Kurstin v. Bromberg Rosenthal, LLP

CHARLES E. MOYLAN, Jr., J., Retired, Specially Assigned. Our concern is with the threshold of appealability. The particular aspect thereof that commands our attention is the collateral order doctrine. Does the denial in this case of a motion to quash a discovery order qualify as a privileged collateral order within the contemplation of the doctrine?

Or shall its review more properly await a final judgment? The Procedural Background The appellee, Bromberg Rosenthal, LLP et al., is a law firm based in Rockville, Maryland. On May 27, 2008, it sued a former client, the appellant Coralie Kurstin, for $25,000 due on an unpaid legal fee. Ms. Kurstin responded with a counterclaim, suing in turn the law firm, along with one of its partners, Barry Rosenthal, Esq., for legal malpractice.

Ms. Kurstin prayed a jury trial, thereby transferring the case from the District Court to the Circuit Court for Montgomery County. Bromberg Rosenthal had earlier represented Ms. Kurstin in a divorce case against her then husband, Ronald Kurstin (now deceased). The case ended with a decree of absolute divorce being granted on December 31, 2002. Incorporated into the divorce decree was a settlement agreement including the following proviso: Dr. Kurstin is going to continue to maintain his current life insurance policy of 1.5 million dollars for the benefit of the parties’ children, and this beneficiary designation will be irrevocable. ¹²⁸ Several years later, but while Ronald Kurstin was still alive, Ms. Kurstin learned that her former husband had breached the settlement agreement by removing his four children by Ms. Kurstin as the beneficiaries of the life insurance policy and substituting his girlfriend, Terry LeSohn, as sole beneficiary.

Ms. Kurstin consequently retained her current counsel, Ellis J. Koch, Esq., and filed suit against Ronald Kurstin (as well as against Terry LeSohn and the USAA Life Insurance Company) in an effort to prohibit the switch of beneficiaries. The case was filed in the Circuit Court for Montgomery County on June 2, 2006. A Temporary Restraining Order was issued as to USAA Life on June 5, 2006, enjoining it from disbursing any funds under the policy until further order of the court. At a motions hearing on July 21, 2006, settlement negotiations were entered into.

As a result, a consent order was entered in the case, providing that $250,000 would be released to the control of Ronald Kurstin under the accelerated death benefit provisions of the policy, thereby reducing the policy’s value to $1,250,000 for the benefit of the four children, who remained, however, as the designated beneficiaries. On August 22, 2006, Dr. Kurstin died and the policy provisions to the beneficiaries were paid. Matters remained quiet for almost two years. When Bromberg Rosenthal sued for its unpaid legal fee on May 27, 2008, however, Ms. Kurstin responded with her suit against the firm for legal malpractice.

On the malpractice claim, Ms. Kurstin’s position is that the negligence of Bromberg Rosenthal, in failing to notify the life insurance company of the settlement agreement prohibiting a change in beneficiaries, left her with no feasible alternative but to enter into the 2006 consent order by which her children lost a portion of the benefits that was their due. The position of Bromberg Rosenthal, on the other hand, is that when Ms. Kurstin sued her ex-husband to preclude him from making any changes in the beneficiaries of his life insurance policy, all the legal merit was indisputably on her side and there was, therefore, no sound tactical reason for any ¹²⁹ compromise on her part. The yielding to him of control over $250,000 was, in its view, ill-advised. Battle was thus joined between two law firms as to their respective legal appraisals of the insurance policy controversy and as to appropriate responsive strategies.

