* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51061

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CHARLES ROARK; MILTON DUNTLEY; ERNIE LOPEZ

Appellants

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 3:07-CR-1761

Before PRADO, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

This is an appeal by Charles Roark, Milton “Mickey” Duntley, and Ernie

Lopez (collectively “Appellants”) from an order disqualifying their counsel, Mary

Stillinger, from representing multiple Appellants. The United States District

Court for the Western District of Texas held that: (1) Texas Disciplinary Rule of

Professional Conduct 1.06 gave the Government standing to challenge

Stillinger’s potential conflict of interest, and authorized the courtto consider the

merits of that challenge; (2) it had “anomalous jurisdiction” to entertain the

United States Court of Appeals

Fifth Circuit

F I L E D

August 6, 2008

Charles R. Fulbruge III

Clerk
No. 07-51061

1 As a result, we need not reach the question of whether the Government had standing

to raise Stillinger’s alleged conflict at this stage.

2

merits of the Government’s Motion to Disqualify; and (3) at a minimum, a

serious potential for conflict existed, and therefore Stillinger was disqualified

from “simultaneously or serially” representing Appellants.

On appeal, Appellants contend that the district court lacked jurisdiction

to consider the Government’s Motion to Disqualify. We agree with Appellants,1

and therefore VACATE the district court’s order disqualifying Stillinger.

I. BACKGROUND

For more than three years, the Federal Bureau of Investigation (“FBI”),

advised by the United States Attorney’s Office for the Western District of Texas,

has been investigating numerous individuals suspected of federal public

corruption,fraud, and money laundering. Judge Frank Montalvo of the Western

District of Texas authorized wiretaps and issued search warrants in connection

with the FBI’s investigation. None of the wiretaps or search warrants was

issued directly against Appellants; however, communications by Duntley and

Lopez (not to each other) were intercepted by the wiretaps. All proceedings

resulting from the FBI’s investigation were docketed under Cause No. EP-06-

CR-1369-FM (“Cause No. 1369”) and overseen by Judge Montalvo.

The FBI named Duntley, Lopez, and Roark as targets in its public

corruption investigation. As a result of the FBI investigation, Appellants all

retained Mary Stillinger as their attorney. On June 4, 2007, the Government

moved to disqualify Stillinger from jointly representing Appellants in the

ongoing public corruption investigation. The Government argued that

Stillinger’s joint representation presented an actual or serious potential conflict

of interest and therefore violated Texas Disciplinary Rule of Professional
No. 07-51061

2 Rule 1.06 states: 

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a

lawyer shall not represent a person if the representation of that person: 

(1) involves a substantially related matter in which that person’s

interests are materially and directly adverse to the interests of another

client of the lawyer or the lawyer[’]s firm; or

(2) reasonably appears to be or become adversely limited by the

lawyer[’]s or law firm’s responsibilities to another client or to a third

person or by the lawyer[’]s or law firm’s own interests.

(c) A lawyer may represent a client in the circumstances described in (b) if: 

(1) the lawyer reasonably believes the representation of each client will

not be materially affected; and

(2) each affected or potentially affected client consents to such

representation after full disclosure ofthe existence, nature, implications,

andpossible adverse consequences of the common representation and the

advantages involved, if any.

(d) A lawyer who has represented multiple parties in a matter shall not

thereafter represent any of such parties in a dispute among the parties arising

out of the matter, unless prior consent is obtained from all such parties to the

dispute.

(e) If a lawyer has accepted representation in violation ofthis Rule, or if multiple

representation properly accepted becomes improper under this Rule, the lawyer

shall promptly withdraw from one or more representations to the extent

necessary for any remaining representation not to be in violation ofthese Rules.

(f) If a lawyer would be prohibited by this Rule from engaging in particular

conduct, no other lawyer while a member or associated with that lawyer’s firm

may engage in that conduct.

