APPEALABILITY OF DISQUALIFICATION
Following is a brief review of whether an order granting or denying a motion to disqualify counsel is appealable. The next paragraph deals with federal courts, where the situation is fairly clear. The paragraph after that deals with state courts, where the differences from state-to-state can be significant. In connection with state courts, we have not attempted a state-by-state review, but rather have gathered representative decisions to illustrate the various ways the states differ.
Federal Courts. Orders granting or denying motions to disqualify under 28 U.S.C. § 1291 are not appealable. Richardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (order granting motion to disqualify); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (order denying motion to disqualify). In In re Lewis, 212 F.3d 980 (7th Cir. 2000), the trial judge had granted a motion to disqualify. The losing parties filed a petition for mandamus in the appellate court, as a way to circumvent the holding in Richardson-Merrell. The court denied mandamus, saying that the damages the plaintiffs may suffer as a result of the disqualification are not the kind that mandamus was intended to remedy. The court noted that the Supreme Court in Richardson-Merrell said in footnote 13 that mandamus could be appropriate, but that such a case would require "exceptional circumstances." In Lewis C. Nelson & Sons, Inc. v. United States Dist. Ct., 2006 U.S. App. LEXIS 16978 (9th Cir. July 6, 2006), the Ninth Circuit considered on the merits a petition for writ of mandamus from an order denying a motion to disqualify (but denied the petition). For an earlier case in which the court granted mandamus after a firm was disqualified, see In re Sandahl, 980 F.2d 1118 (7th Cir. 1992). For a disqualified lawyer's lame attempt to distinguish Richardson-Merrell, see Hammond v. City of Junction City, 2003 U.S. App. LEXIS 25862 (10th Cir. Dec. 19, 2003). In DeFazio v. Wallis, 500 F. Supp. 2d 197 (E.D.N.Y. 2007), the court held that a disqualification order is not subject to FRCP Rule 60 relief.
In Cardona v. General Motors, 939 F. Supp. 351 (D.N.J. 1996), the court denied a request to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The opinion contains an excellent discussion of how that section relates to motions to disqualify. And, in DeVittorio v. Hall, 2008 U.S. Dist. LEXIS 6595 (S.D.N.Y. Jan. 29, 2008), the court held that an order denying disqualification on a simple substantial relationship issue does not qualify for § 1292(b) treatment.
State Courts. Again, the following list of cases does not purport to be exhaustive review of past decisions. It is representative only. As we learn of new decisions - as well as older ones - we will add them. In Re AmSouth Bank, N.A., 589 So. 2d 715 (Ala. 1991) (court allowed mandamus); Meehan v. Hopps, 288 P.2d 267 (Cal. 1955) (denial of motion is appealable); Reed v. Superior Court, 111 Cal. Rptr. 2d 842 (Cal. App. 2001) (appeal of denial of motion does not stay proceedings below automatically); Vivitar Corp. v. Broidy, 192 Cal. Rptr. 281 (Cal. App. 1983) (granting of motion is appealable); Burger & Burger, Inc. v. Murren, 522 A.2d 812 (Conn. 1987) (neither order granting, nor order denying, motion to disqualify appealable); Acierno v. Hayward, 859 A.2d 617 (Del. 2004) (order granting disqualification not appealable as of right; certification procedure available); Gottlieb v. State of Delaware, 697 A.2d 400 (Del. 1997) (revocation of pro hac vice status not appealable); Cerillo v. Highley, 797 So. 2d 1288 (Fla. App. 2001) (certiorari appropriate remedy for wrongful disqualification); Cutter Motor Cars, Inc. v. Ayabe, 2007 Haw. LEXIS 135 (Haw. April 27, 2007) (to get mandamus from denial, harm must be "irreparable and immediate"); Astel v. Lindsay, 2005 Haw. LEXIS 246 (Haw. May 9, 2005) (order denying motion to disqualify not appealable as of right); Mitsui Norin Co., Ltd. v. Kakaako M-P Development, 2004 Haw. LEXIS 305 (Haw. April 29, 2004); Alakea Corp. v. Kochi, 2001 Haw. LEXIS 398 (Haw. 2001) (order of disqualification reviewable via mandamus); In Re