BUCKNER-WEBB v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: September 20, 2022
S21G1281. BUCKNER-WEBB et al. v. THE STATE
LAGRUA, Justice.
We granted certiorari in this case to determine whether a trial
court’s order denying a motion to withdraw as counsel based on
alleged conflicts of interest is immediately appealable under the
collateral order doctrine. For the reasons that follow, we conclude
that such orders do not fall within “the very small class” of trial court
orders that are appealable under that doctrine, Duke v. State, 306
Ga. 171, 172 (1) (829 SE2d 348) (2019), and thus we affirm the Court
of Appeals’ decision in Buckner-Webb v. State, 360 Ga. App. 329 (861
SE2d 181) (2021), albeit for different reasons.
I. Pertinent Facts and Procedural History
In March 2013, Diane Buckner-Webb, Theresia Copeland,
Sharon Davis-Williams, Tabeeka Jordan, Michael Pitts, and Shani
Robinson (collectively, “Defendants”) were indicted by a Fulton
County grand jury, along with 35 other educators and
administrators of the Atlanta Public Schools (“APS”), for conspiracy
to violate the Georgia Racketeer Influenced and Corrupt
Organizations (“RICO”) Act, OCGA § 16-14-1 et seq., and other
crimes, arising out of their alleged participation in a conspiracy to
alter students’ standardized test scores. Of the 35 indicted, 12 APS
employees, including Defendants, were tried together between
August 2014 and April 2015. In April 2015, the jury found
Defendants and five others guilty of at least one count of conspiracy
to violate the RICO Act.
In April and May 2015, Defendants filed timely motions for
new trial through their respective trial attorneys. The trial
transcripts were filed into the record between June 2015 and
October 2016. Thereafter, despite the fact that each Defendant was
2
represented by a separate attorney at trial, the Circuit Public
Defender appointed only one attorney, Stephen R. Scarborough, to
jointly represent Defendants as appellate counsel, and he formally
entered an appearance on Defendants’ behalf on April 26, 2017.
The trial court held a status hearing on Defendants’ motions
for new trial in December 2018. Following the status hearing,
Defendants were given six months to file particularized motions for
new trial, and the State was given six months to respond.
On June 28, 2019, more than two years after Scarborough’s
appointment as appellate counsel for Defendants and around the
time Defendants’ particularized motions for new trial were due for
filing, Scarborough filed a “Motion for Rule 1.7[1] Determinations” to
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1 Rule 1.7 of the Georgia Rules of Professional Conduct (“GRPC”) found
in Bar Rule 4-102 provides:
(a) A lawyer shall not represent or continue to represent a client if
there is a significant risk that the lawyer’s own interests or the
lawyer’s duties to another client, a former client, or a third person
will materially and adversely affect the representation of the
client, except as permitted in (b).
(b) If client informed consent is permissible a lawyer may
represent a client notwithstanding a significant risk of material
and adverse effect if each affected client or former client gives
3
address alleged conflicts of interest arising from his joint
representation of Defendants. Scarborough also filed a motion to
withdraw as counsel based upon this conflict of interest. The trial
court heard the motion to withdraw on August 8, 2019.2
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informed consent, confirmed in writing, to the representation
after:
(1) consultation with the lawyer, pursuant to Rule 1.0 (c);
(2) having received in writing reasonable and adequate
information about the material risks of and reasonable
available alternatives to the representation; and
(3) having been given the opportunity to consult with
independent counsel.
(c) Client informed consent is not permissible if the representation:
(1) is prohibited by law or these Rules;
(2) includes the assertion of a claim by one client against
another client represented by the lawyer in the same or
substantially related proceeding; or
(3) involves circumstances rendering it reasonably unlikely
that the lawyer will be able to provide adequate
representation to one or more of the affected clients.
(d) Though otherwise subject to the provisions of this Rule, a part-
time prosecutor who engages in the private practice of law may
represent a private client adverse to the state or other political
subdivision that the lawyer represents as a part-time prosecutor,
except with regard to matters for which the part-time prosecutor
had or has prosecutorial authority or responsibility.
The maximum penalty for a violation of this Rule is disbarment.
2 At the outset of the hearing, the trial court inquired into the more than
two-year delay in Scarborough’s filing of the motion to withdraw after his
appointment as counsel. Scarborough responded that the “regrettable” delay
was unavoidable because of the time he needed to review the voluminous
record adequately. He also explained that, while he initially believed that joint
representation was “the best and most efficient way to handle this,” he later
4
In support of his request to withdraw as counsel, Scarborough
asserted that: (1) he was in “an ethically untenable position” because
his loyalty to each Defendant would require him to omit issues and
claims he would otherwise raise in the motions for new trial or, at
the very least, to argue those issues “less robustly” than he
otherwise would; (2) he had an actual conflict under Rule 1.7
because his duties to each Defendant would materially and
adversely affect his performance and legal representation of the
others; (3) as required by Rule 1.7, he met separately with
Defendants and advised them of the conflict, and Defendants
declined to waive the conflict and requested the appointment of
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recognized that he had to make this motion under Rule 1.7—irrespective of the
passage of time—because (1) his representation of Defendants was conflicted;
(2) Defendants would not waive the conflict; and (3) he could be subject to
professional discipline if he continued to jointly represent Defendants despite
this conflict. Scarborough acknowledged that “everybody with a law degree
that’s involved with this case must have seen that this was a potential
problem,” but reiterated this awareness was no “substitute for reading the
record and performing as counsel.” Although the trial court expressed
frustration in the time it took Scarborough to raise the conflict issue,
particularly given the publicity surrounding the trial and the well-known fact
that Defendants “represent three levels of authority within APS,” the trial
court nevertheless allowed the motion hearing to proceed.
