CourtListener 10679816

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314 Ga. 823
FINAL COPY

S21G1281. BUCKNER-WEBB et al. v. THE STATE.

LAGRUA, Justice.

We granted certiorari in this case to determine whether a trial

court’s order denying a motion to withdraw as counsel based on

alleged conflicts of interest is immediately appealable under the

collateral order doctrine. For the reasons that follow, we conclude

that such orders do not fall within the “very small class” of trial court

orders that are appealable under that doctrine, Duke v. State, 306

Ga. 171, 172 (1) (829 SE2d 348) (2019), and thus we affirm the Court

of Appeals’ decision in Buckner-Webb v. State, 360 Ga. App. 329 (861

SE2d 181) (2021), albeit for different reasons.

1. Pertinent Facts and Procedural History

In March 2013, Diane Buckner-Webb, Theresia Copeland,

Sharon Davis-Williams, Tabeeka Jordan, Michael Pitts, and Shani

Robinson (collectively, “Defendants”) were indicted by a Fulton
County grand jury, along with 35 other educators and

administrators of the Atlanta Public Schools (“APS”), for conspiracy

to violate the Georgia Racketeer Influenced and Corrupt

Organizations (“RICO”) Act, OCGA § 16-14-1 et seq., and other

crimes, arising out of their alleged participation in a conspiracy to

alter students’ standardized test scores. Of the 35 indicted, 12 APS

employees, including Defendants, were tried together between

August 2014 and April 2015. In April 2015, the jury found

Defendants and five others guilty of at least one count of conspiracy

to violate the RICO Act.

In April and May 2015, Defendants filed timely motions for

new trial through their respective trial attorneys. The trial

transcripts were filed into the record between June 2015 and

October 2016. Thereafter, despite the fact that each Defendant was

represented by a separate attorney at trial, the Circuit Public

Defender appointed only one attorney, Stephen R. Scarborough, to

2
jointly represent Defendants as appellate counsel, and he formally

entered an appearance on Defendants’ behalf on April 26, 2017.

The trial court held a status hearing on Defendants’ motions

for new trial in December 2018. Following the status hearing,

Defendants were given six months to file particularized motions for

new trial, and the State was given six months to respond.

On June 28, 2019, more than two years after Scarborough’s

appointment as appellate counsel for Defendants and around the

time Defendants’ particularized motions for new trial were due for

filing, Scarborough filed a “Motion for Rule 1.7[1] Determinations” to

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1 Rule 1.7 of the Georgia Rules of Professional Conduct found in Bar

Rule 4-102 provides:
(a) A lawyer shall not represent or continue to represent a client if
there is a significant risk that the lawyer’s own interests or the
lawyer’s duties to another client, a former client, or a third person
will materially and adversely affect the representation of the
client, except as permitted in (b).
(b) If client informed consent is permissible a lawyer may
represent a client notwithstanding a significant risk of material
and adverse effect if each affected client or former client gives
informed consent, confirmed in writing, to the representation
after:
(1) consultation with the lawyer, pursuant to Rule 1.0 (c);
(2) having received in writing reasonable and adequate
information about the material risks of and reasonable
available alternatives to the representation[;] and
3
address alleged conflicts of interest arising from his joint

representation of Defendants. Scarborough also filed a motion to

withdraw as counsel based upon this conflict of interest. The trial

court heard the motion to withdraw on August 8, 2019.2

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(3) having been given the opportunity to consult with
independent counsel.
(c) Client informed consent is not permissible if the representation:
(1) is prohibited by law or these rules;
(2) includes the assertion of a claim by one client against
another client represented by the lawyer in the same or
substantially related proceeding; or
(3) involves circumstances rendering it reasonably unlikely
that the lawyer will be able to provide adequate
representation to one or more of the affected clients.
(d) Though otherwise subject to the provisions of this rule, a part-
time prosecutor who engages in the private practice of law may
represent a private client adverse to the state or other political
subdivision that the lawyer represents as a part-time prosecutor,
except with regard to matters for which the part-time prosecutor
had or has prosecutorial authority or responsibility.
The maximum penalty for a violation of this rule is disbarment.
2 At the outset of the hearing, the trial court inquired into the more than

two-year delay in Scarborough’s filing of the motion to withdraw after his
appointment as counsel. Scarborough responded that the “regrettable” delay
was unavoidable because of the time he needed to review the voluminous
record adequately. He also explained that, while he initially believed that joint
representation was “the best and most efficient way to handle this,” he later
recognized that he had to make this motion under Rule 1.7 — irrespective of
the passage of time — because (1) his representation of Defendants was
conflicted; (2) Defendants would not waive the conflict; and (3) he could be
subject to professional discipline if he continued to jointly represent
Defendants despite this conflict. Scarborough acknowledged that “everybody
with a law degree that’s involved with this case must have seen that this was
4
In support of his request to withdraw as counsel, Scarborough

asserted that: (1) he was in “an ethically untenable position” because

his loyalty to each Defendant would require him to omit issues and

claims he would otherwise raise in the motions for new trial or, at

the very least, to argue those issues “less robustly” than he

otherwise would; (2) he had an actual conflict under Rule 1.7

because his duties to each Defendant would materially and

adversely affect his performance and legal representation of the

others; (3) as required by Rule 1.7, he met separately with

Defendants and advised them of the conflict, and Defendants

declined to waive the conflict and requested the appointment of

conflict-free appellate counsel; and (4) he contacted the General

Counsel’s Office at the State Bar of Georgia and, after describing the

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a potential problem,” but reiterated this awareness was no “substitute for
reading the record and performing as counsel.” Although the trial court
expressed frustration in the time it took Scarborough to raise the conflict issue,
particularly given the publicity surrounding the trial and the well-known fact
that Defendants “represent three levels of authority within APS,” the trial
court nevertheless allowed the motion hearing to proceed.
5
circumstances, was advised that he could not continue representing

Defendants in this case.