Estate of Anna v. French (Musgrave v. French), 651 N.E.2d 1125 (Ill. 1995) (disqualification order not appealable); Flores Rentals, L.L.C. v. Flores, 153 P.3d 523 (Kan. 2007) (not in a lawyer/witness situation); NTS Properties IV v. Hon. Olga Peers, 1986 Ky. App. LEXIS 1093 (Ky. App. 1986) (order of disqualification not appealable, but mandamus proceeding is appropriate - denied in this case); Casco Northern Bank v. JBI Associates, Ltd., 667 A.2d 856 (Me. 1995) (disqualification immediately appealable); Harris v. Harris, 529 A.2d 356 (Md. 1987) (order granting motion to disqualify not appealable); Peat & Co. v. Los Angeles Rams, 394 A.2d 801 (Md. 1978) (order denying motion to disqualify not appealable); Maddocks v. Ricker, 531 N.E.2d 583 (Mass. 1988) (appealability is determined on a case-by-case basis); Castillo v. El-Amin, 105 S.W.3d 859 (Mo. App. 2003) (order denying motion to disqualify is not appealable if no other part of the case has been decided); Trainum v. Sutherland Associates, LLC., 263 Neb. 778 (2002) (order denying motion to disqualify not directly appealable; mandamus the appropriate remedy); Richardson v. Griffiths, 560 N.W.2d 430 (Neb. 1997) (order disqualifying immediately appealable); Henery v. 9th St. Apt., L.L.C., 2001 Neb. App. LEXIS 117 (Neb. App. 2001) (follows Richardson); Kala v. Aluminum Smelting & Refining Co., Inc., 688 N.E.2d 258 (Ohio 1998) (order disqualifying counsel is a final appealable order); Othman v. Heritage Mut. Ins. Co., 814 N.E.2d 1261 (Ohio App. 2004) (order denying disqualification not immediately appealable); Lemmo v. House of Larose Cleveland, Inc., 2003 Ohio 4346 (Ohio App. 2003) (order denying motion appealable upon showing of irreparable harm); Martinez v. Yoho's Fast Food Equip., 2000 Ohio App. LEXIS 5946 (Ohio App. December 19, 2000) (order denying motion to admit pro hac vice is appealable); Goldston v. American Motors Corp., 392 S.E.2d 735 (N.C. 1990) (disqualification appealable); Ferguson v. DDP Pharmacy, Inc., 621 S.E.2d 323 (N.C. App. 2005) (same as Ferguson); Piette v. Bradley & Leseberg, 930 P.2d 183 (Okla. 1996) (disqualification appealable); Vaccone v. Branella, 899 A.2d 1103 (Pa. 2006) (order disqualifying in civil case not appealable); Karch v. Karch, 879 A.2d 1272 (Pa. Super. 2005) (not unless disqualification is "collateral to underlying issue in case, following Bramlett); Vertical Resources, Inc. v. Bramlett, 837 A.2d 1193 (Pa. Super. 2003); Hilton v. Crawford, 1991 Tenn. App. LEXIS 964 (Tenn. App. 1991) (order disqualifying counsel appealable); Nat. Med. Enterprises, Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996) (mandamus appropriate to review order denying disqualification); In re Chonody, 49 S.W.3d 376 (Tex. App. 2000) (mandamus appropriate to review order disqualifying counsel); and Est. of Janecek, 610 N.W.2d 638 (Minn. 2000) (order granting motion to disqualify appealable); State of West Virginia ex rel. Blackhawk Enterprises, Inc. v. Bloom, 633 S.E.2d 278 (W. Va. 2006) (denial of motion appealable via request for writ of prohibition).
Even Denial of Injunction not Appealable. DHR International, Inc. v. Winston and Strawn, 807 N.E.2d 1094 (Ill. App. 2004). Winston and Strawn (“Winston”) was representing a claimant against DHR in an AAA arbitration in New York City. DHR brought this case to enjoin Winston from handling that arbitration, claiming that someone from Winston had earlier represented DHR. The trial court denied DHR’s motion for preliminary injunction, so DHR brought this appeal, relying on Illinois Supreme Court Rule 307(a)(1). That rule permits appeals as of right from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” The appellate court dismissed the appeal because it had no jurisdiction. The court reasoned that an order denying an injunction based upon an alleged conflict of interest is tantamount to an order denying a motion to disqualify, which, in Illinois is not appealable as of right. Evidently, neither the trial court nor the appellate court questioned the propriety of a suit to enjoin the conflict.
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Freivogel on Conflicts