Appeals from the Superior Court of the District of Columbia; (Hon. Emmet G. Sullivan, Trial Judge in No. 89-1511); (Hon. Nan R. Huhn, Trial Judge in No. 90-433)
Before Rogers, Chief Judge, Ferren, Terry, Steadman, Schwelb, Farrell, and King, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Associate Judge Terry. Opinion by Associate Judge Schwelb, with whom Associate Judges Steadman and King join, Concurring in part, Dissenting in part, and Concurring in the judgment. Dissenting opinion by Senior Judge Gallagher.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge : These two cases, otherwise unrelated, present a common issue of law: whether an order in a civil case disqualifying counsel for a party is immediately appealable as a collateral order. After the cases were separately argued before different divisions of the court, we sua sponte ordered that they be consolidated for rehearing en banc on this single jurisdictional issue. We hold that the disqualification of an attorney is not immediately appealable but, like most trial court orders, must await the entry of final judgment on the merits before being subject to appellate review. In so holding, we overrule statements in prior cases to the contrary.
This is an appeal by appellant Madame Ngo Dinh Nhu from an order of the probate court disqualifying her attorney, Thomas Mauro, from further representing her in a will contest. Mr. Mauro was disqualified by the trial court because of an alleged conflict of interest arising from his concurrent representation of Madame Nhu and her brother, Tran Van Khiem, in the probate proceeding. Appellant now challenges the disqualification; the court-appointed guardian ad litem for Tran Van Khiem, a mental incompetent, and counsel for a third sibling, Le Chi Tran Oggeri, filed the motion to disqualify Mr. Mauro and now urge affirmance of the disqualification order.
Tran Van Khiem was arrested on July 24, 1986, and charged with the murder of his parents, the former Ambassador to the United States from Vietnam, Tran Van Chuong, and his wife, Nam Tran Than Tran Van Chuong. Mr. Mauro was appointed to represent Mr. Khiem in the criminal case. Khiem went to trial on the charges, but the court declared a mistrial when Khiem's conduct and the testimony of a doctor from Saint Elizabeths Hospital led to a finding that Khiem was no longer competent to stand trial. Mr. Khiem was later committed to Saint Elizabeths until he regained his competency. *fn1
Shortly after the arrest of Mr. Khiem, his sister, Dr. Le Chi Tran Oggeri, filed with the probate court copies of reciprocal wills which expressly disinherited Mr. Khiem and Madame Nhu and made Dr. Oggeri the sole beneficiary. Madame Nhu and Mr. Khiem contested the validity of the wills, the originals of which could not be located. Mr. Mauro represented both Mr. Khiem and Madame Nhu in the probate proceeding; on their behalf he argued that the parents had died intestate. *fn2
Dr. Oggeri also filed a civil action seeking to have Mr. Khiem declared criminally liable for the deaths of their parents. *fn3 The trial court, sensitive to the potential conflict of interest arising from Mr. Mauro's dual representation of Mr. Khiem and Madame Nhu, requested written waivers from both clients. In September 1987 Mr. Mauro ceased to represent Mr. Khiem in the criminal prosecution, but he remained as Mr. Khiem's counsel in the civil suit until August 1989, when he withdrew as Mr. Khiem's counsel in that case as well. Thereafter Mr. Mauro continued as Mr. Khiem's counsel only in the probate proceeding.
The probate court then appointed a guardian ad litem for Mr. Khiem and requested the guardian to submit a report on the potential conflict of interest created by Mr. Mauro's past representation of Mr. Khiem in the civil and criminal cases and his continued representation of both Mr. Khiem and Madame Nhu in the probate proceedings. The guardian concluded that the specific circumstances of the case gave rise to a potential conflict of interest, since Madame Nhu had a pecuniary incentive to establish Mr. Khiem's culpability for his parents' murder. The guardian also suggested that Mr. Mauro might have received confidences in both the criminal and probate matters which would be detrimental to Mr. Khiem's interests and helpful to Madame Nhu in future probate proceedings. Finally, the guardian ad litem asserted that Mr. Khiem, because of his deteriorated mental condition, could not validly waive the conflict of interest.
Mr. Mauro disagreed with the Conclusions of the guardian ad litem and therefore refused to withdraw as counsel for Mr. Khiem. After a hearing, however, the probate court ordered Mr. Mauro to withdraw as Khiem's counsel by a specified date, "absent the filing of an informed consent by the Guardian Ad Litem . . . to [Mauro's] continued legal representation of Madame Ngo Dinh Nhu . . . ." The guardian ad litem later reported that he was unable to file such an informed consent, and Madame Nhu noted this appeal. *fn4
This litigation arises from a dispute between appellants, homeowners Roland and Miriam Brown, and appellee First American Title Insurance Company. In the course of buying a home in Southeast Washington, the Browns obtained a title insurance policy from First American. After settlement, however, the Browns learned that they had not received a clear title to their home. First American retained its own counsel in order to fulfill its obligation, under the insurance policy, to clear the defects from the Browns' title. Soon thereafter First American's counsel notified the Browns not only that he represented First American's interests, but that First American's actions in pursuit of a clear title would necessarily be in the Browns' best interests as well.