3

Conduct 1.06.2 The Government filed its motion under Cause No. 1369, which

the district court created for all criminal proceedings resulting from the FBI’s

investigation. As of the date of oral argument in this case, the Government has

not charged Appellants with any crimes. Further, the Government has not

initiated any judicial proceedings against them, served them with process,

brought them before a grand jury, or otherwise brought them before the court

in Cause No. 1369. 

Stillinger filed a Response to Motion to Disqualify, which opposed her

disqualification and moved to strike the Government’s Motion to Disqualify from

the record with leave to re-file under a separate, miscellaneous cause number.
No. 07-51061

3 The Western District of Texas has incorporated Rule 1.06 into its local rules.

Comment 17 to Rule 1.06 states:

Raising questions of conflict of interest is primarily the responsibility of the

lawyer undertaking the representation . . . . In a criminal case, inquiry by the

court is generally required when a lawyer represents multiple defendants.

Where the conflict is such as clearly to call in[to] question the fair or efficient

administration of justice, opposing counsel may properly raise the question.

Such an objection should be viewed with great caution, however, for it can be

misused as a technique of harassment.

Tex. Disciplinary R. Prof’l Conduct 1.06, reprinted in TEX. GOV’T CODE ANN., tit. 2,

subtit. G app. A (Vernon 2005) (hereinafter “TDRPC”).

4 The district court cited Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974) as

“recognizing a district court’s firmly established jurisdiction to order suppression of evidence

or return of property before indictment and noting that such exceptional jurisdiction to

adjudicate matters before an investigation has actually yielded an indictment derives from the

court’s inherent authority over those who are its officers.” 

5 On July 27, 2007, Stillinger filed another motion asking the district court to clarify

several issues discussed in its order disqualifying her from representing Appellants. To clarify

its prior order, the district court advised Stillinger that she may meet with and counsel

Appellants regarding the content and consequences of the order disqualifying Stillinger, and

that she may represent one or more of Appellants on appeal. But if she did so, Appellants were

4

Stillinger contended thatthe disqualification motion was properly the subject of

a separate proceeding.

The district court found that Comment 17 to Rule 1.06 “clearly [gave] the

Government standing to alert the Court to conflicts of interest and similarly

authorize[d] the Court to act to remedy any such situation.”3 The district court

also found it had “anomalous jurisdiction,” which gave it the “authority to

entertain the merits of matters arising from federal criminal investigations

under its supervision, regardless of whether the targets of such investigation

[were] actually under indictment.”4 The district court then considered the merits

of the alleged conflict and granted the Government’s Motion to Disqualify. It

also granted Stillinger’s motion to strike and directed the clerk to create a new,

miscellaneous cause number (EP-07-CR-1761-FM (“Cause No. 1761”)), transfer

the court’s disqualification order and all related pleadings to the new cause

number, and assign the new cause number to the district court.5 The order
No. 07-51061

required to retain separate counsel for the FBI’s ongoing criminal investigation. Finally, the

district court denied Stillinger’s requestthattheGovernment andits agents be prohibited from

attempting to communicate with Appellants while they retained new counsel.

6TheGovernment contends, however,that mandamus reliefis inappropriate evenifthe

district court acted without any jurisdiction to deprive Appellants of their chosen counsel.

Because of our conclusion that we have jurisdiction on direct appeal, we need not reach this

issue.

5

disqualifying Stillinger resolved all matters pending in Cause No. 1761, and this

appeal was taken from the order entered in Cause No. 1761.

II. DISCUSSION

A. Appellate Jurisdiction

The Government challenges the Court’s authority to grant relief to

Appellants on direct appeal, although it concedes thatthis Court has mandamus

jurisdiction.6“This [C]ourt necessarily has the inherent jurisdiction to

determine its own jurisdiction.” Tex. Comptroller of Pub. Accounts v. Transtexas

Gas Corp., 303 F.3d 571, 576 (5th Cir. 2002) (internal quotation marks omitted).