In response to Scarborough’s assertions, the State argued that

there was no conflict of interest in Scarborough’s representation of

Defendants on appeal. In furtherance thereof, the State asserted

that Scarborough did not provide any specificity as to the purported

conflict of interest and that any purported conflict of interest was

merely an “erroneous assumption,” unsupported by case law, and

inapplicable in a RICO conspiracy case where all of the evidence

presented was relevant to all Defendants. After hearing additional

argument from both sides, the trial court conducted an ex parte

conference in chambers for Scarborough to detail the exact nature of

the conflict of interest, which Scarborough noted he could only do “to

a degree.”3

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3 During the ex parte conference, Scarborough emphasized to the trial

court that he could not go into the specific conflicts regarding each client
because talking about one client would violate his duty of loyalty to another
client. He also explained that due to the nature of his clients’ employment
positions within APS (representing a hierarchy of high- to low-ranking
employees), he could not raise certain issues in arguing the motion for new
6
Following the ex parte conference, the trial court resumed the

hearing in open court and denied the motion to withdraw, stating

that, after “a private session with the public defender where the

public defender laid out what they term specifics about conflict,” the

court “did not find the conflict specific enough for anybody in this

case.” However, the trial court advised the parties that it would like

to “expedite the Appeals Court to look at this” and indicated it would

issue a certificate of immediate review to “ask [the Court of Appeals]

to take this issue up.”4 On August 21, 2019, the trial court entered

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trial, as the issues would benefit one client at the expense of the others.
4 Of note, during the ex parte conference, the trial court had inquired of

Scarborough and the other conflict public defenders present whether the
Circuit Public Defender appointed only one attorney to represent Defendants
“in an effort to save money” and, if so, where the Public Defender was “going
to get the money” to hire and appoint “private conflict” counsel for the six
Defendants. Scarborough and the other attorneys present expressed their
inability to respond, stating it was “above [their] pay grade.” At the close of
the public hearing, the trial court asked Scarborough for “a detailed report on
the indigency” of each Defendant and “exactly what information they gave
[Scarborough] to be declared indigent for [him] to represent them.”
Scarborough stated that Defendants “have completed that process” and “have
been determined to be indigent,” to which the trial court responded, “I would
like all the information that was the basis of that, because, if this happens, it
is going to cost a million dollars for the State to fund new representation for
all these people[,]” and “they have a duty to show under oath that they are
indigent.” The State then asked when Defendants completed the process, to
which Scarborough responded, “It is not within the State’s purview to inquire
7
a written order denying the motion to withdraw, stating simply that

“[f]or the reasons stated at the [August 8, 2019] hearing, the motion

is hereby denied.” On the same date, the trial court issued a

certificate of immediate review under OCGA § 5-6-34 (b).5

Defendants filed an application for interlocutory review in the

Court of Appeals on September 3, 2019, seeking permission to

appeal the trial court’s order denying the motion to withdraw under

OCGA § 5-6-34 (b). Before the Court of Appeals ruled on Defendants’

application, Defendants also filed a direct appeal of the trial court’s

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about their eligibility.” The trial court emphasized that it wanted “somebody
to inquire about it other than [Scarborough] just making the statement,”
explaining that “[i]f [the Court of Appeals] agree[s] with you, then the thing
has to start over, and there needs to be a detailed financial record of assets for
[Defendants] and tax returns.”
5 Under OCGA § 5-6-34 (b),

[w]here the trial judge in rendering an order, decision, or judgment, not
otherwise subject to direct appeal, including but not limited to the denial
of a defendant’s motion to recuse in a criminal case, certifies within ten
days of entry thereof that the order, decision, or judgment is of such
importance to the case that immediate review should be had, the
Supreme Court or the Court of Appeals may thereupon, in their
respective discretions, permit an appeal to be taken from the order,
decision, or judgment if application is made thereto within ten days after
such certificate is granted.
8
order on September 20, 2019, asserting that the order was directly

appealable under the collateral order doctrine.

The Court of Appeals denied Defendants’ application for

interlocutory review on September 25, 2019.6 On June 29, 2021, in

a split decision issued by the whole court, the Court of Appeals also

dismissed Defendants’ direct appeal for lack of jurisdiction,

concluding that the collateral order doctrine did not apply to the trial

court’s order denying the motion to withdraw as counsel. See

Buckner-Webb, 360 Ga. App. at 331. Defendants then filed a second

petition for a writ of certiorari in this Court, which we granted on

December 14, 2021, to decide the first-impression legal question set

forth above.

2. Analysis

(a) Legal Backdrop

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6 On November 11, 2019, Defendants filed their first petition for
certiorari in this Court, seeking review of the Court of Appeals’ denial of their
application for interlocutory review. We denied the petition for certiorari on
May 18, 2020.

9
Our General Assembly has established a statutory framework

governing appeals in Georgia. See Rivera v. Washington, 298 Ga.

770, 777-778 (784 SE2d 775) (2016). See also OCGA § 5-6-34.

OCGA § 5-6-34 governs what trial court orders may
be reviewed immediately by an appellate court.
Specifically, subsection (a) of the statute lists the trial
court judgments and orders that may be appealed
immediately. This list includes all final judgments where
the case is no longer pending in the court below [except as
provided in OCGA § 5-6-35].

Duke, 306 Ga. at 172 (1) (citation and punctuation omitted). This

list also includes “specific types of trial court rulings that the

General Assembly has deemed important enough to the case, or

dispositive enough of the case, to warrant an immediate appeal,

even though such rulings are often interlocutory rather than final

judgments.” Rivera, 298 Ga. at 773 (citing OCGA § 5-6-34 (a) (2)-

(13) (citation and punctuation omitted)). See also In re Paul, 270

Ga. 680, 682 (513 SE2d 219) (1999) (OCGA § 5-6-34 (a) (2)-(13)

allows direct appeals of “judgments or orders that may have an

10
irreparable effect on the rights of the parties, such as rulings in

contempt, injunctions, and mandamus actions.”).