If the children of Ms. Kurstin, as beneficiaries of their father’s life insurance policy, lost $250,000, the critical issue would be which law office, if either, might be found responsible for all, or for some, of that loss? Discovery: A Scheduled Deposition Anticipating an impending clash over competing legal assessments and competing responsive strategies, Bromberg Rosenthal filed a Notice of Deposition Duces Tecum on Ellis J. Koch, Esq., the successor attorney for Ms. Kurstin, announcing that it would take his deposition and instructing him “to bring copies of all documents in his possession related to his representation of Coralie Kurstin in the underlying case.” Ms. Kurstin promptly filed a Motion to Quash Notice of Deposition and For Protective Order, along with an accompanying Memorandum of Law. Her core contention was: There is no justification in law permitting inquiry into the matters covered by the attorney-client privilege, work product privilege or mental impressions of counsel. Her supporting memorandum predicted the likely use that Bromberg Rosenthal would make of the deposition.

In defending the malpractice action, PlaintiffiCounterDefendant Bromberg Rosenthal seeks the deposition duces tecum of the undersigned counsel with the expressed, intent of possibly suing undersigned counsel for contribution and indemnification intending to allege negligence in advice as to nsk assessment given to Coralie Kurstin and the children upon which they based their determination to settle the Second Case recited above. (Emphasis supplied). Bromberg Rosenthal filed its Opposition to Motion to Quash Notice of Deposition along with an accompanying Memoran ¹³⁰ dum of Law. In that memorandum, it acknowledged its basic position in the legal malpractice case.

Notwithstanding the fact that Mr. Kurstin clearly breached the settlement agreement and the fact that Mr. Kurstin was still alive at that time and therefore could be compelled to re-designate the Defendants/Counter-Plaintiffs adult children as the sole beneficiaries on the life insurance policy, the Defendant/Counter-Plaintiff, through the representation of Ellis Koch, Esquire, agreed to settle the litigation against Mr. Kurstin. (Emphasis supplied). With direct reference to recognized exceptions to the attorney-client privilege, Bromberg Rosenthal stated its need for the inquiry. [I]t is the contention of Rosenthal, LLP and Barry Rosenthal that Defendant/Counter-Plaintiffs damages were caused by her settlement of the lawsuit filed by Mr. Koch and not by any act or omission on the part of Rosenthal, LLP and Barry Rosenthal. In order to support this defense, Rosenthal, LLP and Barry Rosenthal need to be able to ask questions of both Ms. Kurstin and Mr. Koch related to the settlement of that lawsuit, that seek information that would, but for the filing of this lawsuit, be protected by the attorney-client privilege.

(Emphasis supplied). The question posed before Judge Michael D. Mason was that of whether the attorney-client privilege must yield when a client has sued a former law firm for legal malpractice and arguably puts in issue matters that might otherwise be protected by the attorney-client privilege the client enjoys with a successor law firm. The issue raised by the competing memoranda centered on the proper application of Parler & Wobber v. Miles and Stockbridge, 359 Md. 671 , 756 A.2d 526 (2000); E.I. du Pont v. Forma-Pack, 351 Md. 396 , 718 A.2d 1129 (1998); and Hearn v. Rhay, 68 F.R.D. 574 (D.C.Wash.1975). On January 8, 2009, Judge Mason filed an Order denying Ms. Kurstin’s motion to quash the deposition and for a protec ¹³¹ tive order.

He ruled that the attorney-client privilege between Ms. Kurstin and the successor law firm had been waived. Ms. Kurstin has appealed that order. Bromberg Rosenthal has moved to dismiss the appeal on the ground that it is neither a final order nor immediately appealable under the collateral order doctrine. To make the focus clear, we are dealing with an attempted appeal from a discovery ruling.

One party moved to take a deposition. The opposing party moved to quash the request for a deposition. The motion to quash was denied. This appeal is taken from that denial.

The appellee, in turn, charges the appellant with jumping the gun with a premature appeal. Finality As the Generative Source of Appealability The issue is appealability. To appeal an adverse judicial decision, it should be clear, is not a constitutional right. It is only a grant of legislative grace.