Under 28 U.S.C. § 1291 (2006), the federal courts of appeals have jurisdiction

over “all final decisions of the district courts . . . except where a direct review

may be had in the Supreme Court.” Firestone Tire & Rubber Co. v. Risjord, 449

U.S. 368, 373 (1981) (quoting § 1291). A final judgment is one that “ends the

litigation on the merits and leaves nothing for the court to do but execute the

judgment.” Cunningham v. Hamilton County, 527 U.S. 198, 203 (1999) (quoting

Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988); Catlin v. United

States, 324 U.S. 229, 233 (1945)). 

Stillinger’s disqualification was the only matter the district court

transferred from Cause No. 1369 to Cause No. 1761. When the district court

entered its order granting the Government’s Motion to Disqualify, there were no

remaining matters to decide under Cause No. 1761, leaving nothing more for the

district court to do other than execute the judgment. Ordinarily, a
No. 07-51061

6

disqualification motion is not a final order because it is entered in an ongoing

case with other matters yet to be resolved. Because of the relatively unique

circumstances ofthis case, nothing further remained pending in Cause No. 1761

(or even Cause No. 1369) with respect to these defendants or their counsel.

Accordingly, under the particular situation presented here, we hold that the

district court’s disqualification order is final for purposes of § 1291. Because this

is an appeal from a final decision, and direct review by the Supreme Court is not

available, we have appellate jurisdiction under § 1291.

B. The District Court’s Jurisdiction

The district court asserted two bases for its jurisdiction over the Motion

to Disqualify: (1) inherent authority to regulate attorneys’ conflicts of interest,

and (2) anomalous jurisdiction. We will address in turn each purported basis for

the district court’s jurisdiction.

1. Inherent Authority

The Government argues thatthe district court had “inherent jurisdiction”

to entertain its Motion to Disqualify. The Government relies heavily on Woods

v. Covington County Bank, 537 F.2d 804 (5th Cir. 1976), where we stated that

“a [d]istrict [c]ourt is obliged to take measures against unethical conduct

occurring in connection with any proceeding before it.” Id. at 810 (emphasis

added). Stillinger’s potential conflict of interest arguably arose out of a pending

criminal investigation furthered by court-ordered warrants and wiretaps.

Because of the district court’s “supervisory role” in the investigation, the

Government contends that the district court had jurisdiction to exercise its

inherent authority over Stillinger’s alleged conflict of interest. 

Appellants argue thatinherent authority does not give a courtjurisdiction

over individuals not otherwise before it. In other words, a district court’s

inherent authority is properly exercised only when the court is acting in a

proceeding already pending before it. 
No. 07-51061

7

The United States Supreme Court has explained inherent judicial power

as follows: 

It has long been understood that “[c]ertain implied powers must

necessarily result to our Courts of justice from the nature of their

institution”. . . . For this reason, “Courts of justice are universally

acknowledged to be vested, by their very creation, with power to

impose silence, respect, and decorum, in their presence, and

submission to their lawful mandates.” These powers are “governed

. . . by the control necessarily vested in courts to manage their own

affairs so as to achieve the orderly and expeditious disposition of

cases.”

Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (citations omitted). “Because

of their very potency, inherent powers must be exercised with restraint and

discretion.” Id. at 44. 

Within the scope of inherent power is a federal court’s authority “to

determine who may practice before [it] and to regulate the conduct of those who

do.” United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976). “Since

attorneys are officers of the courts before which they appear, such courts are

necessarily vested with the authority, within certain limits,to control attorneys’

conduct.” Id. at 1219 (emphasis added); see also United States v. Gopman, 531

F.2d 262, 266 (5th Cir. 1976). 

We have recognized a district court’s inherent authority to take measures

against conflicts of interest when they arise “in connection with any proceeding

before it.” Woods, 537 F.2d at 810. For example, in In re American Airlines, 972

F.2d 605 (5th Cir. 1992), the district court refused to disqualify American

Airlines’ former counsel from representing its competitor in antitrust litigation

against it. 972 F.2d at 608. On appeal, this court recognized that if American

Airlines’ former counsel committed an ethical violation by representing its

adversary in the underlying antitrust litigation, then the district court was

obligated to take measures against that conduct. Id. at 611. In Gopman, we
No. 07-51061

8

recognized a district court’s inherent authority to regulate conflicts of interest

beyond the trial setting, holding that “as an incident of [its] supervisory power,

a [district] court has jurisdiction to discipline an attorney whose unethical

conduct relates to a grand jury proceeding within that court’s control.” In re

Gopman, 531 F.2d at 266.

