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<pre>                    UNITED STATES COURT OF APPEALS <br>                         FOR THE FIRST CIRCUIT <br> <br>No. 98-1612 <br> <br>                       UNITED STATES OF AMERICA, <br> <br>                               Appellee, <br> <br>                                  v. <br> <br>            YAMIL H. KOURI-PEREZ, a/k/a SEALED DEFENDANT 1, <br> <br>                         Defendant, Appellant. <br> <br>                                              <br> <br>No. 98-1663 <br> <br>                       UNITED STATES OF AMERICA, <br> <br>                               Appellee, <br> <br>                                  v. <br> <br>                     YAMIL H. KOURI-PEREZ, ET AL., <br> <br>                        Defendants, Appellants, <br> <br>                                         <br> <br>                     JOAQUIN MONSERRATE-MATIENZO, <br> <br>                              Appellant. <br> <br>                                              <br> <br> <br>             APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF PUERTO RICO <br> <br>            [Hon. Jose Antonio Fust, U.S. District Judge] <br> <br>                                              <br> <br>                                Before <br> <br>                         Selya, Circuit Judge, <br> <br>                Coffin and Cyr, Senior Circuit Judges. <br> <br>                                              <br>     Martin G. Weinberg, with whom Osteri, Weinberg & Lawson, Kimberly <br>Homan and Sheketoff & Homan were on brief for appellants Cerezo, et al. <br>     Gerardo Ortiz-Del Rivero and David W. Roman, with whom Monserrate <br>Law Office was on brief for appellant Monserrate-Matienzo. <br>     Jorge E. Vega-Pacheco, Assistant United States Attorney, with whom <br>Guillermo Gil, United States Attorney, Mara Domnguez-Victoriano, <br>Assistant United States Attorney, Camille Vlez-Riv, Assistant United <br>States Attorney, and Nelson Prez-Sosa, Assistant United States <br>Attorney, were on brief for appellee. <br> <br> <br>                                              <br> <br>                              May 7, 1999 <br>                                              <br>

          CYR, Senior Circuit Judge.  Defense counsel appeal the <br>sanction imposed upon them below for filing a vexatious discovery <br>request.  We dismiss for lack of appellate jurisdiction. <br>                                I <br>                            BACKGROUND <br>          Appellants' clients were indicted in 1997 for theft of <br>federal property and money laundering.  Dealings between the <br>prosecution and defense teams were acrimonious from the start.   For <br>present purposes, we focus upon the skirmish which began when <br>Assistant United States Attorney ("AUSA") Maria Dominguez informed <br>the court that she had reason to believe that one defendant had <br>paid the retainer for codefendants' counsel.  The defense then <br>charged that AUSA Dominiguez had violated the Sixth Amendment by <br>deliberately infiltrating the defense camp. <br>          Although the district court ultimately found no evidence <br>for the infiltration theory advanced by the defense, it entered a <br>civility order "remind[ing] [counsel] that civility in litigation <br>is a value that this court will protect and enforce[,]" and <br>directed both sides thenceforth to refrain from "[d]isparaging <br>personal remarks or acrimonious conduct."   <br>          Round two began in March 1998, when  AUSA Dominguez <br>submitted a Brady report which disclosed that during March 1997 the <br>prosecution had interviewed a Dr. Joaquin Perez-Mendez in the <br>Dominican Republic and that Dr. Perez possessed information <br>favorable to the defense but refused to be deposed in Puerto Rico.  <br>Appellants then sought to depose Perez at the United States Embassy <br>in the Dominican Republic.  Absent opposition by the government, <br>the district court granted their motion. <br>          Appellants submitted a second motion one month later, for <br>permission to depose Dr. Perez at his own office, rather than the <br>United States Embassy.  The motion represented that AUSA Dominguez <br>had telephoned Dr. Perez's spouse, and told her that her husband <br>would go to prison unless he cooperated with the government.  <br>Further, appellants reported that Dr. Perez was fearful of <br>confronting AUSA Dominiguez at the United States Embassy, because <br>her "true [sur]name" was Leon-Trujillo, and she was the <br>granddaughter of the former Dominican Republic dictator, Rafael <br>Trujillo, by whom Dr. Perez's father had been confined as a <br>political prisoner.  The allegations in appellants' second motion <br>were broadcast by the media. <br>          AUSA Dominiguez promptly denied any improper threats <br>against Dr. Perez or his spouse and moved for sanctions against <br>appellants.  She objected to any implication that she used the <br>surname Dominguez to conceal her ancestry, noting that she had been <br>legally adopted in Florida as an infant.  She questioned <br>appellants' failure to contact her before filing their second <br>motion to change the location of the deposition, particularly since <br>the government never objected to appellants' unilateral choice of <br>location.  Finally, she contended that the only conceivable purpose <br>served by the second motion was to harass or humiliate her, in <br>direct violation of the civility order.  <br>          The district court issued a show-cause order, which <br>appellants claimed violated due process because it failed to <br>provide adequate notice of the precise bases upon which the court <br>was considering the imposition of sanctions.  Appellants suggested <br>in addition that their duty to represent their clients required <br>that the basis for Dr. Perez's subjective fears be reported, in <br>order that the merits of their motion might be cogently assessed by <br>the district court, even if those fears appeared irrational or <br>baseless. <br>          In due course the district court accepted AUSA <br>Dominiguez's characterization of appellants' motives, and imposed <br>a $4,000 sanction against appellants for violating its civility <br>order and to deter any future noncompliance.  The court expressly <br>stated that it was not imposing the sanction pursuant to its <br>criminal or civil contempt powers, but under 28 U.S.C.  1927 or <br>its inherent powers, with the warning that any future violation <br>"may result in criminal contempt under [Federal Rule of Criminal <br>Procedure] 42."  The court directed appellants to pay the $4,000 <br>sanction within ten days, under penalty of civil contempt.  <br>Appellants complied, then initiated their interlocutory appeals.  <br>In the meantime, the case proceeded to trial. <br>                                II <br>                            DISCUSSION <br>          First, we must determine our jurisdiction.  See Petralia <br>v. AT&T Global Info. Solutions Co., 114 F.3d 352, 353-54 (1st Cir. <br>1997); In re Licht & Semenoff, 796 F.2d 564, 569-70 (1st Cir. 1986) <br>(noting the "regrettable" fact that many interlocutory appeals from <br>attorney-sanction orders have been entertained without considering <br>appellate jurisdiction).  Normally, appellate jurisdiction depends <br>upon the existence of a "final judgment," see 28 U.S.C.  1291, <br>that conclusively "disposes of all the rights of all the parties to <br>an action," Licht, 796 F.2d at 569, "leav[ing] nothing for the <br>[trial] court to do but execute the judgment," Quackenbush v. <br>Allstate Ins. Co., 517 U.S. 706, 709 (1996) (citation omitted).  <br>Thus, the "final judgment" rule minimizes  dilatory, piecemeal <br>litigation, and promotes judicial efficiency.  See Licht, 796 F.2d <br>at 569 (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. <br>368, 374 (1981)).  <br>          Where its salutary effects are outweighed by other <br>practical considerations, however, limited exceptions to the final <br>judgment rule are recognized.  For example, the Cohen (or <br>"collateral order") exception enables an interlocutory appeal from <br>an otherwise non-"final" order which meets four conditions.  Cohen <br>v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).  The order <br>must (1) concern a collateral issue so conceptually distinct from <br>other issues being litigated in the underlying action that an <br>immediate appeal would neither disrupt the main action, nor <br>threaten to deprive the appellate court of useful context which <br>might be derived from subsequent developments in the litigation; <br>(2) completely and conclusively resolve the collateral issue; (3) <br>infringe rights which appellant could not effectively vindicate in <br>an appeal after final judgment in the case; and (4) involve an <br>important or unsettled legal issue, rather than merely challenge <br>discretionary trial court rulings.  