To appeal a perceived injustice at the hands of a trial court is not an inherent common law entitlement. It is only a grant of legislative grace. Jolley v. State, 282 Md. 353, 355 , 384 A.2d 91 (1978); Sigma Reproductive Health Center v. State, 297 Md. 660, 664-65 , 467 A.2d 483 (1983); Gruber v. Gruber, 369 Md. 540, 546 , 801 A.2d 1013 (2002). The entire appellate process is but a creature of statute.

It may be rescinded tomorrow at the whim of the General Assembly. An appeal may do only what its life-giving statute says it may do. It may do no more. The Promethean fount for an appeal in Maryland is Courts and Judicial Proceedings Article, § 12-301.

Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been sus ¹³² pended. In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment.

(Emphasis supplied). The critical focus is thus upon a final judgment. Section 12 — 101(f) defines “final judgment”: (f) Final judgment. — “Final judgment” means a judgment, decree, sentence, order, determination, decision or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken. [1] (Emphasis supplied). Finding scant comfort in the resolution of the finality question in such definitional ping-pong, Judge Digges acknowledged in Peat v. Los Angeles Rams, 284 Md. 86, 91 , 394 A.2d 801 (1978): [A]s this definition implies, it is ultimately for this Court to decide which judgments or orders are final and, therefore, applicable under section 12-301.

(Emphasis supplied). Resolutely, the Peat opinion then set about the process of filling the definitional gap. [W]e have stated as a general rule that in order to be appealable a “judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.” See also Jackson v. State, 358 Md. 259, 266 , 747 A.2d 1199 (2000); Highfield Water Co. v. Washington County, 295 Md. ¹³³ 410, 415, 456 A.2d 371 (1983); Schultz v. Pritts, 291 Md. 1, 5-6 , 432 A.2d 1319 (1981). Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 (1989), added the following supplementary description: “If a ruling of the court is to constitute a final judgment, it must have at least three attributes: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of it in accordance with Md. Rule 2-601.” See also Board of Liquor v. Fells Point Cafe, 344 Md. 120, 129 , 685 A.2d 772 (1996). Regularly reiterated statements about the purpose of the finality rule, however, have assisted in its sure application even if the statutory definition itself was a bit hazy.

In Jolley v. State, 282 Md. 353, 356 , 384 A.2d 91 (1978), the Court of Appeals explained finality’s purpose: The purpose of this general rule is, of course, to prohibit piecemeal disposition of litigation. It enables the combining in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results. Sigma Reproductive Health Center v. State, 297 Md. 660, 665 , 467 A.2d 483 (1983), spoke to the same effect: The primary rationale is to prevent piecemeal appeals and to prevent the interruption of ongoing judicial proceedings. Thus, the rule is designed to promote judicial efficiency and economy.

We may edge, minimally, away from finality on occasions, but finality remains the ever-present polestar. It is clear that the order of Judge Mason denying the motion to quash the deposition request in this case was not a final judgment within the contemplation of § 12-301. Jolley v. State, 282 Md. at 355-56 , 384 A.2d 91 ; Warren v. State, 281 Md. 179, 182-83 , 377 A.2d 1169 (1977); United States Fire ¹³⁴ Ins. v. Schwartz, 280 Md. 518, 521-24 , 374 A.2d 896 (1977); Mitchell Properties v. Real Estate Title, 62 Md.App. 473, 482 , 490 A.2d 271 (1985); Addison v. State, 173 Md.App. 138, 152 , 917 A.2d 1200 (2007). Ms. Kurstin, indeed, does not claim otherwise.

Three Exceptions to the General Rule There are, however, three exceptions to the § 12-301 finality requirement. Judge Wilner summarized them in Salvagno v. Frew, 388 Md. 605, 615 , 881 A.2d 660 (2005): “[W]e have made clear that the right to seek appellate review of a trial court’s ruling ordinarily must await the entry of a final judgment that disposes of all claims against all parties, and that there are only three exceptions to that final judgment requirement: appeals from interlocutory orders specifically allowed by statute; immediate appeals permitted under Maryland Rule 2-602; and appeals from interlocutory rulings allowed under the common law collateral order doctrine.” (Emphasis supplied). See also Nnoli v. Nnoli, 389 Md. 315, 324 , 884 A.2d 1215 (2005); Shoemaker v. Smith, 353 Md. 143, 165 , 725 A.2d 549 (1999). The first two of those exceptions are statutory; the third is a product of the common law.