5
conflict-free appellate counsel; and (4) he contacted the General
Counsel’s Office at the State Bar of Georgia and, after describing the
circumstances, was advised that he could not continue representing
Defendants in this case.
In response to Scarborough’s assertions, the State argued that
there was no conflict of interest in Scarborough’s representation of
Defendants on appeal. In furtherance thereof, the State asserted
that Scarborough did not provide any specificity as to the purported
conflict of interest and that any purported conflict of interest was
merely an “erroneous assumption,” unsupported by case law, and
inapplicable in a RICO conspiracy case where all of the evidence
presented was relevant to all Defendants. After hearing additional
argument from both sides, the trial court conducted an ex parte
conference in chambers for Scarborough to detail the exact nature of
the conflict of interest, which Scarborough noted he could only do “to
a degree.”3
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3 During the ex parte conference, Scarborough emphasized to the trial
court that he could not go into the specific conflicts regarding each client
6
Following the ex parte conference, the trial court resumed the
hearing in open court and denied the motion to withdraw, stating
that, after “a private session with the public defender where the
public defender laid out what they term specifics about conflict,” the
court “did not find the conflict specific enough for anybody in this
case.” However, the trial court advised the parties that it would like
to “expedite the Appeals Court to look at this” and indicated it would
issue a certificate of immediate review to “ask [the Court of Appeals]
to take this issue up.”4 On August 21, 2019, the trial court entered
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because talking about one client would violate his duty of loyalty to another
client. He also explained that due to the nature of his clients’ employment
positions within APS (representing a hierarchy of high- to low-ranking
employees), he could not raise certain issues in arguing the motion for new
trial, as the issues would benefit one client at the expense of the others.
4 Of note, during the ex parte conference, the trial court had inquired of
Scarborough and the other conflict public defenders present whether the
Circuit Public Defender appointed only one attorney to represent Defendants
“in an effort to save money” and, if so, where the Public Defender was “going
to get the money” to hire and appoint “private conflict” counsel for the six
Defendants. Scarborough and the other attorneys present expressed their
inability to respond, stating it was “above [their] pay grade.” At the close of
the public hearing, the trial court asked Scarborough for “a detailed report on
the indigency” of each Defendant and “exactly what information they gave
[Scarborough] to be declared indigent for [him] to represent them.”
Scarborough stated that Defendants “have completed that process” and “have
been determined to be indigent,” to which the trial court responded, “I would
like all the information that was the basis of that, because, if this happens, it
7
a written order denying the motion to withdraw, stating simply that
“[f]or the reasons stated at the [August 8, 2019] hearing, the motion
is hereby denied.” On the same date, the trial court issued a
certificate of immediate review under OCGA § 5-6-34 (b).5
Defendants filed an application for interlocutory review in the
Court of Appeals on September 3, 2019, seeking permission to
appeal the trial court’s order denying the motion to withdraw under
OCGA § 5-6-34 (b). Before the Court of Appeals ruled on Defendants’
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is going to cost a million dollars for the State to fund new representation for
all these people[,]” and “they have a duty to show under oath that they are
indigent.” The State then asked when Defendants completed the process, to
which Scarborough responded, “It is not within the State’s purview to inquire
about their eligibility.” The trial court emphasized that it wanted “somebody
to inquire about it other than [Scarborough] just making the statement,”
explaining that “[i]f [the Court of Appeals] agree[s] with you, then the thing
has to start over, and there needs to be a detailed financial record of assets for
[Defendants] and tax returns.”
5 Under OCGA § 5-6-34 (b),
[w]here the trial judge in rendering an order, decision, or judgment, not
otherwise subject to direct appeal, including but not limited to the denial
of a defendant’s motion to recuse in a criminal case, certifies within ten
days of entry thereof that the order, decision, or judgment is of such
importance to the case that immediate review should be had, the
Supreme Court or the Court of Appeals may thereupon, in their
respective discretions, permit an appeal to be taken from the order,
decision, or judgment if application is made thereto within ten days after
such certificate is granted.
8
application, Defendants also filed a direct appeal of the trial court’s
order on September 20, 2019, asserting that the order was directly
appealable under the collateral order doctrine.
The Court of Appeals denied Defendants’ application for
interlocutory review on September 25, 2019.6 On June 29, 2021, in
a split decision issued by the whole court, the Court of Appeals also
dismissed Defendants’ direct appeal for lack of jurisdiction,
concluding that the collateral order doctrine did not apply to the trial
court’s order denying the motion to withdraw as counsel. See
Buckner-Webb, 360 Ga. App. at 331. Defendants then filed a second
petition for a writ of certiorari in this Court, which we granted on
December 14, 2021, to decide the first-impression legal question set
forth above.
