice after final judgment in a civil case rather than a criminal case.
It suggested that in criminal cases there is experience with minimum standards of effective representation and that that type of... that same question had not been coming up in civil cases.
It did not explain why that was so esoteric that the learning in the criminal side couldn't be adapted to the civil side.
And, we respectfully suggest that it exaggerates the difficulty of reviewing for prejudice after judgment, that it would not turn on a speculative, retrospective comparison, it would turn on whether the Plaintiffs were able to get lawyers of a comparable standing with those they lost.
The holdings of this Court prior to Flanagan have made clear that effectively unreviewable doesn't mean just reviewable with difficulty.