See Licht, 796 F.2d at 570-71 <br>(citing Cohen); United States v. Kane, 955 F.2d 110, 111 (1st Cir. <br>1992) (reformulating these same Cohen criteria into a three-part <br>test). <br>          On the question whether monetary sanctions against <br>attorneys are "final," either under section 1291 or Cohen, the <br>courts of appeals remain divided.  See Chaves v. M/V Medina Star, <br>47 F.3d 153, 155 n.7 (5th Cir. 1995) (outlining circuit split); <br>compare, e.g., Frazier v. Cast, 771 F.2d 259, 261-62 (7th Cir. <br>1985) (permitting interlocutory appeal); Cheng v. GAF Corp., 713 <br>F.2d 886, 888-90 (2d Cir. 1983) (same), with Click v. Abilene Nat'l <br>Bank, 822 F.2d 544, 545 (5th Cir. 1987) (dismissing interlocutory <br>appeal); Eastern Maico Distribs., Inc. v. Maico-Fahrzeugfabrik, 658 <br>F.2d 944, 950-51 (3d Cir. 1981) (same). <br>          In siding with the latter authorities some time ago we <br>held that a discovery sanction against a law firm pursuant to <br>Federal Rule of Civil Procedure 26(g) meets neither the section <br>1291 nor the Cohen finality requirements.  See Licht, 796 F.2d at <br>569-73 (dismissing law firm's interlocutory appeal).  Rule 26(g) <br>forbids the interposition of a discovery request by counsel "for <br>any improper purpose, such as to harass," Fed. R. Civ. P. 26(g); <br>see Licht, 796 F.2d at 567 (noting that district court expressly <br>found that attorneys' "primary purpose in deposing [witnesses] was <br>to harass"), and empowers the court to impose an "appropriate <br>sanction" for its violation.  Since we are bound by First Circuit <br>precedent closely on point, see Institut Pasteur v. Cambridge <br>Biotech Corp., 104 F.3d 489, 493 n.8 (1st Cir. 1997), appellants <br>face an uphill battle given the clear parallels between Licht and <br>the present case. <br>          Notwithstanding the statements to the contrary by the <br>district court, appellants insist that the challenged sanction <br>issued pursuant to its statutory power to punish counsel for <br>criminal contempt.  See 18 U.S.C.  401; In re Power Recovery Sys., <br>Inc. (Eck v. Dodge Chem. Co.), 950 F.2d 798, 802 (1st Cir. 1991) <br>(in distinguishing between criminal and civil contempt, appellate <br>court must go beyond mere labels, and assess substantive attributes <br>and aims of sanction).  Were we to adopt their approach, appellants <br>would achieve two distinct advantages.  First, by mischaracterizing <br>the district court sanction as a criminal-contempt order, from <br>which an interlocutory appeal would lie, appellants circumvent the <br>customary barrier to interlocutory appeals from civil-contempt <br>orders.  See Licht, 796 F.2d at 568.  Second, in so doing <br>appellants would prevail on the merits since the district court did <br>not purport to conform its order with the heightened procedural <br>requirements attending criminal-contempt adjudications.  See Fed. <br>R. Crim. P. 42; see also, e.g., Hicks v. Feiock, 485 U.S. 624, 632- <br>33 (1988) (criminal contempt must be proven "beyond a reasonable <br>doubt"); Power Recovery, 950 F.2d at 802 n.18. <br>          Appellants argue that the sanction order essentially <br>bears the attributes of a criminal contempt, rather than a civil <br>contempt.  By apportioning the entire universe of district court <br>sanctions into but two categories, however, appellants <br>impermissibly presume that any sanction that does not proceed from <br>the district court's civil-contempt power necessarily proceeds from <br>its criminal-contempt power.  As Licht itself establishes, the <br>dichotomy proposed by appellants is demonstrably mistaken.  <br>Instead, the pertinent distinction in the present context is <br>between punitive contempt sanctions and punitive non-contempt <br>sanctions. <br>          The challenged sanction is expressly predicated on the <br>"inherent powers" of the federal district courts.  Article III <br>courts were imbued with an array of "inherent powers" in performing <br>their case-management function from the moment of their <br>establishment, powers never specifically enumerated in the <br>Constitution or in legislative enactments, yet "necessary to the <br>exercise of all other[] [enumerated judicial powers]."  United <br>States v. Horn, 29 F.3d 754, 759 (1st Cir. 1994) (citing United <br>States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)); see also <br>Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991); Link v. Wabash <br>R.R. Co., 370 U.S. 626, 630-31 (1962).  