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6 On November 11, 2019, Defendants filed their first petition for
certiorari in this Court, seeking review of the Court of Appeals’ denial of their
application for interlocutory review. We denied the petition for certiorari on
May 18, 2020.
9
II. Analysis
(a) Legal Backdrop
Our General Assembly has established a statutory framework
governing appeals in Georgia. See Rivera v. Washington, 298 Ga.
770, 780 (784 SE2d 775) (2016). See also OCGA § 5-6-34.
OCGA § 5-6-34 governs what trial court orders may be
reviewed immediately by an appellate court. Specifically,
subsection (a) of the statute lists the trial court judgments
and orders that may be appealed immediately. This list
includes all final judgments where the case is no longer
pending in the court below [except as provided in OCGA
§ 5-6-35].
Duke, 306 Ga. at 172 (1). This list also includes “specific types of
trial court rulings that the General Assembly has deemed important
enough to the case, or dispositive enough of the case, to warrant an
immediate appeal, even though such rulings are often interlocutory
rather than final judgments.” Rivera, 298 Ga. at 773 (citing OCGA
§ 5-6-34 (a) (2)-(13)). See also In re Paul, 270 Ga. 680, 682 (513 SE2d
219) (1999) (OCGA § 5-6-34 (a) (2)-(13) allows direct appeals of
“judgments or orders that may have an irreparable effect on the
10
rights of the parties, such as rulings in contempt, injunctions, and
mandamus actions[.]”).
Other cases can be appealed immediately only with
permission from both the trial court and the appellate
court. OCGA § 5-6-34 (b). When a trial court enters an
order, decision, or judgment not otherwise subject to
immediate appeal under OCGA § 5-6-34 (a), appeal from
that order may be had only where the trial judge certifies
within ten days of entry thereof that the order, decision,
or judgment is of such importance to the case that
immediate review should be had. Upon such certification,
the Supreme Court or the Court of Appeals may
thereupon, in their respective discretions, permit an
appeal to be taken from the order, decision or judgment.
Duke, 306 Ga. at 172 (1) (citing OCGA § 5-6-34 (b)) (punctuation
omitted). Accordingly, as a general rule, when a party seeks to
appeal a non-final order issued by a trial court before the case is
fully adjudicated below, Georgia courts require adherence to the
interlocutory procedures of OCGA § 5-6-34 (b) for appellate review.
See Rivera, 298 Ga. at 780.
Although the framework for appellate review has been
statutorily mandated by the General Assembly, our appellate courts
11
have nonetheless created an exception by allowing immediate
appeals of
a very small class of interlocutory rulings [that] are
effectively final in that they finally determine claims of
right 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.
Duke, 306 Ga. at 172-173 (1) (citation and punctuation omitted). To
qualify for immediate appeal under this “collateral order doctrine,”7
an interlocutory order must be “effectively final”—a status we assess
by examining whether the order “resolves an issue that is
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7 This legal doctrine has its origins in federal law. See Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (69 SCt 1221, 93 LE 1528)
(1949) (establishing the concept of an appealable “collateral order”—an
interlocutory order that falls “in that small class which finally determine
claims of right 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”). See also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106
(II) (A) (130 SCt 599, 175 LEd2d 458) (2009) (citing Cohen, 337 U.S. at 546,
and holding that this legal doctrine applies to the “small class of collateral
rulings that, although they do not end the litigation, are appropriately deemed
final”).
12
substantially separate from the basic issues to be decided at trial;”
would “result in the loss of an important right if review had to await
final judgment;” and “completely and conclusively decides the issue
on appeal such that nothing in the underlying action can affect it.”
Id. at 172, 174 (1) (citation and punctuation omitted). See also
Settendown Public Utility, LLC v. Waterscape Utility, LLC, 324 Ga.
App. 652, 656 (751 SE2d 463) (2013) (“In determining whether a
matter is subject to effective appellate review, we ask whether the
relief sought would be barred by the entry of final judgment in the
trial court.”). As part of this review, we evaluate the entire class to
which the claim belongs to determine whether this category of
claims is potentially appealable under the collateral order doctrine.
See Roberts v. State, 309 Ga. 639, 640 (1) (847 SE2d 541) (2020). See
also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (II) (A) (130
SCt 599, 175 LEd2d 458) (2009) (holding that, to determine the
applicability of the collateral order doctrine, the inquiry should focus
on “the entire category to which a claim belongs”). For example, in
13
Roberts, we asked whether “the denial of a statutory double jeopardy
claim is appealable under the collateral order doctrine,” ultimately
concluding that an order denying such a claim is appealable under
this legal doctrine. Roberts, 309 Ga. at 640-641 (1).
We have also allowed review of appeals under the collateral
order doctrine when, for example, the order at issue permitted the
State to involuntarily medicate a defendant to render him
competent for trial or compelled a non-party newspaper reporter to
disclose information regarding his confidential sources in a murder
case.8 But we have also concluded that certain interlocutory
orders—including an order denying a motion to dismiss based on a
defense of sovereign or quasi-judicial immunity and an order
denying the State’s motion to recuse a trial judge, among others—
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8 See, e.g., Warren v. State, 297 Ga. 810, 811 n.2 (778 SE2d 749) (2015)
(holding that a pretrial order granting the State’s motion requesting authority
to involuntarily medicate a defendant in an attempt to make him mentally
competent to stand trial was appealable under the collateral order doctrine);
In re Paul, 270 Ga. at 683 (determining that an immediate appeal of a trial
court’s order denying the statutory reporter’s privilege, see former OCGA § 24-
9-30, was authorized under the collateral order doctrine).
