## Facts

- Wilson P. Abraham Construction Corporation filed a private civil antitrust action against Armco Steel Corporation, The Ceco Corporation, and Laclede Steel Company.
- Abraham was represented in part by attorney Stephen D. Susman.
- Years earlier, Susman (then at Fulbright & Jaworski) represented Whitlow Steel Company in connection with a federal grand jury investigation into the Texas rebar steel industry.
- Armco, Ceco, and Laclede were also charged in the criminal antitrust matter arising from that investigation.
- During the grand jury matter, Susman attended multiple meetings with representatives and counsel for Armco, Ceco, and Laclede aimed at coordinating a “cooperative defense.”
- Defendants contended those meetings involved exchange of documents, preparation of witness lists, and sharing of information about grand jury testimony; Susman contended the meetings were disorganized and substantively unproductive.
- In the later civil suit, defendants moved to disqualify Susman, asserting an attorney-client or joint-defense relationship had formed and that Susman had received confidential defense information creating a conflict (and an appearance of impropriety).
- The district court denied disqualification; defendants took an interlocutory appeal.

## Issues

1. Whether an order denying a motion to disqualify counsel is immediately appealable under 28 U.S.C. § 1291 as a collateral order.
2. Whether the district court erred in refusing to disqualify Susman based on his prior involvement in the grand jury investigation and alleged cooperative-defense relationship with the defendants.

## Decision

- The court of appeals exercised jurisdiction, treating the denial of disqualification as a collateral order separable from the merits and effectively unreviewable after final judgment.
- The court affirmed the denial of disqualification.
- The court concluded defendants did not meet their burden to show Susman had a disqualifying prior attorney-client or confidential relationship with them, or that confidential information was imparted in a way requiring removal.
- The court deferred to the district court’s factual assessment of the disputed meetings and their significance.

## Legal Principles

- Orders granting or denying motions to disqualify counsel may be immediately appealable as collateral orders when they are separable from the merits and would evade effective review after final judgment.
- Disqualification is an extraordinary remedy and should be ordered only when necessary to protect the integrity of the proceedings or prevent misuse of confidential information.
- The movant bears the burden to establish a basis for disqualification, typically by showing a prior attorney-client or comparable confidential relationship and a meaningful risk that confidences relevant to the current matter were obtained and could be used adversely.
- Where the disqualification motion turns on disputed facts about the existence and content of alleged confidential exchanges, appellate review gives substantial deference to the district court’s evaluation of the record.

## Conclusion

The Fifth Circuit held it could immediately review the denial of a motion to disqualify counsel under the collateral order doctrine and affirmed because the defendants failed to demonstrate that counsel’s earlier participation in cooperative-defense meetings created a proven confidential relationship or transfer of confidences requiring disqualification in the later civil antitrust case.


Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250 (5th Cir. 1977)