Musa v. Gillette Communications of Ohio

While I fully concur in the majority's decision to reverse the trial court's order which disqualified appellant's counsel, I write separately to set forth my view that the instant order is a final, appealable order.

Section 3(B)(2), Article IV of the Ohio Constitution provides appellate courts with jurisdiction over final orders. A final order is defined, in pertinent part, as "an order affecting a substantial right made in a special proceeding." There is no doubt that at the time the trial court's order was journalized, such order constituted a final, appealable order. Russell v.Mercy Hosp. (1984) 15 Ohio St.3d 37, 15 OBR 136, 472 N.E.2d 695;Centimark Corp. v. Brown Sprinkler Serv., Inc. (1993), 85 Ohio App.3d 485, 620 N.E.2d 134. However, after appellant had perfected its appeal with this court, the Ohio Supreme Court issued its decision in Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213. Polikoff overruled Amato v. Gen. MotorsCorp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, which applied a balancing test to determine whether an order is one which affects a substantial right made in a special proceeding. Because the Ohio Supreme Court's decision in Russell applied the Amato balancing test, the issue of whether an order disqualifying opposing counsel in a civil action constitutes a final, appealable order must be re-examined.

In Polikoff, the Ohio Supreme Court perceived the Amato balancing test as leading to disparate results and, therefore, returned to a more historic approach to determining whether an order was entered in a special proceeding. Accordingly, the Supreme Court held that "[o]rders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to R.C. 2505.02." Id. at syllabus.

In reaching its holding in Polikoff, the Supreme Court applied the following two-pronged test: First, the court asked whether the underlying action was recognized in equity, at common law, or established by special legislation. Next, the court looked to the nature of the relief being sought. The court noted that "[t]his is not a case wherein the aggrieved party filed a special petition seeking a remedy that was conferred upon that party by an Ohio statute nor is it a proceeding that represents what is essentially an independent judicial inquiry."Id., 67 Ohio St.3d at 107, 616 N.E.2d at 218, citing In re Estateof Wyckoff (1957), 166 Ohio St. 354, 357-358, 2 O.O.2d 257, 259-260, 142 N.E.2d 660, 663, 664. The Supreme Court further considered that "[i]n examining the ultimate reviewability of the order, we find that the facts needed to analyze this precise issue will be unchanged by the ultimate disposition of the underlying action. The question of whether appellees complied with Civ.R. 23.1 will be preserved throughout this litigation."Polikoff, 67 Ohio St.3d at 107, 616 N.E.2d at 218. Finally, the court distinguished a special petition from the underlying action in that the underlying action arises from the pleadings on questions of law and fact and results in a judgment for the prevailing party.

Thus, notwithstanding the apparent sweeping language of the syllabus in Polikoff, an order may still be final and appealable when entered in an action recognized at common law or at equity if the "aggrieved party filed a special petition seeking a remedy that was conferred upon that party by an Ohio statute or [if it is] a proceeding that represents what is essentially an independent judicial inquiry." Id.

In fact, the Supreme Court appears to have recognized this principle in its decision in Bell v. Mt. Sinai Med. Ctr. (1993),67 Ohio St.3d 60, 616 N.E.2d 181, decided the same day asPolikoff. In Bell, the Supreme Court concluded that a motion for prejudgment interest pursuant to R.C. 1343.03(C) in an underlying medical malpractice action constitutes a special proceeding inasmuch as the right to obtain such relief,i.e., prejudgment interest, is purely statutory in nature and was unavailable at common law.

This court has also recognized that an order entered in a motion proceeding in an action recognized at common law may nonetheless constitute a special proceeding. Thus, a motion for a protective order asserting a statutory privilege against disclosure of HIV test results or diagnosis (a privilege unavailable at common law) is a special petition which seeks a remedy conferred by statute and is a proceeding which represents what is essentially an independent judicial inquiry. Arnold v.Am. Natl. Red Cross (1994), 93 Ohio App.3d 564, 639 N.E.2d 484. Similarly, the First District Court of Appeals has concluded that it is the nature of the privilege, not the underlying cause of action, which must be examined. Niemann v. Cooley (1994),93 Ohio App.3d 81, 637 N.E.2d 943. In Niemann, the court of appeals concluded that an order compelling production of documents is one made in a special proceeding where all the privileges asserted were statutory in nature. Id. at 84-85,637 N.E.2d at 945-946.