14
did not meet the requirements of the collateral order doctrine, and
thus, we did not undertake review in those cases.9
(b) Application
In the present case, the Court of Appeals majority concluded
that the interlocutory order here—an order denying counsel’s
motion to withdraw based on an alleged conflict of interest—was not
immediately appealable under the collateral order doctrine because
“[Defendants] would not lose an important right” by “waiting until
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9 See, e.g., Duke, 306 Ga. at 174 (1) (holding that the collateral order
doctrine did not apply to an order denying a criminal defendant’s request for
public funding for expert witnesses and investigators to aid his defense);
Rivera, 298 Ga. at 773, 777 (holding that the collateral order doctrine did not
apply to an order denying a motion to dismiss based on a defense of sovereign
or quasi-judicial immunity); State v. Cash, 298 Ga. 90, 93 (1) (b) (779 SE2d 603)
(2015) (holding that the collateral order doctrine did not apply to an order
denying the State’s motion to recuse the trial judge); Sosniak v. State, 292 Ga.
35, 40 (2) (734 SE2d 362) (2012) (holding that the collateral order doctrine did
not apply to an order denying a pretrial motion for a constitutional speedy
trial); Crane v. State, 281 Ga. 635, 635 (641 SE2d 795) (2007) (holding that the
collateral order doctrine did not apply to an order denying a motion to dismiss
the indictment pursuant to OCGA § 16-3-24.2); Thomas v. State, 276 Ga. 853,
853 (583 SE2d 848) (2003) (holding that the collateral order doctrine did not
apply to an order denying a motion for discharge and acquittal based upon an
alleged failure by the State to comply with Article IV (e) of the Interstate
Agreement on Detainers, OCGA § 42-6-20); Turner v. Giles, 264 Ga. 812, 812-
813 (450 SE2d 421) (1994) (holding that the collateral order doctrine did not
apply to the pretrial denial of a claim of qualified immunity).
15
the proper time for a direct appeal.” Buckner-Webb, 360 Ga. App. at
329, 330. We agree with that aspect of the Court of Appeals’ analysis
and conclusion.
However, the Court of Appeals majority opinion considered this
question only with respect to Defendants’ interest 10 in being
represented by conflict-free counsel. 11 See Buckner-Webb, 360 Ga.
App. at 330. The Court of Appeals was also presented with—but
declined to consider—whether counsel’s interest in avoiding a
potential ethical conflict that could violate a client’s constitutional
rights warrants collateral-order review 12—an issue we now consider
on certiorari review. We conclude that, even considering counsel’s
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10 Our appellate courts, like the federal courts, have used the terms
“right” and “interest” at different times in considering the application of the
collateral order doctrine. See, e.g., Scroggins v. Edmondson, 250 Ga. 430, 431-
432 (1) (c) (297 SE2d 469) (1982); Murphy v. Murphy, 322 Ga. App. 829, 832
(747 SE2d 21) (2013); Richardson-Merrell v. Koller, 472 U.S. 424, 434-435 (II)
(A), (105 SCt 2757, 86 LEd2d 340) (1985); Cohen, 337 U.S. at 546.
11 See Garland v. State, 283 Ga. 201, 203 (657 SE2d 842) (2008) (holding
that a criminal defendant is “entitled to representation on appeal by effective,
i.e., conflict-free, counsel as a matter of constitutional law”).
12 The dissent, however, did consider this issue and concluded that
counsel’s interest justified application of the collateral order doctrine. See id.
at 335-336 (McFadden, J., dissenting).
16
interest in this case, this category of orders—i.e., orders denying a
counsel’s motion to withdraw based on a conflict of interest—is not
among the “very small class” of interlocutory rulings that can bypass
the ordinary statutory procedures for appellate review. Duke, 306
Ga. at 172 (1).
We reach this conclusion because orders denying a counsel’s
motion to withdraw based on an alleged conflict of interest are not
“effectively final,” even as to counsel’s interest, in the sense needed
to justify application of the collateral order doctrine. Duke, 306 Ga.
at 172 (1). Indeed, counsel will still have ways to obtain review of
the interest at issue in such orders—that is, counsel’s interest in
avoiding a potential ethical violation arising from conflicted
representation. See Johnson & Johnson v. Kaufman, 226 Ga. App.
77, 82 (485 SE2d 525) (1997) (concluding that there are other means
of obtaining direct appellate review, including being held in
contempt, when an order is not “directly appealable” under the
collateral order doctrine). See also Mohawk Indus., Inc., 558 U.S. at
17
107 (II) (A) (holding that if this “class of claims, taken as a whole,
can be adequately vindicated by other means,” the collateral order
doctrine will not apply).