Other cases can be appealed immediately only with
permission from both the trial court and the appellate
court. OCGA § 5-6-34 (b). When a trial court enters an
order, decision, or judgment not otherwise subject to
immediate appeal under OCGA § 5-6-34 (a), appeal from
that order may be had only where the trial judge certifies
within ten days of entry thereof that the order, decision,
or judgment is of such importance to the case that
immediate review should be had. Upon such certification,
the Supreme Court or the Court of Appeals may
thereupon, in their respective discretions, permit an
appeal to be taken from the order, decision or judgment.

Duke, 306 Ga. at 172 (1) (citing OCGA § 5-6-34 (b)) (punctuation

omitted). Accordingly, as a general rule, when a party seeks to

appeal a non-final order issued by a trial court before the case is

fully adjudicated below, Georgia courts require adherence to the

interlocutory procedures of OCGA § 5-6-34 (b) for appellate review.

See Rivera, 298 Ga. at 777-778.

Although the framework for appellate review has been

statutorily mandated by the General Assembly, our appellate courts

11
have nonetheless created an exception by allowing immediate

appeals of

a very small class of interlocutory rulings [that] are
effectively final in that they 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.

Duke, 306 Ga. at 172-173 (1) (citation and punctuation omitted). To

qualify for immediate appeal under this “collateral order doctrine,”7

an interlocutory order must be “effectively final” — a status we

assess by examining whether the order “resolves an issue that is

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7 This legal doctrine has its origins in federal law. See Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (69 SCt 1221, 93 LE 1528)
(1949) (establishing the concept of an appealable “collateral order” — an
interlocutory order that falls “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”). See also Mohawk Indus. v. Carpenter, 558 U.S. 100, 106 (II) (A)
(130 SCt 599, 175 LE2d 458) (2009) (citing Cohen, 337 U.S. at 546, and holding
that this legal doctrine applies to the “small class of collateral rulings that,
although they do not end the litigation, are appropriately deemed final”
(punctuation omitted)).

12
substantially separate from the basic issues to be decided at trial”;

would “result in the loss of an important right if review had to await

final judgment”; and “completely and conclusively decides the issue

on appeal such that nothing in the underlying action can affect it.”

Id. at 172, 174 (1) (citation and punctuation omitted). See also

Settendown Pub. Utility v. Waterscape Utility, 324 Ga. App. 652, 656

(751 SE2d 463) (2013) (“In determining whether a matter is subject

to effective appellate review, we ask whether the relief sought would

be barred by the entry of final judgment in the trial court.”). As part

of this review, we evaluate the entire class to which the claim

belongs to determine whether this category of claims is potentially

appealable under the collateral order doctrine. See Roberts v. State,

309 Ga. 639, 640 (1) (847 SE2d 541) (2020). See also Mohawk Indus.

v. Carpenter, 558 U.S. 100, 107 (II) (A) (130 SCt 599, 175 LE2d 458)

(2009) (holding that, to determine the applicability of the collateral

order doctrine, the inquiry should focus on “the entire category to

which a claim belongs” (citation and punctuation omitted)). For

13
example, in Roberts, we asked whether “the denial of a statutory

double jeopardy claim is appealable under the collateral order

doctrine,” ultimately concluding that an order denying such a claim

is appealable under this legal doctrine. Roberts, 309 Ga. at 640-641

(1).

We have also allowed review of appeals under the collateral

order doctrine when, for example, the order at issue permitted the

State to involuntarily medicate a defendant to render him

competent for trial or compelled a non-party newspaper reporter to

disclose information regarding his confidential sources in a murder

case.8 But we have also concluded that certain interlocutory orders

— including an order denying a motion to dismiss based on a defense

of sovereign or quasi-judicial immunity and an order denying the

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8 See, e.g., Warren v. State, 297 Ga. 810, 811 n.2 (778 SE2d 749) (2015)

(holding that a pretrial order granting the State’s motion requesting authority
to involuntarily medicate a defendant in an attempt to make him mentally
competent to stand trial was appealable under the collateral order doctrine);
In re Paul, 270 Ga. at 683 (determining that an immediate appeal of a trial
court’s order denying the statutory reporter’s privilege, see former OCGA § 24-
9-30, was authorized under the collateral order doctrine).
14
State’s motion to recuse a trial judge, among others — did not meet

the requirements of the collateral order doctrine, and thus, we did

not undertake review in those cases.9

(b) Application

In the present case, the Court of Appeals majority concluded

that the interlocutory order here — an order denying counsel’s

motion to withdraw based on an alleged conflict of interest — was

not immediately appealable under the collateral order doctrine

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9 See, e.g., Duke, 306 Ga. at 174 (1) (holding that the collateral order

doctrine did not apply to an order denying a criminal defendant’s request for
public funding for expert witnesses and investigators to aid his defense);
Rivera, 298 Ga. at 773, 777 (holding that the collateral order doctrine did not
apply to an order denying a motion to dismiss based on a defense of sovereign
or quasi-judicial immunity); State v. Cash, 298 Ga. 90, 93 (1) (b) (779 SE2d 603)
(2015) (holding that the collateral order doctrine did not apply to an order
denying the State’s motion to recuse the trial judge); Sosniak v. State, 292 Ga.
35, 40 (2) (734 SE2d 362) (2012) (holding that the collateral order doctrine did
not apply to an order denying a pretrial motion for a constitutional speedy
trial); Crane v. State, 281 Ga. 635, 635 (641 SE2d 795) (2007) (holding that the
collateral order doctrine did not apply to an order denying a motion to dismiss
the indictment pursuant to OCGA § 16-3-24.2); Thomas v. State, 276 Ga. 853,
853 (583 SE2d 848) (2003) (holding that the collateral order doctrine did not
apply to an order denying a motion for discharge and acquittal based upon an
alleged failure by the State to comply with Article IV (e) of the Interstate
Agreement on Detainers, OCGA § 42-6-20); Turner v. Giles, 264 Ga. 812, 812-
813 (1) (450 SE2d 421) (1994) (holding that the collateral order doctrine did
not apply to the pretrial denial of a claim of qualified immunity).
15
because “[Defendants] would not lose an important right” by

“waiting until the proper time for a direct appeal.” Buckner-Webb,

360 Ga. App. at 329, 330. We agree with that aspect of the Court of

Appeals’ analysis and conclusion.