These implicit powers <br>include the judicial authority to sanction counsel for litigation <br>abuses which threaten to impugn the district court's integrity or <br>disrupt its efficient management of the proceedings.  See Chambers, <br>501 U.S. at 43 (noting that inherent district court powers include <br>authority to "control admission to its bar and to discipline <br>attorneys who appear before it"); Roadway Express, Inc. v. Piper, <br>447 U.S. 752, 766 (1980) ("The power of a court over members of its <br>bar is at least as great as its authority over litigants.").  <br>Moreover, its criminal contempt power over counsel inheres in the <br>district court's inherent or its so-called supervisory power.  See <br>In re Terry, 128 U.S. 289, 302-03 (1888); Horn, 29 F.3d at 765 n.13 <br>("[C]ontempt originated as an aspect of the supervisory power.").  <br>In time, some of these inherent powers were made explicit, either <br>by enactment or the promulgation of procedural, disciplinary or <br>ethical rules. <br>          Thus, Congress enacted 28 U.S.C.  401, which codified <br>the district court's implicit power to hold litigants in criminal <br>contempt.  See also 28 U.S.C.  1927 (authorizing imposition of <br>"excess costs" upon counsel who "unreasonably and vexatiously" <br>multiply proceedings). Further, the Federal Rules of Civil <br>Procedure include provisions empowering district courts to punish <br>counsel for various pleading and discovery abuses.  See, e.g., Fed. <br>R. Civ. P. 11 (imposing sanction on counsel who signs pleading or <br>motion intended "for any improper purpose, such as to harass"); <br>Chambers, 501 U.S. at 42 n.8 (listing procedural rules prescribing <br>attorney sanctions).  In each instance, the sanctions are punitive <br>in nature, see Horn, 29 F.3d at 765 n.13 ("[C]ontempt . . . <br>continues to serve essentially 'the same purpose' as do sanctions <br>imposed under the supervisory power.") (citation omitted), in that <br>the court intends to penalize counsel for an earlier failure to <br>conform to some threshold of professional conduct imposed by court <br>order, statute or rule.  See, e.g., Peterson v. BMI Refractories, <br>124 F.3d 1386, 1395 (11th Cir. 1997) (noting that 28 U.S.C.  1927 <br>is "penal in nature"); Cooper v. Salomon Bros., 1 F.3d 82, 85 (2d <br>Cir. 1993) ("Rule 11 sanctions are often punitive or aimed at <br>deterrence."); Hamilton v. Ford Motor Co., 636 F.2d 745, 747 (D.C. <br>Cir. 1980) ("The principal purpose of Rule 37(b) is punitive, not <br>compensatory."). <br>          The federal district courts nonetheless retain their <br>inherent power to impose sanctions unless its exercise directly <br>conflicts with subsequently promulgated rules or enactments.  See <br>Chambers, 501 U.S. at 46, 50 ("[T]he court ordinarily should rely <br>on the Rules rather than the inherent power . . . [b]ut if in the <br>informed discretion of the court, neither the statute nor the Rules <br>are up to the task, the court may safely rely on its inherent <br>power[s]," which "must continue to exist to fill in the <br>interstices."); Mark Indus. v. Sea Captain's Choice, Inc., 50 F.3d <br>730, 733 (9th Cir. 1995); cf. John's Insulation, Inc. v. L. Addison <br>and Assocs., Inc., 156 F.3d 101, 108 (1st Cir. 1998) (courts <br>invoking inherent powers may be guided by analogy to the Rules).  <br>Thus, to say that the sanctions imposed below are punitive in <br>nature is not to suggest that they are tantamount to de facto <br>criminal contempt adjudications. <br>          In considering appropriate sanctions for attorney <br>misconduct, the district court has an array of options, ranging <br>from criminal contempt to non-contempt measures.  See Eash v. <br>Riggins Trucking, Inc., 757 F.2d 557, 564 (3d Cir. 1985) (en banc) <br>(noting that district judges have "a wide range of tools to promote <br>efficiency in their courtrooms").  Frequently, there will be sound <br>grounds for not invoking the court's criminal-contempt power, <br>especially since its potency necessitates that it be used "with <br>restraint and discretion." Chambers, 501 U.S. at 44; see Whitney <br>Bros. Co. v. Sprafkin, 60 F.3d 8, 13 (1st Cir. 1995).  Therefore, <br>normally there is much to be said for deploying the least extreme <br>sanction reasonably calculated to achieve the appropriate punitive <br>and deterrent purposes.  