A. Statutorily Authorized Interlocutory Appeals The first of the statutory exceptions is set out in § 12-303, which provides that “[a] party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:”. The section then goes on to list 13 very specific and highly particularized orders which enjoy this statutory exemption from the final judgment requirement. See Nnoli v. Nnoli, 389 Md. at 324 , 884 A.2d 1215 (“An order that is not a final judgment is an interlocutory order and ordinarily is not appealable unless it falls within one of the statutory exceptions set forth in § 12-303.”); Salvagno v. Frew, 388 Md. at 615 , 881 A.2d 660 ; In re Samone H., 385 Md. 282 , 316 n. 13, 869 A.2d 370 (2005); In re Damon M., 362 Md. 429, 434 , 765 A.2d ¹³⁵ 624 (2001). The present case does not remotely involve § 12-303 or any of its immediately appealable interlocutory orders.

B. Judicially Certified Appeals The second of the statutory exceptions to the final judgment requirement is set forth in Maryland Rule of Procedure 2-602. 2 The special function of this exception was well explained by Judge Raker in Nnoli v. Nnoli, 389 Md. at 328 , 884 A.2d 1215 . Under Md. Rule 2-602(b), in certain circumstances, a party may appeal from a judgment not disposing of an entire action and one that is not otherwise a final judgment. This Rule applies to actions involving multiple claims or multiple parties in which a judgment is entered as to fewer than all the parties involved or all the claims in the action. Quartertime Video v. Hanna, 321 Md. 59, 64 , 580 A.2d 1073, 1075 (1990).

Under this Rule, if the trial court finds expressly in a written order that there is no just reason for delay, the court can order entry of a final judgment as to fewer than all of the claims or parties in the action. We have often noted that the discretion afforded under this rule ¹³⁶ is of “limited nature.” and is “to be reserved for the Very infrequent harsh case.’ ” (Emphasis supplied). See also St. Mary’s County v. Lacer, 393 Md. 415, 425-26 , 903 A.2d 378 (2006); Smith v. Lead Industries Association, Inc., 386 Md. 12, 21-27 , 871 A.2d 545 (2005); Medical Mutual v. Evander, 331 Md. 301, 308 , 628 A.2d 170 (1993); Diener Enterprises v. Miller, 266 Md. 551, 556 , 295 A.2d 470 (1972). Maryland Rule 2-602 is not remotely involved in the present case.

Ms. Kurstin relies expressly and exclusively upon the third of the exceptions, the collateral order doctrine. The Birth of the Collateral Order Doctrine This third exception to the final judgment requirement, as a product of caselaw, is a common law phenomenon. Although there may have been earlier distant rumblings or antecedent harbingers, the collateral order doctrine, certainly by that name and as a phenomenon worthy of the appellation “doctrine,” was born in 1949 in the Supreme Court opinion of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47 , 69 S.Ct. 1221 , 93 L.Ed. 1528 . The birth pangs were not protracted, for this threshold issue of appealability commanded, in the course of a much longer opinion, less than two full pages in the United States Reports.

In a stockholder’s derivative action, in federal court because of diversity of citizenship, the defendant corporation moved to have imposed on the stockholder plaintiff a New Jersey state requirement that the plaintiff post security for reasonable expenses, including attorneys’ fees, in case the suit should prove unsuccessful. After the Court of Appeals for the Third Circuit had ordered that the security be posted, the plaintiff applied for certiorari to the Supreme Court. It was granted. Justice Jackson’s opinion made it clear that the case before the Supreme Court would not literally qualify as a final judgment.