However, the Court of Appeals majority opinion considered this

question only with respect to Defendants’ interest10 in being

represented by conflict-free counsel.11 See Buckner-Webb, 360 Ga.

App. at 330. The Court of Appeals was also presented with — but

declined to consider — whether counsel’s interest in avoiding a

potential ethical conflict that could violate a client’s constitutional

rights warrants collateral-order review12 — an issue we now

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10 Our appellate courts, like the federal courts, have used the terms
“right” and “interest” at different times in considering the application of the
collateral order doctrine. See, e.g., Scroggins v. Edmondson, 250 Ga. 430, 431-
432 (1) (c) (297 SE2d 469) (1982); Murphy v. Murphy, 322 Ga. App. 829, 832
(747 SE2d 21) (2013); Richardson-Merrell v. Koller, 472 U.S. 424, 434-435 (III)
(A), (105 SCt 2757, 86 LE2d 340) (1985); Cohen, 337 U.S. at 546.
11 See Garland v. State, 283 Ga. 201, 203 (657 SE2d 842) (2008) (holding

that a criminal defendant is “entitled to representation on appeal by effective,
i.e., conflict-free, counsel as a matter of constitutional law”).
12 The dissent, however, did consider this issue and concluded that

counsel’s interest justified application of the collateral order doctrine. See 360
Ga. App. at 335-336 (2) (McFadden, C. J., dissenting).
16
consider on certiorari review. We conclude that, even considering

counsel’s interest in this case, this category of orders — i.e., orders

denying a counsel’s motion to withdraw based on a conflict of

interest — is not among the “very small class” of interlocutory

rulings that can bypass the ordinary statutory procedures for

appellate review. Duke, 306 Ga. at 172 (1).

We reach this conclusion because orders denying a counsel’s

motion to withdraw based on an alleged conflict of interest are not

“effectively final,” even as to counsel’s interest, in the sense needed

to justify application of the collateral order doctrine. Duke, 306 Ga.

at 172 (1). Indeed, counsel will still have ways to obtain review of

the interest at issue in such orders — that is, counsel’s interest in

avoiding a potential ethical violation arising from conflicted

representation. See Johnson & Johnson v. Kaufman, 226 Ga. App.

77, 82 (485 SE2d 525) (1997) (concluding that there are other means

of obtaining direct appellate review, including being held in

contempt, when an order is not “directly appealable” under the

17
collateral order doctrine). See also Mohawk Indus., 558 U.S. at 107

(II) (A) (holding that if this “class of claims, taken as a whole, can be

adequately vindicated by other means,” the collateral order doctrine

will not apply).

First, an attorney who is denied permission to withdraw as

counsel based upon an alleged conflict of interest can seek to

immediately appeal that order through the interlocutory appeal

procedures established by OCGA § 5-6-34 (b). See Sosniak v. State,

292 Ga. 35, 44 (734 SE2d 362) (2012) (Nahmias, J., concurring)

(noting that, although the collateral order doctrine did not apply, the

defendants could “still obtain relief . . . through the interlocutory

appeal procedures provided by statute, see OCGA § 5-6-34 (b)”). We

acknowledge that, in this particular case, this avenue of review has

been exhausted, but it was nonetheless available and will be

available to similarly situated attorneys in future cases.13

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13 In circumstances such as the one presented in this case, trial courts

should seriously consider issuing certificates of immediate review and the
Court of Appeals should seriously consider granting interlocutory review,
especially if there is “any substantial question” as to the merits of the ruling.
18
“Another long-recognized option,” while not the most favorable,

is for an attorney to disobey the order and potentially be held in

contempt of court. Mohawk Indus., 558 U.S. at 111 (II) (B). If an

attorney’s motion to withdraw is denied and the attorney feels

strongly enough that he or she is being compelled to violate the

applicable rules of professional conduct, or otherwise imperil a

client’s constitutional rights, the attorney can refuse to comply with

the trial court’s order denying the motion to withdraw as counsel

and potentially be held in contempt for violating that order. The

attorney can then appeal directly from any resulting contempt

ruling under OCGA § 5-6-34 (a) (2). Cf. Johnson & Johnson, 226 Ga.

App. at 82 (citing Cobbledick v. United States, 309 U.S. 323, 327 (60

SCt 540, 84 LE 783) (1940), and adopting, in a civil case, “the United

States Supreme Court’s rationale that in the rare case when appeal

after final judgment will not cure an erroneous [interlocutory] order,

a party may defy the order, permit a contempt citation to be entered

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Rivera, 298 Ga. at 777.
19
against him, and challenge the order on direct appeal of the

contempt ruling” (citation and punctuation omitted)).14 See also

Mohawk Indus., 558 U.S. at 111 (II) (B) (noting that “when the

circumstances warrant it, a district court may hold a noncomplying

party in contempt,” and “[t]he party can then appeal directly from

that ruling”). We recognize that this avenue for appellate review

places the attorney in a very difficult position, but it is a means of

obtaining direct appellate review set forth in Georgia statutory law

that lifts the issue presented in this case out of the realm of non-

reviewability. See OCGA § 5-6-34 (a) (2).15

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14 In Cobbledick, the United States Supreme Court concluded that where

a non-party witness was not permitted to immediately appeal an interlocutory
order of a trial court, the witness could either await final judgment for the trial
court’s order to be reviewed by the appellate court, or “[l]et the court go further,
and punish the witness for contempt of its order, then arrives a right of review,
and this is adequate for his protection without unduly impeding the progress
of the case.” 309 U.S. at 327. See also United States v. Ryan, 402 U.S. 530,
532-533 (91 SCt 1580, 29 LE2d 85) (1971) (noting that the United States
Supreme Court has “consistently held that the necessity for expedition in the
administration of the criminal law” requires forcing a party or non-party to
make a “choice between compliance with a trial court’s order” and “resistance
to that order with the concomitant possibility of an adjudication of contempt if
his claims are rejected on appeal”).
15 Additionally, we note that, while a trial court’s power to revoke or

reconsider an interlocutory ruling in a criminal case ordinarily ends with the
expiration of the term of court in which the order was entered, an “important
20
Lastly, we acknowledge Scarborough’s specific argument that

he may face disciplinary action from the State Bar for violation of

Rule 1.7 if he is required to continue the joint representation of

Defendants, but we conclude that any such discipline is speculative

at this point.16 And, given our conclusion in this case, we need not

address that issue at this time.

