Flanagan v. United States

In early December 1981, following a hearing and briefing on the Government’s motion, the District Court disqualified the law firm from participation in the case. The court found that no actual conflict of interest had yet developed but that there was a clear potential for conflict. Most notably, the severance motion and supporting papers showed that petitioner Flanagan’s interests were likely to diverge from the other petitioners’ interests. The District Court also found that petitioners had voluntarily, knowingly, and intelligently waived their right to conflict-free representation. The court concluded, however, that it had the authority and, indeed, the obligation under Rule 44(c) to disqualify counsel when “the likelihood is great that a potential conflict may escalate into an actual conflict.” 527 F. Supp. 902 , 909 (ED Pa. 1981). The court presumed that Sprague and Rubenstone had obtained privileged information from each of the petitioners and therefore disqualified the law firm from representing any of them.

Petitioners appealed to the United States Court of Appeals for the Third Circuit, which affirmed the decision of the District Court in June 1982. 679 F. 2d 1072 . Although jurisdiction was not challenged, the Court of Appeals noted that it had jurisdiction under 28 U. S. C. §1291 because the disqualification order was appealable prior to trial as a collateral order within the meaning of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). The court went on to hold that the disqualification order was proper because an actual conflict of interest was very likely to arise. In July 1982 the court denied rehearing but stayed issuance of the mandate to permit filing of a petition for a writ of certiorari in this Court.

Petitioners filed their petition in September 1982, one year after the grand jury had returned the indictment against them. They contended that disqualification of counsel of their choice after they had knowingly waived conflict-free representation deprived them of their Sixth Amendment right to assistance of counsel and of their Fifth Amendment

appellate-court interference with the numerous decisions they must make in the prejudgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice. Firestone Tire & Rubber Co. v. Risjord, supra, at 374 . For these reasons, “[t]his Court has long held that the policy of Congress embodied in [§ 1291] is inimical to piecemeal appellate review of trial court decisions which do not terminate the litigation . . . .” United States v. Hollywood Motor Car Co., 458 U. S. 263 , 265 (1982).

The Court has also long held that “this policy is at its strongest in the field of criminal law.” Ibid. More than 40 years ago the Court noted that the reasons for the final judgment rule are “especially compelling in the administration of criminal justice.” Cobbledick v. United States, supra, at 325. Promptness in bringing a criminal case to trial has become increasingly important as crime has increased, court dockets have swelled, and detention facilities have become overcrowded.

As the Sixth Amendment’s guarantee of a speedy trial indicates, the accused may have a strong interest in speedy resolution of the charges against him. In addition, “there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Barker v. Wingo, 407 U. S. 514 , 519 (1972). As time passes, the prosecution’s ability to meet its burden of proof may greatly diminish: evidence and witnesses may disappear, and testimony becomes more easily impeachable as the events recounted become more remote. Delay increases the cost of pretrial detention and extends “the period during which defendants released on bail may commit other crimes.” United States v. MacDonald, 435 U. S. 850 , 862 (1978). Delay between arrest and punishment prolongs public anxiety over community safety if a person accused of a serious crime is free on bail. It may also adversely affect the prospects for rehabilitation. See Barker v. Wingo, supra, at

requirements. See United States v. Hollywood Motor Car Co., 458 U. S., at 265 . Each type involves ‘“an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’” Id., at 266 (quoting United States v. MacDonald, supra, at 860 ).

An order denying a motion to reduce bail may be reviewed before trial. The issue is finally resolved and is independent of the issues to be tried, and the order becomes moot if review awaits conviction and sentence. Stack v. Boyle, 342 U. S. 1 (1951). Orders denying motions to dismiss an indictment on double jeopardy or speech or debate grounds are likewise immediately appealable. Such orders finally resolve issues that are separate from guilt or innocence, and appellate review must occur before trial to be fully effective. The right guaranteed by the Double Jeopardy Clause is more than the right not to be convicted in a second prosecution for an offense: it is the right not to be “placed in jeopardy” — that is, not to be tried for the offense. Abney v. United States, 431 U. S. 651 (1977). Similarly, the right guaranteed by the Speech or Debate Clause is more than the right not to be convicted for certain legislative activities: it is the right not to “be questioned” about them — that is, not to be tried for them. Helstoski v. Meanor, 442 U. S. 500 (1979). Refusals to dismiss an indictment for violation of the Double Jeopardy Clause or of the Speech or Debate Clause, like denials of bail reduction, are truly final and collateral, and the asserted rights in all three cases would be irretrievably lost if review were postponed until trial is completed.

