Cunningham, Teresa v. Hamilton County, Ohio (06/14/1999)

By: Brenda Scholten, Medill News Service

Questions presented

Should the Court allow an attorney who was disqualified from a case to appeal an attorney sanctions order before final judgment is entered in the case?

Brief

Nothing seemed to be going right for attorney Teresa L. Cunningham, a solo practitioner in Florence, Kentucky. On Sept. 19, 1995, she had filed suit on behalf of the father of a prison inmate who committed suicide in a jail in Hamilton County, Ohio. The complaint Cunningham filed on behalf of Darwin Lee Starcher alleged that the county and others failed to supervise Starchers son Casey, despite his known history of suicide attempts.

But as the 6th Circuit Court of Appeals would later say in its majority opinion, ""her representation was fraught with difficulties even from the earliest days of litigation."" Defendants filed four motions to disqualify Cunningham as counsel because they said she had become a material witness by speaking with a mental health official about Casey before his suicide.

While she was opposing the motions to disqualify, she was served with interrogatories and document requests that she told defense counsel she was unable to respond to because Darwin Starcher had died.

A federal magistrate held a discovery conference on July 10, 1996 -- 10 days after the discovery requests were due -- and ordered Cunningham to make ""full and complete responses"" to the interrogatories and document requests within two days. When Cunningham again failed to fully comply with discovery obligations, defendants moved for an award of the attorneys fees they incurred in compelling Cunningham to comply with the earlier discovery order.

At a hearing on July 19, Cunningham argued that she could not meet discovery obligations because her client had died and the answers depended on documents to be produced by the defendants. The new administrator of Caseys estate was not returning her telephone calls, she added. The judge ordered Cunningham to supplement her discovery responses with full and complete responses within 10 days and granted the defendants motion for fees and costs.

Cunningham argued in a memorandum that the defendants motions for fees and costs were received only shortly before the July 10 hearing and that the amount requested was too high. She also argued that the order for discovery responses entered July 10 only gave her two days to respond.

The magistrate rejected these arguments, ordering that Cunningham pay $1,690 in attorneys fees to the county defendants. Over Cunninghams objections, the district court affirmed the magistrate's award of fees and costs. Simultaneously, the district court granted the defendants motion to disqualify Cunningham as plaintiffs counsel.

In a divided opinion, the 6th Circuit Court of Appeals found that an attorney who withdraws or is disqualified from a case may not take an immediate appeal, but rather must wait to file an appeal until final judgment is entered in the case

However, the court referred to a ""small class"" of discovery and other interlocutory orders that were the exception to this final judgment rule. According to the court, the Supreme Court had carved out this designation for appeals that were ""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."" This test was established by the Court in 1949 with Cohen v. Beneficial Industrial Loan Co.

To qualify as an immediately appealable ""collateral order"" under Cohen, it must conclusively determine the disputed question, resolve a disputed issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. The 6th Circuit reasoned that the first Cohen factor was satisfied so it was left to debate the other two.

In the majority opinion, the court rejected the opinion of the dissenting judge that Cunningham was entitled to an immediate appeal because she was disqualified as counsel, subsequently making her appeal separate from the issues involved in the underlying case. ""We believe the better view is that a non-participating attorney, like a participating attorney, ordinarily must wait until final disposition of the underlying case before filing an appeal,"" the court countered.

In regard to the third element of the Cohen test — whether the order would be effectively unreviewable absent an interlocutory appeal — the court reasoned that ""we see no reason why, after final resolution of the underlying case, a sanctioned attorney should be unable to appeal the order imposing sanctions.""

Thus, because Cunninghams appeal could not meet all three elements of the Cohen test, the court concluded that it did not have jurisdiction and dismissed.

Cunninghams petition for certiorari to the U.S. Supreme Court was granted on Jan. 15, 1999.

According to Cunninghams attorneys, the 6th Circuit followed the 10th Circuit, which does not permit immediate appeals of sanction orders, without regard to whether the attorney remains in the case. The 3rd, 5th and 7th Circuits, on the other hand, have held that a sanction order against an attorney who no longer represents a party in the litigation is appealable under the collateral order doctrine.

""The majority announced that it would have allowed Petitioner to appeal from a final judgment in the case, although it recognized that Petitioner had not in fact filed such an appeal and therefore would never have the opportunity to contest the sanctions order against her,"" attorneys for Cunningham wrote in their brief to the U.S. Supreme Court.

On June 14, 1999, the Court unanimously affirmed, holding that an order imposing sanctions on an attorney pursuant is not a ""final decision,"" evenwhere the attorney no longer represents a party in the case.

Writing for the Court, Justice Clarence Thomas conceded that appellatereview of the sanctions order, however, cannot remain completely separate from the merits of the case. For instance, in Cunningham's case, some ofthe sanctions were based on the fact that she provided partial responses and objections to some of the defendants' discovery requests. To evaluate whether those sanctions were appropriate, a court would have to assess thecompleteness of her responses. Such an inquiry would differ only marginally from an inquiry into the merits, the Court reasoned.

Nonetheless, the Court concluded that to permit an immediate appeal in this case would undermine the very purposes of the rule allowing sanction orders, which was designed to protect courts and opposing parties from delaying or harassing tactics during discovery, and would underminetrial judges' discretion to structure a sanction in the mosteffective manner.