We recognize that federal and other state courts have reached

different conclusions in evaluating whether to allow an appeal of an

order denying a motion to withdraw as counsel due to alleged

conflicts of interest under the collateral order doctrine.17 However,

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exception” to this rule allows “after-term reconsideration, at least of
constitutional issues, where the ‘evidentiary posture’ of the issue has changed.”
State v. Ross, 293 Ga. 834, 835 (750 SE2d 305) (2013) (quoting Moon v. State,
287 Ga. 304, 309 (2) (696 SE2d 55) (2010) (Nahmias, J., concurring)). If
additional evidence is presented in a case casting the original ruling in doubt,
a trial court would be authorized to revise it in accordance with the newly
presented facts. See generally Ross, 293 Ga. at 835-836.
16 Attorneys who have been ordered over objection to continue

representation that potentially raises ethical conflicts may be faced with
taking every step possible to avoid such violations during the representation,
including carefully representing their clients going forward by omitting issues
creating conflicts from their filings and by noting those omissions and the basis
thereof on the record.
17 See Commonwealth v. Wells, 719 A2d 729, 731 (Pa. 1998) (holding that

the collateral order doctrine did not apply in this context because a criminal
defendant has a future remedy and his right to appeal would not be lost);
21
these cases are distinguishable from the present case, and unlike

Georgia’s appellate courts, none of these courts examined whether a

governing appellate statute exists in their respective states. Even if

such statutory schemes do exist, these cases speak nothing about

the “statutory scheme for appellate review of interlocutory orders as

set out by our General Assembly in OCGA § 5-6-34”—or how the

collateral order doctrine that Georgia courts have applied fits into

that procedural framework.18 Rivera, 298 Ga. at 776. See also

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United States v. Bellille, 962 F3d 731, 737 (II) (3d Cir. 2020) (holding that an
order denying an attorney’s motion to withdraw satisfied the collateral order
doctrine because “the harm of violating one’s ethical obligations would be
complete and could not be undone after trial”); United States v. Oberoi, 331 F3d
44, 47 (I) (2d Cir. 2003) (holding that the collateral order doctrine applied
“[b]ecause the district court’s order conclusively determined the issue of the
[attorney’s] continued representation of [the defendant,]” and could not “be
effectively reviewed on final appeal”).
18 We are also aware of other federal and state cases where the appellate

courts determined that the collateral order doctrine applied to trial court
orders denying motions to withdraw as counsel, but these courts were not
considering motions based on counsel’s alleged ethical conflicts nor were they
apparently subject to an appellate statutory framework similar to Georgia’s.
The motions at issue in these cases arose from a client’s refusal to follow the
attorney’s legal advice, communicate or meet with the attorney, and/or pay the
attorneys for his or her services. See, e.g., Commonwealth v. Magee, 177 A3d
315, 321 (Pa. 2017); United States v. Barton, 712 F3d 111, 116 (I) (2d Cir. 2013);
In re Franke, 55 A3d 713, 719 (I) (Md. Ct. App. 2012); United States v. Shaw,
No. 08-6751, 2009 WL 226030 at *1 (4th Cir. Jan. 30, 2009); Commonwealth v.
Reading Group Two Properties, 922 A2d 1029, 1032-1033 (Pa. 2007); Galloway
22
American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 644-645 (732

SE2d 746) (2012) (Nahmias, J., concurring) (holding that OCGA § 5-

6-34 “is not a run-of-the-mill procedural provision,” but “a

jurisdictional law by which the General Assembly has limited the

authority of Georgia’s appellate courts to hear certain cases”

(emphasis in original)).

3. Conclusion

Accordingly, we conclude that a trial court’s order denying a

motion to withdraw as counsel based upon alleged conflicts of

interest does not fall within the “very small class” of cases that are

directly appealable under the collateral order doctrine, Duke, 306

Ga. at 172 (1), and we affirm the judgment of the Court of Appeals.

Because the “scheme for appellate interlocutory review is legislative

in nature,” should “the General Assembly determine[ ] that the

established framework does not adequately safeguard the interests”

—————————————————————
v. Clay, 861 A2d 30, 32-33 (II) (D.C. Ct. App. 2004); Fidelity Nat. Title Ins. Co.
of New York v. Intercounty Nat. Title Ins. Co., 310 F3d 537, 539 (7th Cir. 2002);
Whiting v. Lacara, 187 F3d 317, 319-320 (a) (2d Cir. 1999).

23
at stake here, “it is for that body to change it.” Rivera, 298 Ga. at

777-778.

Judgment affirmed. All the Justices concur, except Peterson, P.
J., not participating, and Colvin, J., disqualified.

PINSON, Justice, concurring.

I concur fully in the Court’s opinion because it correctly applies

our collateral-order doctrine. I write separately to highlight the

doubtful legal footing of that doctrine, which, in my view, adds

another reason to not expand its reach here.

