W.C. Nos. 4-308-214, 4-298-765, 4-392-817, 4-332-551, 4-392-818, 4-370-749.Industrial Claim Appeals Office.
December 8, 2005.
ORDER
The claimant seeks review of an order dated April 26, 2005 of Administrative Law Judge Stuber (ALJ) that ordered the claimant’s attorney to withdraw as counsel for the claimant. We dismiss the petition to review without prejudice.
No hearing was held. The respondents filed a motion to disqualify claimant’s counsel, alleging that the respondents’ former attorney on this claim had associated with claimant’s counsel and that a conflict therefore existed that required claimant’s counsel’s disqualification. The motion was opposed on the ground that the firm had erected a “confidentiality wall” that would insure that there was no interchange of information from the respondents’ former attorney to claimant’s attorney. In connection with the opposition to the motion, the claimant’s attorney requested an evidentiary hearing.
The ALJ rejected the argument that a hearing was necessary and granted the motion, ordering disqualification of the claimant’s attorney. The ALJ reasoned that the Colorado Rules of Professional Conduct include a rule of imputed disqualification that extends a lawyer’s disqualification to other lawyers in her firm. See Colo. RPC 1.10(a). Because the respondents’ former attorney was clearly disqualified from representing the claimant, having formerly represented the respondents in the same claim, that disqualification was then imputed to claimant’s present counsel upon respondents’ former counsel’s association with his firm. The ALJ thus ordered claimant’s counsel’s disqualification, and claimant’s counsel appealed.
On appeal claimant’s counsel contends that the ALJ abused his discretion by misapplying the law in ordering his disqualification. We conclude that the order is not presently final and reviewable.
Section 8-43-301(2), C.R.S. 2004 provides that any dissatisfied party may file a petition to review “an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). Under these principles our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
On appeal the claimant’s attorney concedes that the ALJ’s order does not grant or deny benefits or statutory penalties. However, he contends that § 8-43-301(2) must be construed to afford immediate appeal of this order, or the claimant will be unconstitutionally deprived of any meaningful review. The claimant argues that under both the Due Process Clause and Article II, section 6 of the Colorado Constitution she is guaranteed a right of access to the courts, a right that includes meaningful review of orders entered below. However, the court of appeals has rejected a similar argument, stating that the constitutional right of access to the courts is not violated by the appellate requirement of finality: “We consider any delay in the right to appeal until a separate final order has been issued as a reasonable accommodation between such right to access and the legislative purpose underlying § 8-43-301(2) to avoid piecemeal appeals.” BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533, 537-38 (Colo.App. 1997).
Moreover, we view the argument as speculative that the claimant will have no right to meaningful review if required to await the entry of a final order prior to appealing this one. There is generally no right in an administrative proceeding to select any particular counsel of the party’s choice, see Kentucky West Virginia Gas Company v. Pennsylvania Public Utility Commission, 837 F.2d 600, 618 (3d Cir. 1988), and the ALJ’s order requires the claimant’s counsel to assist the claimant in procuring other counsel. It is not apparent from the record what issues in the claim remain disputed, and it is speculative when a final order will issue and whether the claimant will be aggrieved by it. We note in this respect that, although its holding is in the criminal context and thus not dispositive here, the United States Supreme Court has held that an order disqualifying counsel is not immediately appealable under the “final judgment” rule applicable in federal criminal prosecutions. Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051 (1983). The Court noted in that case that it only permitted departure from the final judgment rule where its observance “would practically defeat the right to any review at all.” Id., 465 U.S. at 265. It concluded that an order disqualifying counsel did not come within that category.
In any event, we have previously noted that we cannot review an interlocutory order solely on the basis that “there is no other adequate remedy.” See Jones v. Chicken-N-Pasta,
W.C. No. 4-197-841 (February 3, 1995). In that order we noted that the Colorado Supreme Court had recognized a “death knell” exception to the final judgment rule, where an interlocutory appeal would be taken where the substantial rights of a party could be irreparably lost if the appeal were delayed until a final order issued. However, we observed that that doctrine had not been made applicable to administrative proceedings, nor had the legislature intended such an exception to § 8-43-301(2). Absent some authority from the appellate courts to the contrary, we are not persuaded to depart from our holding in Jones.
IT IS THEREFORE ORDERED that the claimant’s petition to review is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Betty G. Gallegos, Pueblo, CO, Trane Commercial Systems Group, Pueblo, CO, Travelers Insurance, Denver, CO, Ralph Ogden, Esq., Denver, CO, (For Claimant).
Douglas A. Thomas, Esq., Greenwood Village, CO, (For Respondents).