A trial court order disqualifying an attorney from representing a client in a case is typically an “interlocutory” order (that is, an order entered prior to final judgment). When, if ever, are such disqualifying orders immediately appealable in Georgia?
On Wednesday, the Georgia Court of Appeals issued its decision in Fein v. Chenault, A14A0925, dismissing the appeal filed by an attorney and his client from the trial court’s order restricting the attorney’s involvement in a personal injury case. The Court of Appeals had no jurisdiction to address the appeal. The trial court had not certified the order for immediate review, so there was no OCGA § 5-6-34(b) appellate jurisdiction. None of the direct appeal categories listed in OCGA § 5-6-34(a) applied, and the Court of Appeals concluded that there were no other grounds for an immediate appeal, such as the collateral order doctrine.
As the Fein decision noted, cases in the Court of Appeals uniformly hold that interlocutory attorney disqualification orders are not immediately appealable (absent certification). Slip op. at 14. The appellants in Fein based their argument instead on Stevens v. Thomas, 257 Ga. 645, 647 (1987), where the Georgia Supreme Court held that an appeal of a disqualification order was untimely because “[t]he disqualification was to take place instanter and was thus immediately appealable.” But in another case decided the same term as Stevens, the Georgia Supreme Court stated that a disqualifying order “was an interlocutory order” over which “the appellate court does not acquire jurisdiction unless the procedure of OCGA 5-6-34(b) for interlocutory appeal is followed.” Cherry v. Coast House, Ltd., 257 Ga. 403, 404 (1987). In Fein, the Court of Appeals determined it need not reach the question of whether the order at issue was appealable under Stevens, because the order did not actually disqualify Fein, but only restricted his involvement in the case. Slip op. at 14-15.
The two Court of Appeals decisions to consider in depth the tension between Cherry and Stevens each chose to follow Cherry. See Settendown Pub. Util., LLC v. Waterscape Util., LLC, 324 Ga. App. 652 (2013); Lassiter Props., Inc. v. Davidson Mineral Props., Inc., 230 Ga. App. 216 (1998). They reasoned that the statement from Stevens was unsupported by citation or analysis and did not acknowledge Cherry.
There is a distinction between Stevens and Cherry that the Court of Appeals has mentioned but perhaps not fully explored. Disqualification in Stevens was a sanction for violation of the rules of professional conduct. Stevens, 257 Ga. at 647. The cause for disqualification in Cherry, on the other hand, was conflict of interest: the attorney was also a party in the case and a likely witness. Cherry, 257 Ga. at 405. It could be argued that disqualifications as a sanction should be immediately appealable (even without an immediate review certificate), while disqualifications for other reasons should not. Unless the courts revisit the issue, however, interlocutory attorney disqualification orders are not generally immediately reviewable without following the OCGA § 5-6-34(b) certification procedures.
There is potentially another way to secure immediate review of a disqualification order, but it involves risks. Contempt orders are immediately appealable as direct appeals pursuant to OCGA § 5-6-34(a)(2). (Note that contempt orders are different from sanctions orders, which are not generally directly appealable. See American Med. Sec. Group, Inc. v. Parker, 284 Ga. 102 (2008).) An attorney subject to a disqualification order could refuse to obey the order. If the trial court then held the attorney in contempt, the attorney could then personally pursue a direct, immediate appeal. A similar strategy is sometimes used to obtain immediate appellate review of discovery orders. Obviously, this strategy should be used only after careful consideration (and I could not immediately find an example of it having been used in Georgia). Among other downsides, there is no guarantee that the trial court would enter a contempt order (as opposed to a not-immediately-appealable sanctions order), the contempt might not be reversed on appeal, and the method of disobeying the disqualification order would need to be chosen carefully to avoid prejudice to the underlying case.