1. As the Court explains, our collateral-order doctrine allows a

party to appeal certain categories of interlocutory rulings before

final judgment without having to use the statutory procedure for

interlocutory appeals, see OCGA § 5-6-34 (b). We applied this

doctrine for the first time in Patterson v. State, 248 Ga. 875 (287

SE2d 7) (1982), where we held that an interlocutory order denying

a plea of double jeopardy was immediately appealable “without

24
resort to” our interlocutory-appeal statute.19 Id. at 875. And later

that year, in Scroggins v. Edmondson, 250 Ga. 430 (297 SE2d 469)

(1982), we decided that the doctrine could be applied in both

criminal and civil cases.

In these cases, our Court imported the collateral-order doctrine

from federal law. In Patterson, we quoted at length and with

approval the U.S. Supreme Court’s application of the federal

collateral-order doctrine in Abney v. United States, 431 U.S. 651 (97

SCt 2034, 52 LE2d 651) (1977), which approved immediate appeals

of denials of pleas of double jeopardy, and we rested our holding on

those “considerations.” Patterson, 248 Ga. at 877. And in Scroggins,

we described our holding in Patterson as “adopt[ing] the ‘collateral

order’ exception to the final judgment rule announced in Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (69 SCt 1221, 93 LE

1528) (1949),” and offered no further justification for adding that

doctrine to Georgia law. Scroggins, 250 Ga. at 431 (1) (c).

—————————————————————
19 When we decided Patterson, the procedures for interlocutory appeals

were found at Ga. Code Ann. § 6-701 (a) (2).
25
We have flagged before the problems with “simply recit[ing]

holdings of the United States Supreme Court . . . and uncritically

import[ing] them into” Georgia law. Elliott v. State, 305 Ga. 179, 188

(II) (C) (824 SE2d 265) (2019). See also Black Voters Matter Fund,

Inc. v. Kemp, 313 Ga. 375, 391-93 (870 SE2d 430) (2022) (Peterson,

J., concurring) (calling into question our “frequent[ ]” practice of

relying on federal case law interpreting Article III of the U.S.

Constitution or adopting it “wholesale” as Georgia law “without

actually explaining why” it matters “for the different question of

Georgia standing”). The meaning of legal text—constitutional,

statutory, or otherwise—is determined “primar[ily]” by its “context,

which includes the structure and history of the text and the broader

context in which that text was enacted, including statutory and

decisional law that forms the legal background of the written text.”

City of Guyton v. Barrow, 305 Ga. 799, 805 (3) (828 SE2d 366) (2019).

So, when we need to figure out the meaning of Georgia law, decisions

of federal courts—even the U.S. Supreme Court—are helpful “only

26
to the extent that the Court’s decisions actually were guided by th[e]

same language, history, and context” of the Georgia law in question.

Elliott, 305 Ga. at 188 (II) (C). When we rely on such federal

decisions without making sure the relevant text and context match

up, we risk giving an “interpretation” of Georgia law that is

arbitrary, wrong, or both.

Unfortunately, our collateral-order doctrine could be the poster

child for this mistake. To see why, compare the relevant statutory

language and context under federal and Georgia law.

In federal law, the collateral-order doctrine is rooted in 28 USC

§ 1291, which grants federal courts of appeals “jurisdiction of

appeals from all final decisions of the district courts.” Id. (emphasis

added). The U.S. Supreme Court has explained that the doctrine

represents a “practical rather than a technical construction” of that

“final decisions” language. Mohawk Indus., Inc. v. Carpenter, 558

U.S. 100, 106 (II) (A) (130 SCt 599, 175 LE2d 458) (2009) (citing

Cohen, 337 U.S. at 546 (punctuation omitted)). Under that

27
construction, “the statute encompasses not only judgments that

‘terminate an action,’ but also a ‘small class’ of collateral rulings

that, although they do not end the litigation, are appropriately

deemed ‘final’” because they are conclusive, effectively

unreviewable, and separate from the underlying merits of the case.

Mohawk Indus., Inc., 558 U.S. at 106 (II) (A) (quoting Cohen, 337

U.S. at 546). Reasonable jurists can disagree on whether that

doctrine fits comfortably within the phrase “final decisions,” but that

language at least allows a case to be made that it encompasses more

than just final judgments that leave no claims pending below.

The same cannot be said for Georgia law. It is true that our

Court pitched the collateral-order doctrine as a “broader

construction” of Georgia’s own appellate-jurisdiction statute when

we imported the doctrine from federal law. Patterson, 248 Ga. at 877

(citing former Ga. Code Ann. § 6-701 (a), which is now OCGA § 5-6-

34 (a)). But when we imported the doctrine, we didn’t do any actual

“construction” of that statute. If we had, the problem with that move

28
would have quickly become clear. At that time, our appellate-

jurisdiction statute authorized an appeal “[w]here the judgment is

final—that is to say—where the cause is no longer pending in the

court below.” Ga. Code Ann. § 6-701 (a) (1). The current version is

similar: it authorizes an appeal from “[a]ll final judgments, that is

to say, where the case is no longer pending in the court below.”

OCGA § 5-6-34 (a) (1). It is hard to think of a clearer way to reject a

doctrine that allows appeals under this provision of orders in cases

that are still pending in the court below. And indeed, for around 140

years, our Court and the Court of Appeals have consistently held

that this language (and materially identical language in the prior

and current versions of the statute) means a judgment is not “final”

and appealable under this provision if any portion of the case

remains pending below. See Seals v. State, 311 Ga. 739, 741-42 (2)

(a) (860 SE2d 419) (2021) (tracing statutory history of OCGA § 5-6-

34 (a) and collecting cases confirming that interpretation).20 Unlike

—————————————————————
20 The eagle-eyed reader might notice that the prior version of this
statute said a judgment is final where the “cause” is no longer pending, Ga.
29
28 USC § 1291’s “final decisions” language, OCGA § 5-6-34 (a) leaves

no wiggle room for a doctrine that allows appeals when any part of

the case is still pending in the trial court.