An order disqualifying counsel lacks the critical characteristics that make orders denying bail reduction or refusing to dismiss on double jeopardy or speech or debate grounds immediately appealable. Unlike a request for bail reduction, a constitutional objection to counsel’s disqualification is in no danger of becoming moot upon conviction and sentence. Moreover, it cannot be said that the right petitioners assert, whether based on the Due Process Clause of the Fifth

the Sixth Amendment right to represent oneself. See Faretta v. California, 422 U. S. 806 (1975). Obtaining reversal for violation of such a right does not require a showing of prejudice to the defense, since the right reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding. See McKaskle v. Wiggins, ante, at 177-178, n. 8. Similarly, postconviction review is concededly effective to the extent that petitioners’ asserted right is like the Sixth Amendment rights violated when a trial court denies appointment of counsel altogether, see Gideon v. Wainwright, 372 U. S. 335 (1963), or denies counsel’s request to be replaced because of a conflict of interest, see Holloway v. Arkansas, 435 U. S. 475 (1978). No showing of prejudice need be made to obtain reversal in these circumstances because prejudice to the defense is presumed. In sum, as petitioners concede, if establishing a violation of their asserted right requires no showing of prejudice to their defense, a pretrial order violating the right does not meet the third condition for coverage by the collateral-order exception: it is not “effectively unreviewable on appeal from a final judgment.” See supra, at 265.

If, on the other hand, petitioners’ asserted right is one that is not violated absent some specifically demonstrated prejudice to the defense, a disqualification order still falls outside the coverage of the collateral-order exception. We need not consider, however, whether the third Coopers & Lybrand condition is satisfied — that is, whether postconviction review is plainly ineffective. It is sufficient to note that the second Coopers & Lybrand condition — that the order be truly collateral — is not satisfied if petitioners’ asserted right is one requiring prejudice to the defense for its violation.

On this assumption, a disqualification order, though final, is not independent of the issues to be tried. Its validity cannot be adequately reviewed until trial is complete. The effect of the disqualification on the defense, and hence whether the asserted right has been violated, cannot be fairly as

sessed until the substance of the prosecution’s and defendant’s cases is known. In this respect the right claimed by petitioners is analogous to the speedy trial right. In United States v. MacDonald, supra, at 859, 860 , the Court concluded that because impairment of the defense is an important factor in judging whether a speedy trial violation has occurred, a denial of a motion to dismiss on speedy trial grounds is not separable from the issues at trial. The same conclusion applies to a disqualification order if prejudice to the defense is a necessary element of petitioners’ claim. In these circumstances, the second Coopers & Lybrand condition for immediate appealability as a collateral order is not satisfied: the disqualification order does not resolve an “issue completely separate from the merits of the action.” See supra, at 265.

In short, whether or not petitioners’ claim requires a showing of prejudice, a disqualification order does not qualify as an immediately appealable collateral order in a straightforward application of the necessary conditions laid down in prior cases. Further, petitioners’ claim does not justify expanding the small class of criminal case orders covered by the collateral-order exception to the final judgment rule — either by eliminating any of the Coopers & Lybrand conditions or by interpreting them less strictly than the Court’s cases have done. The costs of such expansion are great, and the potential rewards are small.

Unlike an appeal of a bail decision, see Stack v. Boyle, 342 U. S., at 12 (opinion of Jackson, J.), an appeal of a disqualification order interrupts the trial. In criminal cases such interruption exacts a presumptively prohibitive price. See supra, at 264-265. Moreover, an appellate court’s reversal of a disqualification order would not result in dismissal of the prosecution. The prosecution would continue, though only after long delay. The potential rewards of an immediate appeal are thus even smaller than they were in United States v. MacDonald, supra, and in United States v. Hollywood Motor

Car Co., supra, where the Court rejected claims of immediate appealability for orders denying motions to dismiss on speedy trial and vindictive prosecution grounds even though reversal of the orders would have led to dismissal of all or some charges. See also Roche v. Evaporated Milk Assn., 319 U. S. 21 (1943) (no pretrial review of order denying motion to dismiss indictment for lack of jurisdiction); Heike v. United States, 217 U. S. 423 , 430-431 (1910) (no pretrial review of order rejecting claim of statutory immunity from prosecution). Here, a delayed trial is a certain result of interlocutory appellate review. Allowing immediate appeal of a disqualification order thus would severely undermine the policies behind the final judgment rule.

Ill

“ ‘[T]he final judgment rule is the dominant rule in federal appellate practice.’ 6 Moore, Federal Practice (2d ed. 1953), 113. Particularly is this true of criminal prosecutions.” DiBella v. United States, 369 U. S. 121 , 126 (1962). Nothing about a disqualification order distinguishes it from the run of pretrial judicial decisions that affect the rights of criminal defendants yet must await completion of trial court proceedings for review. Such an order fails to satisfy the stringent conditions for qualification as an immediately appealable collateral order, and the overriding policies against interlocutory review in criminal cases apply in full. The exceptions to the final judgment rule in criminal cases are rare. An order disqualifying counsel is not one.

The judgment of the Court of Appeals is accordingly reversed. On remand the appeal should be dismissed.

It is so ordered.