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Galloway v. Ozzieclay

November 10, 2004


Appeals from the Superior Court of the District of Columbia. (CA-1249-03). Hon. Neal E. Kravitz, Motions Judge.

Before Schwelb and Glickman, Associate Judges, and Newman, Senior Judge.

The opinion of the court was delivered by: Glickman, Associate Judge

Concurring opinion by Senior Judge NEWMAN at p. 11.

The issue before us is whether we have jurisdiction to entertain an interlocutory appeal of an order denying an attorney's motion to withdraw from representing a party in an ongoing proceeding in Superior Court. We hold that the order denying leave to withdraw falls within the collateral order doctrine and therefore is immediately appealable under D.C. Code § 11-721 (a)(1) (2001). Accordingly, we decline to dismiss the instant appeal.


Appellant Johnny R. Galloway is the attorney of record for the plaintiffs, Ozzie Clay and two of his corporations, in their legal malpractice action against defendant-appellees Leibner & Potkin, P.C., and one of its partners. The action is in its pretrial stages; a court-ordered mediation conference is set to take place on November 23, 2004.

On April 22, 2004, Galloway moved for leave to withdraw as counsel, asserting that the plaintiffs had not paid him for his services and had impeded him from properly pursuing the action on their behalf. Galloway represented that the plaintiffs consented to his withdrawal. The defendants opposed the motion, however.

Observing that Galloway knew he had a "potentially difficult client" when he accepted the representation,*fn1 the trial court denied his request in an order docketed on May 17, 2004. The court explained that Galloway's withdrawal "would almost certainly result in a further delay of the litigation, particularly in light of the requirement that corporations be represented by counsel, see Super. Ct. Civ. R. 101 (a)(2), and the Court sees no reason why the defendants should be forced to bear the burden of that delay."

Galloway then filed a second motion to withdraw in which he asserted that a recent federal indictment of plaintiff Ozzie Clay had expanded the scope of the representation beyond the terms of his original engagement and to the point that he was no longer competent to handle the lawsuit. The trial court denied this second motion on July 26, 2004, noting that Clay's criminal defense counsel could provide whatever assistance Galloway needed to protect his client's Fifth Amendment rights in the civil case.

Galloway filed a timely notice of appeal from each of the trial court's orders.*fn2 On July 20, 2004, we issued an order directing Galloway to show cause why his appeal should not be dismissed for lack of jurisdiction, as having been taken from an interlocutory order in an ongoing proceeding. Galloway has responded to that directive with a motion for leave to appeal in which he invokes the collateral order doctrine. The defendant-appellees have filed an opposition disputing the applicability of that doctrine, to which Galloway has filed a reply. The issue is now joined and ready for us to decide.


With immaterial exceptions, our jurisdiction over appeals from the Superior Court is confined by statute to the review of "final" orders and judgments. D.C. Code § 11-721 (a)(1);

Rolinski v. Lewis, 828 A.2d 739, 745 (D.C. 2003) (en banc). "Normally, an order or judgment is deemed to be 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.'" Id. at 745-46 (quoting In re Estate of Chuong, 623 A.2d 1154, 1157 (D.C. 1993) (en banc)). The requirement that the trial court proceeding be concluded in its entirety before an appeal may be taken "serves the important policy goals of preventing the 'unnecessary delays resultant from piecemeal appeals' and 'refrain[ing] from deciding issues which may eventually be mooted by the final judgment.'" Rolinski, 828 A.2d at 745 (quoting Crown Oil & Wax Co. v. Safeco Ins. Co., 429 A.2d 1376, 1379 (D.C. 1981)). The requirement discourages "the harassment and cost of a succession of separate [interlocutory] appeals" and fosters "efficient judicial administration." Rolinski, 828 A.2d at 745 n.8 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981) (internal quotation marks and citations omitted)).

"Some trial court rulings that do not conclude the litigation nonetheless are sufficiently conclusive in other respects that they satisfy the finality requirement of our jurisdictional statute." Rolinski, 828 A.2d at 746. Rulings that satisfy the requirements of the so-called "collateral order doctrine," which the Supreme Court first articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, (1949) "are immediately appealable to this court even though they do not terminate the action in the trial court . . . . Otherwise such orders would be ...

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