Motion to dismiss appeal from an order denying disqualification of counsel and petition for a writ of mandamus to review that order. Motion to dismiss appeal denied; petition for writ dismissed.
Kaufman, Chief Judge, and Moore, Friendly, Hays, Anderson, Feinberg, Mansfield, Mulligan, Oakes and Timbers, Circuit Judges.
This is a motion to dismiss an appeal from an order denying a motion to disqualify counsel. It originally came on to be heard before a panel consisting of the writer and Judges Friendly and Anderson. A member of the court then in regular active service having requested that the motion be considered en banc and all of the judges having voted in favor of such hearing, it has been so considered by all active judges and the members of the panel on the original briefs and record, without further oral argument.
The merits of the present controversy which relate solely to the appealability of Judge Weinstein's order denying Chrysler's motion to disqualify plaintiff's counsel in an action entitled Silver Chrysler Plymouth, Inc. against Chrysler Motors Corporation and Chrysler Realty Corporation, 73 Civ. 853, are not before us, 370 F. Supp. 581.
A young law clerk, Dale A. Schreiber, employed after graduation from law school by Kelly Drye Warren Clark Carr & Ellis (Kelley Drye) apparently worked for almost three years in the litigation department of that firm. One of the principal clients of the firm is the Chrysler Corporation. Schreiber was engaged in certain litigation matters for Chrysler, petitioner-appellant in this case. Schreiber left Kelley Drye to join Alexander Hammond and together they formed the firm of Hammond & Schreiber. Hammond (and the firm of Hammond & Schreiber) is alleged to specialize in prosecuting automobile dealers' claims against manufacturers, including Chrysler. The suit creating this controversy is a dealer suit against Chrysler in which Schreiber is representing the dealer. Chrysler's attorneys seek to disqualify Schreiber from acting as the attorney and to dismiss the complaint because of such representation. Judge Weinstein denied Chrysler's motion to disqualify.
The problem facing Chrysler's attorneys is: how can an appeal, if there be one, be taken at this stage of the litigation?
For years this appealability problem has plagued both counsel and the courts. The procedures followed by Chrysler, as petitioner-appellant, on this phase of the case, exemplify the current situation and uncertainty.
On August 27, 1973, Chrysler moved to disqualify and to enjoin plaintiff-dealer's attorneys, Hammond & Schreiber, from further participation in the case. By order, November 26, 1973, Judge Weinstein denied the motion.
On December 11, 1973, Chrysler sought to have Judge Weinstein amend his order to include a Section 1292(b) statement that an immediate appeal might materially advance the termination of the litigation.*fn1 This, by order of December 17, 1973, the Judge refused to do. Chrysler then filed its notice of direct appeal dated December 21, 1973.
Chrysler then turned to this Court for permission to appeal pursuant to 28 U.S.C. § 1292(b) and Rule 5, Fed. R.A.P. This motion was denied on January 10, 1974. Chrysler previously (January 3, 1974) had sought to stay District Court proceedings until the appeal should be determined. On January 15, 1974, the motion was granted.
On January 9, 1974, plaintiff-respondent-appellee moved to dismiss Chrysler's appeal and challenged the power of this Court to grant relief by way of mandamus. Apparently still uncertain as to how to reach this Court, Chrysler on January 23, 1974, filed its petition for an Extraordinary Writ pursuant to 28 U.S.C. § 1651 and Rule 21, Fed. R.A.P., directing Judge Weinstein to vacate his original order, to disqualify the law firm of Hammond & Schreiber, and to dismiss the complaint.
Thus, procedural uncertainties subsequent to denial of the motion have produced (1) a notice of appeal; (2) a motion in the District Court to amend the order to include a § 1292(b) statement; (3) a motion to this Court for permission to appeal; and (4) a petition for an Extraordinary Writ -- each except for the notice of appeal included the same repetitious statements of fact and law and each required time-consuming consideration by the courts.
By order of January 29, 1974, this Court joined the petition for a Writ and the motion to dismiss the appeal. The upshot of all these maneuverings is to bring before us the simple question and the necessity of resolving the ...