First, an attorney who is denied permission to withdraw as
counsel based upon an alleged conflict of interest can seek to
immediately appeal that order through the interlocutory appeal
procedures established by OCGA § 5-6-34 (b). See Sosniak v. State,
292 Ga. 35, 44 (734 SE2d 362) (2012) (Nahmias, J., concurring)
(noting that, although the collateral order doctrine did not apply, the
defendants could “still obtain relief [] through the interlocutory
appeal procedures provided by statute, see OCGA § 5-6-34 (b)”). We
acknowledge that, in this particular case, this avenue of review has
been exhausted, but it was nonetheless available and will be
available to similarly situated attorneys in future cases. 13
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13 In circumstances such as the one presented in this case, trial courts
should seriously consider issuing certificates of immediate review and the
Court of Appeals should seriously consider granting interlocutory review,
especially if there is “any substantial question” as to the merits of the ruling.
Rivera, 298 Ga. at 777.
18
“Another long-recognized option,” while not the most favorable,
is for an attorney to disobey the order and potentially be held in
contempt of court. Mohawk Indus., Inc., 558 U.S. at 111 (II) (B). If
an attorney’s motion to withdraw is denied and the attorney feels
strongly enough that he or she is being compelled to violate the
applicable rules of professional conduct, or otherwise imperil a
client’s constitutional rights, the attorney can refuse to comply with
the trial court’s order denying the motion to withdraw as counsel
and potentially be held in contempt for violating that order. The
attorney can then appeal directly from any resulting contempt
ruling under OCGA § 5-6-34 (a) (2). Cf. Johnson & Johnson, 226 Ga.
App. at 82 (citing Cobbledick v. United States, 309 U.S. 323, 327 (60
SCt 540, 84 LE 783) (1940), and adopting, in a civil case, “the United
States Supreme Court’s rationale that in the rare case when appeal
after final judgment will not cure an erroneous [interlocutory] order,
a party may defy the order, permit a contempt citation to be entered
against him, and challenge the order on direct appeal of the
19
contempt ruling”). 14 See also Mohawk Indus., Inc., 558 U.S. at 111(II) (B) (noting that “when the circumstances warrant it, a district
court may hold a noncomplying party in contempt,” and “[t]he party
can then appeal directly from that ruling”). We recognize that this
avenue for appellate review places the attorney in a very difficult
position, but it is a means of obtaining direct appellate review set
forth in Georgia statutory law that lifts the issue presented in this
case out of the realm of non-reviewability. See OCGA § 5-6-34 (a)
(2).15
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In Cobbledick, the United States Supreme Court concluded that where
14
a non-party witness was not permitted to immediately appeal an interlocutory
order of a trial court, the witness could either await final judgment for the trial
court’s order to be reviewed by the appellate court, or “[l]et the court go farther,
and punish the witness for contempt of its order—then arrives a right of
review; and this is adequate for his protection without unduly impeding the
progress of the case.” 309 U.S. at 327. See also United States v. Ryan, 402 U.S.
530, 532-533 (91 SCt 1580, 29 LE2d 85) (1971) (noting that the United States
Supreme Court has “consistently held that the necessity for expedition in the
administration of the criminal law” requires forcing a party or non-party to
make a “choice between compliance with a trial court’s order” and “resistance
to that order with the concomitant possibility of an adjudication of contempt if
his claims are rejected on appeal”).
15 Additionally, we note that, while a trial court’s power to revoke or
reconsider an interlocutory ruling in a criminal case ordinarily ends with the
expiration of the term of court in which the order was entered, an “important
exception” to this rule allows “after-term reconsideration, at least of
constitutional issues, where the ‘evidentiary posture’ of the issue has changed.”
20
Lastly, we acknowledge Scarborough’s specific argument that
he may face disciplinary action from the State Bar for violation of
Rule 1.7 if he is required to continue the joint representation of
Defendants, but we conclude that any such discipline is speculative
at this point. 16 And, given our conclusion in this case, we need not
address that issue at this time.
We recognize that federal and other state courts have reached
different conclusions in evaluating whether to allow an appeal of an
order denying a motion to withdraw as counsel due to alleged
conflicts of interest under the collateral order doctrine. 17 However,
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State v. Ross, 293 Ga. 834, 835 (750 SE2d 305) (2013) (quoting Moon v. State,
287 Ga. 304, 309 (2) (696 SE2d 255) (2009) (Nahmias, J., concurring)). If
additional evidence is presented in a case casting the original ruling in doubt,
a trial court would be authorized to revise it in accordance with the newly
presented facts. See generally Ross, 293 Ga. at 835-836.
16 Attorneys who have been ordered over objection to continue
representation that potentially raises ethical conflicts may be faced with
taking every step possible to avoid such violations during the representation,
including carefully representing their clients going forward by omitting issues
creating conflicts from their filings and by noting those omissions and the basis
thereof on the record.
