Friday, April 25, 2008

Exhibit "A": Zappala, Justice, dissenting (1)

ZAPPALA files a dissenting opinion in which FLAHERTY, C.J., joins.

ZAPPALA, Justice, dissenting.

I disagree with the majority’s conclusion that an order disqualifying counsel is not immediately appealable. A defendant’s right to his chosen attorney is too important to be denied immediate review, and the defendant will be irreparably banned if a disqualification order cannot be appealed until after trial.

The majority concludes that a disqualification order does not satisfy the requirements of the collateral order exception to the general rule that only final orders are appealable. In doing so, the majority endorses the reasoning of Flanagan v. United States, 465 U.S. 259, 104 S.Ct 1051, 79 LEd.2d 288 (1984), rejects the rationale of the Superior Court’s decision in Commonwealth v. Cassidy, 390 Pa.Super. 359, 568 A.2d 693 (1989), and likens a disqualification order to rulings that are not immediately appealable, such as rulings on motions to suppress evidence.

In Flanagan, the U.S. Supreme Court held that a trial judge’s order disqualifying a criminal defendint’s counsel did not satisfy the requirements of the collateral order exception and therefore was not immediately appealable. I note that prior to Flanagan, a majority of federal appellate courts held disqualification orders to be immediately appealable. In United States v. Garcia, 517 F.2d 272, 275 (5th Cir.1975), the court explained that such orders were “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.” (emphasis added). The court also concluded that “deferral of review until after completion of the trial would dissipate judicial resources and possibly jeopardize the defendants' case by prohibiting representation at trial by counsel of their choice.” Garcia, at 275.

In United States v. Phillips, 699 F.2d 798, 802 (6th Cir.1983), the court reasoned that “[t]o require a defendant in a criminal case to stand trial and risk conviction while deprived of the services of his chosen counsel without an opportunity to test the legality of the order of disqualification is fundamentally unfair.”(emphasis added). The Phillips court went on to conclude that “[a] defendant erroneously deprived of the fundamental constitutional right to counsel of his choice should not be required to endure the rigors of trial and obloquy of conviction before establishing that error has been committed.” Phillips, at 802.

In addition, the Second, Third, Fourth, Eighth and Eleventh Circuits all considered disqualification orders immediately appealable prior to Flanagan. See United States v. Curcio, 694 F.2d 14 (2d Cir.1982) (disqualification order is immediately appealable under collateral order doctrine); US; v. Flanagan, 679 F.2d 1072, 1073 n. 1 (3d Cir.1982), rev’d, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (disqualification order is a collateral order and therefore appealable); U.S. v. Smith, 653 F.2d 126 (4th Cir.1981) entertaining appeal of pre-trial disqualification order without discussion of appealability issue); U.S. v. Agosto, 675 F.2d 965, 968 n. 1 (8th Cir.1982), cert. den. after remand and affirmance sub. nom. Gustafson v. U.S., 459 U.S. 834, 103 S.Ct. 77, 74 LEd.2d 74 (1982) (disqualification order is final order under collateral order doctrine); U.S. v. Hobson, 672 F.2d 825 826 (11th Cir.1982) (using conclusory language that disqualification orders are immediately appealable).

Because Flanagan resolved an issue of federal appellate procedure, not constitutional law, we are not bound to follow it. I would hold, as the majority of federal appellate courts held prior to Flanagan, that disqualification orders are immediately appealable. The right to counsel is of exceptional and unusual importance, for it is that right which opens the door to all of a defendant’s other rights.


1. In speaking of a defendant's right to counsel of choice, I refer to a defendant's right not to be stripped of the attorney he or she has chosen, or of an attorney that has become the defendant's counsel on appointment by the court. I do not imply that the right to counsel is absolute or suggest that a defendant has an unfettered right to be represented by any attorney he or she may request.