We have never held that a district court may exercise its inherent

authority to regulate conflicts of interests arising in the isolated context of an

ongoing criminal investigation where the only relationship to the court is its

issuance of warrants and wiretap authorizations related to targets not

represented by the counsel in question. We decline to so hold in this case. The

proper exercise of inherent authority presumes an underlying proceeding within

the court’s control, a reason separate from the alleged conflict of interest. 

In the present case, no such underlying proceeding exists. Neither

Stillinger nor Appellants have ever appeared, nor have they been asked to

appear, before the district courtin any criminal proceeding affiliated or allegedly

arising from Cause No. 1369. Stillinger’s appearance was sought in Cause No.

1369, which was severed into Cause No. 1761, only in connection with the

Government’s Motion to Disqualify, no other matter. Appellants have not been

charged with a crime, nor have grand jury proceedings been initiated against

them, nor have they been called to appear as grand-jury witnesses. Stillinger’s

alleged potential conflict of interest existed only in the context of an ongoing

criminal investigation monitored and supervised by the FBI, which is

independent and separate from any proceeding occurring before the district

court. Accordingly, the district court’s inherent authority was an improper basis

to assert jurisdiction over the Government’s Motion to Disqualify.

We understand the district judge’s laudable concern about potential

conflicts of interest in an ongoing criminal investigation. However, this holding

does not leave the district court or the Government’s attorneys completely
No. 07-51061

9

powerless to act. Lawyers have an obligation to report violations of “applicable

rules of professional conduct that raise[] a substantial question as to that

lawyer’s honesty, trustworthiness or fitness as a lawyer” to the appropriate

disciplinary authority. TDRPC 8.03(a). Both the State Bar of Texas and the

Western District of Texas have grievance procedures whereby an attorney can

be charged with unethical conduct and appropriate proceedings under the

applicable rules can transpire. Tex. Rs. Disciplinary P. 1.02, 2.10-3.16, reprinted

in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A-1 (Vernon Supp. 1997); W.D.

Tex. R. AT-7.

2. Anomalous Jurisdiction

Appellants contend that anomalous jurisdiction does not exist to disqualify

counsel and has only been invoked in cases involving the seizure of property by

federal agents. Even if anomalous jurisdiction could be invoked, Appellants

argue that the prerequisite factors for anomalous jurisdiction could not be

satisfied by the facts surrounding this case. The Government concedes that

anomalous jurisdiction does not apply to the present case, and argues that the

district court merely “intended to invoke the inherent authority from which

anomalous jurisdiction springs.” 

Anomalous jurisdiction is one basis for a court’s inherent authority to act.

In re Grand Jury Proceedings, 115 F.3d 1240, 1246 (5th Cir. 1997). It is defined

as a district court’s “power to order the suppression or return of unlawfully

seized property even though no indictment has been returned and thus no

criminal prosecution is yetin existence.” Id. (quoting Hunsucker v. Phinney, 497

F.2d 29, 32 (5th Cir. 1974)). The present case does not involve unlawfully seized

property. Considering both the facts of this case and the Government’s

concession on this issue, we hold that the district court did not have anomalous

jurisdiction to entertain the Government’s Motion to Disqualify.

III. CONCLUSION
No. 07-51061

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We hold that neither the district court’s inherent authority nor anomalous

jurisdiction were appropriate jurisdictional bases for the district court to

entertain the Government’s Motion to Disqualify. No other basis for the district

court’s jurisdiction has been raised. We VACATE the district court’s order

disqualifying Stillinger and REMAND with instructions to dismiss the case for

lack of jurisdiction.