17 See Commonwealth v. Wells, 719 A2d 729, 731 (Pa. 1998) (holding that
the collateral order doctrine did not apply in this context because a criminal
defendant has a future remedy and his right to appeal would not be lost);
United States v. Bellille, 962 F3d 731, 737 (II) (3d Cir. 2020) (holding that an
order denying an attorney’s motion to withdraw satisfied the collateral order
21
these cases are distinguishable from the present case, and unlike
Georgia’s appellate courts, none of these courts examined whether a
governing appellate statute exists in their respective states. Even if
such statutory schemes do exist, these cases speak nothing about
the “statutory scheme for appellate review of interlocutory orders
set out by our General Assembly in OCGA § 5-6-34”—or how the
collateral order doctrine that Georgia courts have applied fits into
that procedural framework. 18 Rivera, 298 Ga. at 776. See also
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doctrine because “the harm of violating one’s ethical obligations would be
complete and could not be undone after trial”); United States v. Oberoi, 331 F3d
44, 47 (I) (2d Cir. 2003) (holding that the collateral order doctrine applied
“[b]ecause the district court’s order conclusively determined the issue of the
[attorney’s] continued representation of [the defendant,]” and could not “be
effectively reviewed on final appeal”).
18 We are also aware of other federal and state cases where the appellate
courts determined that the collateral order doctrine applied to trial court
orders denying motions to withdraw as counsel, but these courts were not
considering motions based on counsel’s alleged ethical conflicts nor were they
apparently subject to an appellate statutory framework similar to Georgia’s.
The motions at issue in these cases arose from a client’s refusal to follow the
attorney’s legal advice, communicate or meet with the attorney, and/or pay the
attorneys for his or her services. See, e.g., Commonwealth v. Magee, 177 A3d
315, 321 (Pa. 2017); United States v. Barton, 712 F3d 111, 116 (I) (2d Cir. 2013);
In re Franke, 55 A3d 713, 719 (I) (Md. Ct. App. 2012); United States v. Shaw,
No. 08-6751, 2009 WL 226030 at *1 (4th Cir. Jan. 30, 2009); Commonwealth v.
Reading Group Properties, 922 A2d 1029, 1032-1033 (Pa. 2007); Galloway v.
Clay, 861 A2d 30, 32-33 (II) (D.C. Ct. App. 2004); Fidelity Nat. Title Ins. Co. of
22
American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 644-645 (732
SE2d 743) (2012) (Nahmias, J., concurring) (holding that OCGA § 5-
6-34 “is not a run-of-the-mill procedural provision,” but “a
jurisdictional law by which the General Assembly has limited the
authority of Georgia’s appellate courts to hear certain cases”
(emphasis in original)).
III. Conclusion
Accordingly, we conclude that a trial court’s order denying a
motion to withdraw as counsel based upon alleged conflicts of
interest does not fall within the “very small class” of cases that are
directly appealable under the collateral order doctrine, Duke, 306
Ga. at 174 (1), and we affirm the judgment of the Court of Appeals.
Because the “scheme for appellate interlocutory review is legislative
in nature,” should “the General Assembly determine[] that the
established framework does not adequately safeguard the interests”
—————————————————————
New York v. Intercounty Nat. Title Ins. Co., 310 F3d 537, 539 (7th Cir. 2002);
Whiting, 187 F3d at 319-320 (a).
23
at stake here, “it is for that body to change it.” Rivera, 268 Ga. at
777-778.
Judgment affirmed. All the Justices concur, except Peterson,
P.J., not participating, and Colvin, J., disqualified.
24
PINSON, Justice, concurring.
I concur fully in the Court’s opinion because it correctly applies
our collateral-order doctrine. I write separately to highlight the
doubtful legal footing of that doctrine, which, in my view, adds
another reason to not expand its reach here.
1. As the Court explains, our collateral-order doctrine allows a
party to appeal certain categories of interlocutory rulings before
final judgment without having to use the statutory procedure for
interlocutory appeals, see OCGA § 5-6-34 (b). We applied this
doctrine for the first time in Patterson v. State, 248 Ga. 875 (287
SE2d 7) (1982), where we held that an interlocutory order denying
a plea of double jeopardy was immediately appealable “without
resort to” our interlocutory-appeal statute.19 Id. at 875. And later
that year, in Scroggins v. Edmondson, 250 Ga. 430 (297 SE2d 469)
—————————————————————
19 When we decided Patterson, the procedures for interlocutory appeals
were found at Ga. Code Ann. § 6-701 (a) (2).
25
(1982), we decided that the doctrine could be applied in both
criminal and civil cases.
In these cases, our Court imported the collateral-order doctrine
from federal law. In Patterson, we quoted at length and with
approval the U.S. Supreme Court’s application of the federal
collateral-order doctrine in Abney v. United States, 431 U.S. 651 (97
SCt 2034, 52 LE2d 651) (1977), which approved immediate appeals
of denials of pleas of double jeopardy, and we rested our holding on
those “considerations.” Patterson, 248 Ga. at 876. And in Scroggins,
we described our holding in Patterson as “adopt[ing] the ‘collateral
order’ exception to the final judgment rule announced in Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (69 SCt 1221, 93 LEd
1528) (1949),” and offered no further justification for adding that
doctrine to Georgia law. Scroggins, 250 Ga. at 431 (1) (c).
We have flagged before the problems with “simply recit[ing]
holdings of the United States Supreme Court . . . and uncritically
import[ing] them into” Georgia law. Elliott v. State, 305 Ga. 179, 188
26
(II) (C) (824 SE2d 265) (2019). See also Black Voters Matter Fund,
Inc. v. Kemp, 313 Ga. 375, 391-93 (870 SE2d 430) (2022) (Peterson,
J., concurring) (calling into question our “frequent[]” practice of
relying on federal case law interpreting Article III of the U.S.