At the threshold we are met with the question whether the District Court’s order refusing to apply the statute was an appealable one. Title 28 U.S.C. § 1291 provides ... for ¹³⁷ appeal only “from all final decisions of the district courts,” except when direct appeal to this Court is provided.... It is obvious that, if Congress had allowed appeals only from those final judgments which terminate an action, this order would not be appealable. 337 U.S. at 545 , 69 S.Ct. 1221 (emphasis supplied). In then analyzing the limited scope of appealability, the Supreme Court ascribed a purpose to its controlling statute indistinguishable from the purpose for our controlling statute regularly subscribed to by the Maryland courts.

The federal statute on appealability, Title 28 U.S.C., § 1291 , parallels almost precisely Maryland’s CJP Article, § 12-301. 3 The effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. ... Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge.

The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results. 337 U.S. at 546 , 69 S.Ct. 1221 (emphasis supplied). As it then prepared to give birth to the collateral order doctrine, the Supreme Court noted that the literal issue before it did not involve the ultimate merits of the main case and ¹³⁸ would furthermore be unreviewable at an appeal of the final judgment. But this order of the District Court did not make any step toward final disposition of the merits of the case and will not be merged in final judgment. When that time comes, it will be too late effectively to review the present order, and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably.

We conclude that the matters embraced in the decision appealed from are not of such an interlocutory nature as to effect, or to be affected by, decision of the merits of this case. 337 U.S. at 546 , 69 S.Ct. 1221 (emphasis supplied). The Court then carved out the special doctrine that would thereafter apply to this “small class” of cases. This decision appears to fall 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. ... We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.

But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. 337 U.S. at 546-47 , 69 S.Ct. 1221 (emphasis supplied). The Supreme Court had occasion to revisit the collateral order doctrine in Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978), on this second occasion holding that resort to the doctrine was not available. Justice Stevens’s unanimous opinion pointed out that the order refusing to certify a class action in that case was not a final judgment according to 28 U.S.C. § 1291 and would have to qualify, if qualify it could, pursuant to the collateral order doctrine.

Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that “ends the ¹³⁹ litigation on the merits and leaves nothing for the court to do but execute the judgment.” An order, refusing to certify, or decertifying, a class does not of its own force terminate the entire litigation because the plaintiff is free to proceed on his individual claim. Such an order is appeal-able, therefore, only if it comes within an appropriate exception to the final-judgment rule. In this case respondents rely on the “collateral order” exception articulated by this Court in Cohen v. Beneficial Industrial Loan Corp. 487 U.S. at 467-68, 98 S.Ct. 2454 (emphasis supplied). The Court reiterated the required credentials for membership in the “small class” of decisions eligible for immediate review under the collateral order doctrine.

To come within the “small class” of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. 437 U.S. at 468 , 98 S.Ct. 2454 . The Court then spelled out why the class certification request being considered failed to qualify for an immediate appeal under the collateral order doctrine. An order passing on a request for class certification does not fall in that category. First, such an order is subject to revision in the District Court.