If that language were not a clear enough rejection of a federal-

style collateral-order doctrine, the statutory structure around

OCGA § 5-6-34 (a)’s final-judgment rule is telling, too. That

structure tells us in at least two ways that our jurisdictional statutes

don’t contemplate that doctrine. First, our statute lists 12 further

categories of “judgments or orders” that can be appealed whether or

not they are “final.” OCGA § 5-6-34 (a). Including this kind of list in

our statute, which the General Assembly updates with some

regularity,21 suggests (quite strongly, I think) that the role the

—————————————————————
Code Ann. § 6-701 (a) (1), while the current version says a final judgment is
one where the “case” is no longer pending, see OCGA § 5-6-34 (a) (1). But we
equated “cause” with “case” as far back as 1883. See Zorn v. Lamar, 71 Ga. 80,
82 (1883) (holding that original version of this statute, which used the word
“cause,” meant that “as long as a defendant remains in the court below or other
issues remain untried there, the case is pending there, and no final judgment
has been had”). And we have since confirmed that this change did not
materially alter the statute’s meaning. See Seals, 311 Ga. at 742 (2) (a).
21 See, e.g., Ga. L. 2016, p. 342, § 1 (adding paragraph (a) (13): “All

judgments or orders entered pursuant to Code Section 9-11-11.1”); Ga. L. 2013,
p. 736, § 1 (modifying the language of paragraph (a) (11)); Ga. L. 2012, p. 944,
30
collateral-order doctrine plays in federal law—identifying categories

of orders that deserve appeals before final judgment—has been

reserved by and for the General Assembly.22 Second, our statute

allows parties to seek interlocutory review of a ruling if the trial

court certifies that the ruling is “of such importance to the case that

immediate review should be had.” OCGA § 5-6-34 (b). So Georgia

law provides a statutory mechanism for seeking immediate review

when important rights would be lost without it—again displacing a

basic role of the federal collateral-order doctrine.23

—————————————————————
§ 8-1 (adding paragraph (a) (12): “All judgments or orders entered pursuant to
Code Section 35-3-37”); Ga. L. 2007, p. 555, § 2 (adding paragraph (a) (11): “All
judgments or orders in child custody cases including, but not limited to,
awarding or refusing to change child custody or holding or declining to hold
persons in contempt of such child custody judgment or orders”); Ga. L. 2006, p.
382, § 2 (adding now-paragraph (a) (10): “All judgments or orders entered
pursuant to subsection (c) of Code Section 17-10-6.2”).
22 By contrast, the U.S. Congress’s message has been more mixed:

although federal law grants appellate jurisdiction over three narrow categories
of interlocutory orders, see 28 USC § 1292 (a), Congress has not updated that
list in 40 years, and it has further granted the U.S. Supreme Court power to
adopt rules either “defining when a ruling of a district court is final for the
purposes of appeal under section 1291,” Mohawk Indus., Inc., 558 U.S. at 113-
14 (II) (C) (quoting 28 USC § 2072 (c)), or “provid[ing] for an appeal of an
interlocutory decision . . . that is not otherwise provided for” under 28 USC §
1292, id. at 114 (II) (C) (quoting 28 USC § 1292 (e)).
23 Federal law offers a case-by-case safety valve for interlocutory review,

too, but a district court’s discretion to approve an order for such treatment is
31
In short, the language, context, and history of our appellate-

jurisdiction statutes are not the same as those that underpin the

federal collateral-order doctrine, and none supported importing it

into our law.

2. I do not point all of this out to suggest that we should

abandon the collateral-order doctrine—either in this case, or even in

another down the road. No one here has asked us to reconsider the

doctrine. And stare decisis may well warrant retaining the existing

decisions that apply the doctrine to allow appeals of certain

categories of interlocutory orders, which span four decades of our

case law.

But I do think the doubtful authority for importing the doctrine

at all cements the case against expanding its reach here. It is an

—————————————————————
more limited than a Georgia trial court’s. Compare 28 USC § 1292 (b) (allowing
federal court of appeals to exercise discretion to permit an appeal from an order
if the district judge states in writing that the order “involves a controlling
question of law as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation”) with OCGA § 5-6-34 (b) (allowing
interlocutory review if the trial court certifies that the ruling is “of such
importance to the case that immediate review should be had”).
32
especially troubling kind of error to arrogate to ourselves as

appellate courts the authority to bend the limits of our own power to

review cases. See Duke v. State, 306 Ga. 171, 182 (3) (c), 186-87 (4)

(829 SE2d 348) (2019) (acknowledging “core separation of powers

principle” that prevents courts from claiming authority to allow

appeals outside of statutory scheme); Gable v. State, 290 Ga. 81, 85

(2) (b) (720 SE2d 170) (2011) (“[C]ourts have no authority to create

equitable exceptions to jurisdictional requirements imposed by

statute.” (citation and punctuation omitted)). See also Cook v. State,

313 Ga. 471, 479 (2) (a) (870 SE2d 758) (2022) (overruling “judicially

creat[ed]” trial court out-of-time appeal procedure). Nor does the

error seem harmless as a practical matter. When it applies, the

collateral-order doctrine allows litigants to bypass the process for

interlocutory review that the General Assembly chose to start with

trial courts, see OCGA § 5-6-34 (b), thus “divest[ing] trial courts of

one of their essential tools for controlling litigation before them.”

Duke, 306 Ga. at 178 (3) (a), 186 (4) (“By requiring the prompt,

33
affirmative assent of the trial court before an interlocutory appeal

can proceed, OCGA § 5-6-34 (b) allows the trial court to manage

litigation before it to a conclusion except in those circumstances in

which the trial court believes that the issues presented by a litigant

need clarification by an appellate court before the case proceeds.”).

And because the doctrine allows litigants to argue for review of

categories of nonfinal orders in court, it pulls many, if not most, of

those arguments away from the legislature, which is generally

supposed to make categorical policy judgments and already does

make these particular judgments on a regular basis. See OCGA § 5-

6-34 (a). By resisting the call in this case to recognize another non-

statutory exception to our statutory final-judgment rule, the Court’s

opinion avoids perpetuating these problems.

With these things in mind, I concur fully in the Court’s opinion.