Constitution or adopting it “wholesale” as Georgia law “without
actually explaining why” it matters “for the different question of
Georgia standing”). The meaning of legal text—constitutional,
statutory, or otherwise—is determined “primar[ily]” by its “context,
which includes the structure and history of the text and the broader
context in which that text was enacted, including statutory and
decisional law that forms the legal background of the written text.”
City of Guyton v. Barrow, 305 Ga. 799, 805 (3) (828 SE2d 366) (2019).
So, when we need to figure out the meaning of Georgia law, decisions
of federal courts—even the U.S. Supreme Court—are helpful “only
to the extent that the Court’s decisions actually were guided by th[e]
same language, history, and context” of the Georgia law in question.
Elliott, 305 Ga. at 188 (II) (C). When we rely on such federal
27
decisions without making sure the relevant text and context match
up, we risk giving an “interpretation” of Georgia law that is
arbitrary, wrong, or both.
Unfortunately, our collateral-order doctrine could be the poster
child for this mistake. To see why, compare the relevant statutory
language and context under federal and Georgia law.
In federal law, the collateral-order doctrine is rooted in 28 USC
§ 1291, which grants federal courts of appeals “jurisdiction of
appeals from all final decisions of the district courts.” Id. (emphasis
added). The U.S. Supreme Court has explained that the doctrine
represents a “practical rather than a technical construction” of that
“final decisions” language. Mohawk Indus., Inc. v. Carpenter, 558
U.S. 100, 106 (II) (A) (130 SCt 599, 175 LE2d 458) (2009) (citing
Cohen, 337 U.S. at 546). Under that construction, “the statute
encompasses not only judgments that ‘terminate an action,’ but also
a ‘small class’ of collateral rulings that, although they do not end the
litigation, are appropriately deemed ‘final’” because they are
28
conclusive, effectively unreviewable, and separate from the
underlying merits of the case. Mohawk Indus., Inc., 558 U.S. at 106(II) (A) (quoting Cohen, 337 U.S. at 546). Reasonable jurists can
disagree on whether that doctrine fits comfortably within the phrase
“final decisions,” but that language at least allows a case to be made
that it encompasses more than just final judgments that leave no
claims pending below.
The same cannot be said for Georgia law. It is true that our
Court pitched the collateral-order doctrine as a “broader
construction” of Georgia’s own appellate-jurisdiction statute when
we imported the doctrine from federal law. Patterson, 248 Ga. at 876
(citing former Ga. Code Ann. § 6-701 (a), which is now OCGA § 5-6-
34 (a)). But when we imported the doctrine, we didn’t do any actual
“construction” of that statute. If we had, the problem with that move
would have quickly become clear. At that time, our appellate-
jurisdiction statute authorized an appeal “[w]here the judgment is
final—that is to say—where the cause is no longer pending in the
29
court below.” Ga. Code Ann. § 6-701 (a) (1). The current version is
similar: it authorizes an appeal from “[a]ll final judgments, that is
to say, where the case is no longer pending in the court below.”
OCGA § 5-6-34 (a) (1). It is hard to think of a clearer way to reject a
doctrine that allows appeals under this provision of orders in cases
that are still pending in the court below. And indeed, for around 140
years, our Court and the Court of Appeals have consistently held
that this language (and materially identical language in the prior
and current versions of the statute) means a judgment is not “final”
and appealable under this provision if any portion of the case
remains pending below. See Seals v. State, 311 Ga. 739, 741-42 (2)
(a) (860 SE2d 419) (2021) (tracing statutory history of OCGA § 5-6-
34 (a) and collecting cases confirming that interpretation).20 Unlike
—————————————————————
20 The eagle-eyed reader might notice that the prior version of this
statute said a judgment is final where the “cause” is no longer pending, Ga.
Code Ann. § 6-701 (a) (1), while the current version says a final judgment is
one where the “case” is no longer pending, see OCGA § 5-6-34 (a) (1). But we
equated “cause” with “case” as far back as 1883. See Zorn v. Lamar, 71 Ga. 80,
82 (1883) (holding that original version of this statute, which used the word
“cause,” meant that “as long as a defendant remains in the court below or other
issues remain untried there, the case is pending there, and no final judgment
has been had”). And we have since confirmed that this change did not
30
28 USC § 1291 (a)’s “final decisions” language, OCGA § 5-6-34 (a)
leaves no wiggle room for a doctrine that allows appeals when any
part of the case is still pending in the trial court.
If that language were not a clear enough rejection of a federal-
style collateral-order doctrine, the statutory structure around
OCGA § 5-6-34 (a)’s final-judgment rule is telling, too. That
structure tells us in at least two ways that our jurisdictional statutes
don’t contemplate that doctrine. First, our statute lists 12 further
categories of “judgments or orders” that can be appealed whether or
not they are “final.” OCGA § 5-6-34 (a). Including this kind of list in
our statute, which the General Assembly updates with some
regularity, 21 suggests (quite strongly, I think) that the role the
—————————————————————
materially alter the statute’s meaning. See Seals, 311 Ga. at 742 (2) (a).