Second, the class determination generally involves considerations that are “enmeshed in the factual and legal issues comprising the plaintiffs cause of action. ” Finally, an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members. For these reasons, as the Courts of Appeals have consistently recognized, the collateral-order doctrine is not applicable to the kind of order involved in this case. 437 U.S. at 469 , 98 S.Ct. 2454 (emphasis supplied). In the years since Coopers and Lybrand in 1978, the Supreme Court has regularly dealt with the collateral order ¹⁴⁰ doctrine, in almost every case by way of denying immediate appealability. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374-78 , 101 S.Ct. 669 , 66 L.Ed.2d 571 (1981); Flanagan v. United States, 465 U.S. 259, 262-70 , 104 S.Ct. 1051 , 79 L.Ed.2d 288 (1984); Richardson-Merrell Inc. v. Roller, 472 U.S. 424, 429-40 , 105 S.Ct. 2757 , 86 L.Ed.2d 340 (1985); Van Cauwenberghe v. Biard, 486 U.S. 517, 521-30 , 108 S.Ct. 1945 , 100 L.Ed.2d 517 (1988); Midland Asphalt v. United States, 489 U.S. 794, 798-801 , 109 S.Ct. 1494 , 103 L.Ed.2d 879 (1989); Lauro Lines v. Chasser, 490 U.S. 495 , 497-501, 109 S.Ct. 1976 , 104 L.Ed.2d 548 (1989); Digital Equipment v. Desktop Direct, 511 U.S. 863, 867-84 , 114 S.Ct. 1992 , 128 L.Ed.2d 842 (1994); Swint v. Chambers County Commission, 514 U.S. 35 , 41 — 43, 115 S.Ct. 1203 , 131 L.Ed.2d 60 (1995); Cunningham v. Hamilton County, 527 U.S. 198, 203-10 , 119 S.Ct. 1915 , 144 L.Ed.2d 184 (1999); Will v. Hallock, 546 U.S. 345, 349-55 , 126 S.Ct. 952 , 163 L.Ed.2d 836 (2006); Ashcroft v. Iqbal, 556 U.S.-, ---, 129 S.Ct. 1937, 1945-56 , 173 L.Ed.2d 868, 879-91 (2009); Mohawk Industries Inc. v. Carpenter, 558 U.S.-, 130 S.Ct. 599 , 175 L.Ed.2d 458 (2009).

Maryland Reception of the Collateral Order Doctrine Maryland first adopted the collateral order doctrine in the opinion of Judge Orth for the Court of Appeals in Jolley v. State, 282 Md. 353 , 384 A.2d 91 (1978). The Court there held that a pretrial order that an accused was incompetent to stand trial was immediately appealable under the persuasive authority 4 of Cohen v. Beneficial Loan Corp. The order was treated as a collateral order subject to immediate appeal under the doctrine. A decision that an accused is incompetent to stand trial appears to fall in that small class which finally determines claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review ¹⁴¹ and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. See Cohen v. Beneficial Loan Corp. Like the order in Cohen, the order here is a final disposition of a, claimed right which is not an ingredient of the cause of action and does not require consideration with it; it does not make any step toward final disposition of the merits of the case and will not be merged in final judgment.

What the Court said in Colien is applicable here: “When that time comes, it will be too late effectively to review the present order, and the rights conferred by the [constitutions] ... will have been lost, probably irreparably. We conclude that the matters embraced in the decision appealed from are not of such an interlocutory nature as to affect, or to be affected by, decision of he merits of this case.” 282 Md. at 357 , 384 A.2d 91 (emphasis supplied). Stewart v. State, 282 Md. 557 , 386 A.2d 1206 (1978), followed immediately in the slipstream of Jolley . The Court of Appeals held that the denial of a claimed Sixth Amendment speedy trial right was not immediately appealable.

The standard of measurement employed was the collateral order doctrine. [W]e have recognized and applied the final judgment rule’s “collateral order” exception articulated in Cohen v. Beneficial Industrial Loan Corp., supra. Jolley v. State, 282 Md. 353 , 384 A.2d 91 (1978). 282 Md. at 571, 386 A.2d 1206 . The collateral order doctrine was first applied in a civil case in Maryland in Peat v. Los Angeles Rams, 284 Md. 86 , 394 A.2d 801 (1978). The defendant, Peat & Co., had requested an order to require the law firm representing the Los Angeles Rams to withdraw from the case because one of its partners might be called as a witness in the underlying negligence action.

