United States v. Victor Greger

Greger appeals from a post-indictment, pre-trial order disqualifying his counsel. The order was entered after a hearing at which Greger refused to waive his Sixth Amendment right to conflict-free representation and at which Greger’s counsel stated that he would not ask his other clients and former clients — potential witnesses against Greger — to waive their attorney-client privileges. Because we conclude that the district court’s order is not appealable under 28 U.S.C. § 1291 and because the case does not present exceptional circumstances warranting issuance of a writ of mandamus, we dismiss the appeal without deciding the merits of the disqualification order.

I. Jurisdiction under 28 U.S.C. § 1291 .

In Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 , the Supreme Court held that a “small class” (Id. at 546, 69 S.Ct. at 1225 ) of orders are final and appealable under § 1291, even though they do not end the litigation. The Court has defined the attributes of such orders as follows: “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be…