Despite this assurance, the Browns soon concluded that First American was not doing all that it should be doing, so they retained an attorney of their own to ensure that their title would in fact be cleared. Both First American's and the Browns' counsel proceeded independently to perform essentially the same tasks in their efforts to remove the encumbrances from the title. This simultaneous activity led to some interaction between First American's and the Browns' counsel, mostly in the form of correspondence indicating how each felt the other was performing. Both attorneys were present at some of the same judicial proceedings regarding the claims against the Browns' title, and both were in contact with the encumbrance holders.
The Browns eventually brought this action against First American for allegedly failing to perform diligently its contractual duties under the title insurance policy. First American moved before trial to dismiss the Browns' attorney, Ronald Drake, alleging that he had become so involved in the efforts to clear the title that his appearance as a witness would be necessary to refute the Browns' claims of negligence. The motion asserted that the Browns' own complaint supported this Conclusion, for it implied that their attorney had contributed to the procedural delays by acting simultaneously with First American's counsel in pursuit of the same goals.
The trial court concluded that both the Browns' complaint and First American's motion demonstrated that Mr. Drake would be a witness in the trial. Accordingly, the court, in a brief order, granted the motion and disqualified Mr. Drake from "taking any part in the maintenance and trial of [the case]" and, in addition, from assisting subsequent counsel in any capacity as an attorney. The Browns noted the instant appeal from that order.
Under D.C. Code § 11-721 (a)(1) (1989), this court has jurisdiction to review all final orders and judgments of the Superior Court. An order is final only if it "disposes of the whole case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already rendered." McBryde v. Metropolitan Life Insurance Co., 221 A.2d 718, 720 (D.C. 1966). To be reviewable, "a judgment or decree must not only be final but also complete, that is, final not only as to all parties, but as to the whole subject matter and all the causes of action involved." District of Columbia v. Davis, 386 A.2d 1195, 1198 (D.C. 1978).
The orders disqualifying Mr. Mauro and Mr. Drake from participating further in these cases are obviously not "final orders," since both cases remain alive on the trial court docket and are a long way from being tried. The parties all agree that if the orders are appealable at all, the appeals must be brought within "a narrow but well-recognized exception to the rule against appeals from non-final orders" known as the collateral order doctrine. Stein v. United States, 532 A.2d 641, 643 (D.C. 1987), cert. denied, 485 U.S. 1010, 99 L. Ed. 2d 705, 108 S. Ct. 1477 (1988). That doctrine is a creature of the Supreme Court which this court, like many others, has chosen to adopt. It was first articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), when the Court identified a "small class" of orders
which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.
Id. at 546. As refined in later cases, the collateral order doctrine came to have three requirements, all of which must be met before an interlocutory order may be appealed. To be appealable under Cohen,
a trial court order must, at a minimum, meet three conditions. First, it "must conclusively determine the disputed question"; second, it must "resolve an important issue completely separate from the merits of the action"; third, it must "be effectively unreviewable on appeal from a final judgment."
Flanagan v. United States, 465 U.S. 259, 265, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984), quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978).
The question we must decide is whether an order disqualifying counsel in a civil case is immediately appealable under the Cohen collateral order doctrine. In answering this question, we are faced with a conflict between our own earlier statements and a more recent Supreme Court opinion on the subject. This court said in Urciolo v. Urciolo, 449 A.2d 287 (D.C. 1982), that an order disqualifying counsel from participating in an ongoing case "is appealable as a collateral order." Id. at 290 (footnote omitted). In Urciolo we echoed our earlier holding in American Archives' Counsel v. Bittenbender, 345 A.2d 487, 490 (D.C. 1975). In both Urciolo and Bittenbender we applied the three-part Cohen test and concluded that orders disqualifying counsel in civil cases are "'effectively unreviewable' on appeal from a final judgment." Urciolo, supra, 449 A.2d at 290; Bittenbender, supra, 345 A.2d at 490; see also Borden v. Borden 277 A.2d 89, 90 (D.C. 1971) (trial court order appointing counsel held to be appealable as a collateral order).
The Supreme Court has discussed the appealability of orders disqualifying counsel in several cases, most recently in a decision which we find more persuasive than our own earlier opinions to the contrary. In the first of these cases, Firestone Tire & Rubber Co. v Risjord, 449 U.S. 368, 377-378, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981), the Court held that the denial of a motion to disqualify an attorney in a civil case was not appealable as a collateral order because it was not "effectively unreviewable on appeal from a final judgment," the third of the three requirements for immediate appealability outlined in Coopers & Lybrand, supra. *fn5 Three years later, in Flanagan v. United States, supra, the Court decided a question left open in Firestone and held that an order disqualifying counsel in a criminal case did not meet either the second or the third requirement: i.e., it did ...