When that motion was denied, Peat sought to take an immediate appeal pursuant to the collateral order doctrine. In holding that the denial of the disqualification ruling was not immediately appealable, Judge Digges’s opinion stressed that the doctrine’s exemption from the normal finality requirement ¹⁴² was “narrow in scope” and must come, if it is to qualify, within the “small class” of cases that meets each of four requirements. This doctrine, recently applied in the criminal context by this Court in Stewart v. State and Jolley v. State was first articulated by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp. The concept is narrow in scope, however, for, as the Supreme Court has articulated, if the order is to come within the “small class” of cases included in the final judgment rule under Cohen it must meet four requirements: [ (1) ] conclusively determine the disputed question, [ (2) ] resolve an important issue[, (3) be] completely separate from the merits of the action, and [ (4) ] be effectively unreviewable on appeal from a final judgment.” 284 Md. at 91-92 , 394 A.2d 801 (emphasis supplied). The Court of Appeals further explained in Public Service Comm’n v. Patuxent Valley, 300 Md. 200, 206 , 477 A.2d 759 (1984), that the collateral order doctrine “treats as final and appealable a limited class of orders which do not terminate the litigation in the trial court.” The flood of cases involving the collateral order doctrine that followed was fast and furious.

Clark v. Elza, 286 Md. 208, 212-13 , 406 A.2d 922 (1979); News American v. State, 294 Md. 30, 45-46 , 447 A.2d 1264 (1982); Mann v. State’s Attorney for Montgomery County, 298 Md. 160, 163-65 , 468 A.2d 124 (1983); Kawamura v. State, 299 Md. 276 , 282 n. 5, 473 A.2d 438 (1984); Harris v. David S. Harris, P.A., 310 Md. 310, 315-16 , 529 A.2d 356 (1987); Bunting v. State, 312 Md. 472, 476-77 , 540 A.2d 805 (1988). The doctrine had gained firm traction in Maryland. Conceptualizing the Collateral Order Doctrine Although discussions of the collateral order doctrine almost inevitably lapse into the slack usage of referring to instances of immediate appealability as exceptions to or exemptions from the normal final judgment requirement, these instances of immediate appealability are better conceptualized simply as unorthodox varieties of final judgments. In Midland Asphalt ¹⁴³ Corp. v. United States, 489 U.S. 794, 798 , 109 S.Ct. 1494 , 103 L.Ed.2d 879 (1989), Justice Scalia explained that appealable collateral orders are considered to be “final judgments.” In Cohen v. Beneficial Industrial Loan Corp. (1949), we carved out a narrow exception to the normal application of the final judgment rule, which has come to be known as the collateral order doctrine.

This exception considers as “final judgments, ” even though they do not “end the litigation on the merits,” decisions “which finally determine claims of right separate 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 jurisdiction be deferred, until the whole case is adjudicated.” (Emphasis supplied). In Digital Equipment v. Desktop Direct, 511 U.S. 863, 867 , 114 S.Ct. 1992 , 128 L.Ed.2d 842 (1994), Justice Souter also undertook an effort at proper conceptualization. The collateral order doctrine is best understood not as an exception to the “final decision” rale laid down by Congress in § 1291, but as a “practical construction” of it, Cohen, supra, at 546[, 69 S.Ct. 1221 ], We have repeatedly held that the statute entitles a party to appeal not only from a district court decision that “ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment,” but also from a narrow class of decisions that do not terminate the litigation, but must, in the interest of “achieving a healthy legal system,” nonetheless be treated as “final.” (Emphasis supplied). In Dawkins v. Baltimore City Police Dept., 376 Md. 53, 64 , 827 A.2d 115 (2003), the Court of Appeals accepted, albeit with a touch of mild pique, this conceptualization: The collateral order doctrine is based upon a judicially created fiction, under which certain interlocutcrry orders are considered to be final judgments, even though such orders dearly a,re not final judgments.

The justification ¹⁴⁴ for the fiction is a perceived necessity, in “a very few ... extraordinary situations, ” for immediate appellate review. (Emphasis