Since Polikoff, the question presented in the case subjudice has been explored by the Second District Court of Appeals in Stevens v. Grandview Hosp. Med. Ctr. (Oct. 20, 1993), Montgomery App. No. 14042, unreported, 1993 WL 420127. InStevens, the court of appeals held "that the granting of a motion to disqualify counsel is a final appealable order pursuant to R.C. 2505.02 even though it appears to fly in the face of the syllabus of the Polikoff case. We are relying on the reasoning set forth by the Supreme Court in Polikoff, which we recited earlier in this opinion, pursuant to the ultimate reviewability of the order and that it represents `what is essentially an independent judicial inquiry.'" Id. at 5-6.

At first glance, the Second District Court of Appeals' decision in Stevens would appear to be at odds with this court's decision in State v. Keenan (Jan. 14, 1994), Cuyahoga App. No. 66264, unreported, 1994 WL 24257. In Keenan, this court concluded that an order granting a motion to disqualify court-appointed counsel in a criminal proceeding is not an order made in a special proceeding. Id. However, this court was persuaded by the United States Supreme Court's decision inFlanagan v. United States (1984), 465 U.S. 259, 104 S.Ct. 1051,79 L.Ed.2d 288, which ruled that disqualification orders in criminal cases were not immediately appealable. This court followed the Supreme Court's reasoning that the constitutional requirement of speedy adjudication in criminal matters, as well as the practice of moving to disqualify counsel in civil cases as a delaying tactic, could justify different results. Keenan thus recognized a trial court's inherent authority to control the court's docket in criminal matters in order to assure an accused's constitutional right to a speedy trial.

Keenan should also be read to recognize a trial court's inherent authority over counsel who appear before it in criminal matters. It cannot be disputed that a trial court maintains responsibility to criminal defendants to assure competent and effective representation in criminal proceedings. Strickland v.Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304;State v. Lytle (1976), 48 Ohio St.2d 391, 2 O.O.3d 495,358 N.E.2d 623. Thus, it is clearly the trial court's responsibility in criminal proceedings to remove counsel when it appears that there has been a breakdown in the attorney-client relationship so as to jeopardize the defendant's right to effective assistance of counsel. State v. Coleman (1988), 37 Ohio St.3d 286,292, 525 N.E.2d 792, 798-799; State ex rel. Kura v. Sheward (1992), 75 Ohio App.3d 244, 598 N.E.2d 1340. A trial court's authority over appointed counsel, as in Keenan, would appear to be more profound than its control over retained counsel.

Additionally, a trial court's decision to disqualify counsel in a criminal matter can be reviewed after final judgment on direct appeal through a claim of ineffective assistance of counsel. See Hester, Lytle, and Coleman, supra. To the contrary, there is no constitutional right to effective assistance of counsel in civil proceedings. As such, an injured party's remedy for inefficient legal counsel is, generally, against the attorney in a suit for malpractice. GTE Automatic Elec., Inc. v.ARC Industries (1976), 47 Ohio St.2d 146, 1 O.O.3d 86,351 N.E.2d 113. Accordingly, the effects of disqualifying retained counsel in a civil proceeding cannot be measured after judgment on appeal from the action.

Finally, this is not a case where a motion to disqualify opposing counsel has been denied. Thus, there is no conflict with the Supreme Court's decision in Bernbaum v. Silverstein (1980), 62 Ohio St.2d 445, 16 O.O.3d 461, 406 N.E.2d 532. InBernbaum, the Supreme Court concluded that an order denying the defendant's motion to disqualify plaintiff's counsel brought on grounds that plaintiff's counsel once represented the defendant and might disclose defendant's confidences was not final and appealable. The court concluded that allegations of disclosures of confidences, if proven, could constitute reversible error on appeal from judgment in the main action. Id. at 448, 16 O.O.3d at 463-464, 406 N.E.2d at 535. However, as previously stated, I cannot conclude that the effects of disqualifying counsel can be measured after judgment on appeal from the main action. Moreover, the costs which an aggrieved party would likely incur in having to obtain new counsel must be recognized in distinguishing Bernbaum from the case sub judice.

Therefore, based on the foregoing, I conclude that an order disqualifying counsel in a civil action is an order which affects a substantial right made in a special proceeding. In reaching this conclusion, I rely on that portion of the Supreme Court's opinion in Polikoff which defines a special proceeding as one in which the aggrieved party has filed a special petition, i.e., a motion, which requires the trial court to engage in "what is essentially an independent judicial inquiry." Additionally, the question raised by the independent judicial inquiry is separate and apart from the issues of law and fact which arise from the pleading, and resolution of which will not result in a judgment for the prevailing party. Finally, as distinguished from Keenan and Bernbaum, it is impossible to conclude that this court will be able to measure the effects of disqualifying counsel after final judgment.

Having concluded that the order sub judice is final and appealable, I concur in the majority's decision to reverse.