I am authorized to state that Justice Warren and Justice Bethel join

in this concurrence.

34
Decided September 20, 2022 — Reconsideration denied

October 25, 2022.

Certiorari to the Court of Appeals of Georgia — 360 Ga.

App. 329.

Stephen R. Scarborough, for appellants.

Fani T. Willis, District Attorney, Lyndsey H. Rudder,

Kevin C. Armstrong, Assistant District Attorneys, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: September 20, 2022

S21G1281. BUCKNER-WEBB et al. v. THE STATE

LAGRUA, Justice.

We granted certiorari in this case to determine whether a trial

court’s order denying a motion to withdraw as counsel based on

alleged conflicts of interest is immediately appealable under the

collateral order doctrine. For the reasons that follow, we conclude

that such orders do not fall within “the very small class” of trial court

orders that are appealable under that doctrine, Duke v. State, 306

Ga. 171, 172 (1) (829 SE2d 348) (2019), and thus we affirm the Court

of Appeals’ decision in Buckner-Webb v. State, 360 Ga. App. 329 (861

SE2d 181) (2021), albeit for different reasons.

I. Pertinent Facts and Procedural History
In March 2013, Diane Buckner-Webb, Theresia Copeland,

Sharon Davis-Williams, Tabeeka Jordan, Michael Pitts, and Shani

Robinson (collectively, “Defendants”) were indicted by a Fulton

County grand jury, along with 35 other educators and

administrators of the Atlanta Public Schools (“APS”), for conspiracy

to violate the Georgia Racketeer Influenced and Corrupt

Organizations (“RICO”) Act, OCGA § 16-14-1 et seq., and other

crimes, arising out of their alleged participation in a conspiracy to

alter students’ standardized test scores. Of the 35 indicted, 12 APS

employees, including Defendants, were tried together between

August 2014 and April 2015. In April 2015, the jury found

Defendants and five others guilty of at least one count of conspiracy

to violate the RICO Act.

In April and May 2015, Defendants filed timely motions for

new trial through their respective trial attorneys. The trial

transcripts were filed into the record between June 2015 and

October 2016. Thereafter, despite the fact that each Defendant was

2
represented by a separate attorney at trial, the Circuit Public

Defender appointed only one attorney, Stephen R. Scarborough, to

jointly represent Defendants as appellate counsel, and he formally

entered an appearance on Defendants’ behalf on April 26, 2017.

The trial court held a status hearing on Defendants’ motions

for new trial in December 2018. Following the status hearing,

Defendants were given six months to file particularized motions for

new trial, and the State was given six months to respond.

On June 28, 2019, more than two years after Scarborough’s

appointment as appellate counsel for Defendants and around the

time Defendants’ particularized motions for new trial were due for

filing, Scarborough filed a “Motion for Rule 1.7[1] Determinations” to

—————————————————————
1 Rule 1.7 of the Georgia Rules of Professional Conduct (“GRPC”) found
in Bar Rule 4-102 provides:
(a) A lawyer shall not represent or continue to represent a client if
there is a significant risk that the lawyer’s own interests or the
lawyer’s duties to another client, a former client, or a third person
will materially and adversely affect the representation of the
client, except as permitted in (b).
(b) If client informed consent is permissible a lawyer may
represent a client notwithstanding a significant risk of material
and adverse effect if each affected client or former client gives
3
address alleged conflicts of interest arising from his joint

representation of Defendants. Scarborough also filed a motion to

withdraw as counsel based upon this conflict of interest. The trial

court heard the motion to withdraw on August 8, 2019.2

—————————————————————
informed consent, confirmed in writing, to the representation
after:
(1) consultation with the lawyer, pursuant to Rule 1.0 (c);
(2) having received in writing reasonable and adequate
information about the material risks of and reasonable
available alternatives to the representation; and
(3) having been given the opportunity to consult with
independent counsel.
(c) Client informed consent is not permissible if the representation:
(1) is prohibited by law or these Rules;
(2) includes the assertion of a claim by one client against
another client represented by the lawyer in the same or
substantially related proceeding; or
(3) involves circumstances rendering it reasonably unlikely
that the lawyer will be able to provide adequate
representation to one or more of the affected clients.
(d) Though otherwise subject to the provisions of this Rule, a part-
time prosecutor who engages in the private practice of law may
represent a private client adverse to the state or other political
subdivision that the lawyer represents as a part-time prosecutor,
except with regard to matters for which the part-time prosecutor
had or has prosecutorial authority or responsibility.
The maximum penalty for a violation of this Rule is disbarment.
2 At the outset of the hearing, the trial court inquired into the more than

asserted that: (1) he was in “an ethically untenable position” because

his loyalty to each Defendant would require him to omit issues and

claims he would otherwise raise in the motions for new trial or, at

the very least, to argue those issues “less robustly” than he

otherwise would; (2) he had an actual conflict under Rule 1.7

because his duties to each Defendant would materially and

adversely affect his performance and legal representation of the

others; (3) as required by Rule 1.7, he met separately with

Defendants and advised them of the conflict, and Defendants

declined to waive the conflict and requested the appointment of

—————————————————————
recognized that he had to make this motion under Rule 1.7—irrespective of the
passage of time—because (1) his representation of Defendants was conflicted;
(2) Defendants would not waive the conflict; and (3) he could be subject to
professional discipline if he continued to jointly represent Defendants despite
this conflict. Scarborough acknowledged that “everybody with a law degree
that’s involved with this case must have seen that this was a potential
problem,” but reiterated this awareness was no “substitute for reading the
record and performing as counsel.” Although the trial court expressed
frustration in the time it took Scarborough to raise the conflict issue,
particularly given the publicity surrounding the trial and the well-known fact
that Defendants “represent three levels of authority within APS,” the trial
court nevertheless allowed the motion hearing to proceed.
5
conflict-free appellate counsel; and (4) he contacted the General

Counsel’s Office at the State Bar of Georgia and, after describing the

circumstances, was advised that he could not continue representing