21 See, e.g., Ga. L. 2016, p. 342, § 1 (adding subsection (a) (13): “All
judgments or orders entered pursuant to Code Section 9-11-11.1”); Ga. L. 2013,
p. 736, § 1, (modifying the language of subsection (a) (11)); Ga. L. 2012, p. 944,
§ 8-1 (adding subsection (a) (12): “All judgments or orders entered pursuant to
Code Section 35-3-37”); Ga. L. 2007, p. 555, § 2 (adding subsection (a) (11): “All
judgments or orders in child custody cases including, but not limited to,
awarding or refusing to change child custody or holding or declining to hold
persons in contempt of such child custody judgment or orders”); Ga. L. 2006, p.
382, § 2 (adding now-subsection (a) (10): “All judgments or orders entered
pursuant to subsection (c) of Code Section 17-10-6.2”).
31
collateral-order doctrine plays in federal law—identifying categories
of orders that deserve appeals before final judgment—has been
reserved by and for the General Assembly. 22 Second, our statute
allows parties to seek interlocutory review of a ruling if the trial
court certifies that the ruling is “of such importance to the case that
immediate review should be had.” OCGA § 5-6-34 (b). So Georgia
law provides a statutory mechanism for seeking immediate review
when important rights would be lost without it—again displacing a
basic role of the federal collateral-order doctrine. 23
—————————————————————
22 By contrast, the U.S. Congress’s message has been more mixed:
although federal law grants appellate jurisdiction over three narrow categories
of interlocutory orders, see 28 USC § 1292 (a), Congress has not updated that
list in 40 years, and it has further granted the U.S. Supreme Court power to
adopt rules either “defin[ing] when a ruling of a district court is final for the
purposes of appeal under section 1291,” Mohawk Indus., Inc., 558 U.S. at 113-
14 (II) (C) (quoting 28 USC § 2072 (c)), or “provid[ing] for an appeal of an
interlocutory decision . . . that is not otherwise provided for” under 28 USC §
1292, id. at 114 (quoting 28 USC § 1292 (e)).
23 Federal law offers a case-by-case safety valve for interlocutory review,
too, but a district court’s discretion to approve an order for such treatment is
more limited than a Georgia trial court’s. Compare 28 USC § 1292 (b) (allowing
federal court of appeals to exercise discretion to permit an appeal from an order
if the district judge states in writing that the order “involves a controlling
question of law as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation”) with OCGA § 5-6-34 (b) (allowing
interlocutory review if the trial court certifies that the ruling is “of such
32
In short, the language, context, and history of our appellate-
jurisdiction statutes are not the same as those that underpin the
federal collateral-order doctrine, and none supported importing it
into our law.
2. I do not point all of this out to suggest that we should
abandon the collateral-order doctrine—either in this case, or even in
another down the road. No one here has asked us to reconsider the
doctrine. And stare decisis may well warrant retaining the existing
decisions that apply the doctrine to allow appeals of certain
categories of interlocutory orders, which span four decades of our
case law.
But I do think the doubtful authority for importing the doctrine
at all cements the case against expanding its reach here. It is an
especially troubling kind of error to arrogate to ourselves as
appellate courts the authority to bend the limits of our own power to
review cases. See Duke v. State, 306 Ga. 171, 182 (3) (c), 186-87 (4)
—————————————————————
importance to the case that immediate review should be had”).
33
(829 SE2d 348) (2019) (acknowledging “core separation of powers
principle” that prevents courts from claiming authority to allow
appeals outside of statutory scheme); Gable v. State, 290 Ga. 81, 85
(2) (b) (720 SE2d 170) (2011) (“[C]ourts have no authority to create
equitable exceptions to jurisdictional requirements imposed by
statute.” (citation and punctuation omitted)). See also Cook v. State,
313 Ga. 471, 479 (2) (a) (870 SE2d 758) (2022) (overruling “judicially
creat[ed]” trial court out-of-time appeal procedure). Nor does the
error seem harmless as a practical matter. When it applies, the
collateral-order doctrine allows litigants to bypass the process for
interlocutory review that the General Assembly chose to start with
trial courts, see OCGA § 5-6-34 (b), thus “divest[ing] trial courts of
one of their essential tools for controlling litigation before them.”
Duke, 306 Ga. at 186 (4) (“By requiring the prompt, affirmative
assent of the trial court before an interlocutory appeal can proceed,
OCGA § 5-6-34 (b) allows the trial court to manage litigation before
it to a conclusion except in those circumstances in which the trial
34
court believes that the issues presented by a litigant need
clarification by an appellate court before the case proceeds.”). And
because the doctrine allows litigants to argue for review of categories
of nonfinal orders in court, it pulls many if not most of those
arguments away from the legislature, which is generally supposed
to make categorical policy judgments and already does make these
particular judgments on a regular basis. See OCGA § 5-6-34 (a). By
resisting the call in this case to recognize another non-statutory
exception to our statutory final-judgment rule, the Court’s opinion
avoids perpetuating these problems.
With these things in mind, I concur fully in the Court’s opinion.
I am authorized to state that Justice Warren and Justice Bethel join
in this concurrence.
35