See In re Oliver, 333 U.S. 257, 274 (1948) <br>(contempt powers require the "least possible power adequate to the <br>end proposed") (citation omitted); Horn, 29 F.3d at 760 ("[I]t is <br>inappropriate for courts to attempt to use [inherent powers] to <br>justify an extreme remedy when, short of such heroic measures, the <br>means are at hand to construct a satisfactory anodyne more narrowly <br>tailored to the objective."); Schmid v. Milwaukee Elec. Tool Corp., <br>13 F.3d 76, 79 (3rd Cir. 1994). <br>          Thus, the criminal contempt power is to be reserved for <br>conduct that bespeaks a criminal mens rea (i.e., intentional or <br>reckless conduct) and has been proven beyond a reasonable doubt, <br>whereas non-contempt sanctions normally suffice in circumstances <br>involving less culpable states of mind.  See Chambers, 501 U.S. at <br>47 (noting that Rule 11 sanctions may be imposed even where <br>attorney conduct falls short of "reasonableness" standard); Cruz v. <br>Savage, 896 F.2d 626, 631-32 (1st Cir. 1990) (same); see also <br>United States v. Claros, 17 F.3d 1041, 1047 n.4 (7th Cir. 1994) <br>(Rule 11 . . . impos[es] a negligence standard," and Rule 37 <br>violations are sanctionable even where attorney did not act in "bad <br>faith"); Harlan v. Lewis, 982 F.2d 1255, 1260 (8th Cir. 1993) <br>(noting, in dicta, that "inherent powers" sanction may be imposed <br>for ethical-rule violations absent "bad faith" on part of counsel). <br>          Although the "label" employed by the district court is <br>not necessarily determinative in distinguishing criminal and civil <br>contempt, see Power Recovery, 950 F.2d at 802, often it is <br>significant indeed in distinguishing criminal contempt <br>adjudications from non-contempt punitive sanctions.  A formal <br>judicial finding of "contempt" connotes the highest level of <br>censure against counsel.  See In re Kave, 760 F.2d 343, 349 (1st <br>Cir. 1985) (reviewing for contempt where master expressly held that <br>counsel was "contemptuous of [the] Court."); Buffington v. <br>Baltimore County, Md., 913 F.2d 113, 132-35 (4th Cir. 1990) (en <br>banc) (vacating punitive fine, where district court expressly held <br>counsel in "contempt" for discovery abuses, but affirming "civil" <br>sanction imposed pursuant to inherent powers); cf. In re Williams, <br>156 F.3d 86, 89-90 (1st Cir. 1998) (noting that bankruptcy court <br>"findings" criticizing counsel's performance were not equivalent to <br>a sanction or officially designated reprimand), cert. denied, 119 <br>S. Ct. 905 (1999). <br>          Thus, we reject the contention that the sanction imposed <br>against appellants necessarily amounted to an adjudication of <br>criminal contempt simply because it was not a civil contempt <br>sanction.  See Chambers, 501 U.S. at 46 ("The imposition of <br>[inherent-power] sanctions . . . vindicat[es] judicial authority <br>without resort to the more drastic sanctions available for <br>contempt.") (emphasis added; citation omitted); In re Sutter, 543 <br>F.2d 1030, 1037-38 (2d Cir. 1976) (same); see generally Comment, <br>Financial Penalties Imposed Directly Against Attorneys in <br>Litigation Without Resort to the Contempt Power, 26 UCLA L. Rev. <br>855 (1979) (collecting cases).  Quite the contrary, the district <br>court explicitly disclaimed any intention to hold appellants in <br>contempt, instead imposing a non-contempt, "inherent powers" <br>sanction for their harassment of opposing counsel, akin to the <br>sanction in Licht.  Consequently, appellants must distinguish their <br>non-contempt sanction from that imposed in Licht.  See Institut <br>Pasteur, 104 F.3d at 493 n.8. <br>          First, appellants suggest that Licht should govern only <br>if the underlying proceeding is civil, as distinguished from <br>criminal.  We do not agree.  Federal district courts not only <br>exercise their inherent power to impose sanctions in both civil and <br>criminal cases, see Claros, 17 F.3d at 1042, but their contempt <br>powers "developed most robustly in the area of criminal procedure,"  <br>see Horn, 29 F.3d at 759, where the codified rules leave more <br>interstices.  And, of course, interlocutory appeals in criminal <br>cases are the exception.  See, e.g., Kane, 955 F.2d at 111 (noting <br>Supreme Court authority restricting Cohen appeals in criminal cases <br>to three narrow categories:  refusals to dismiss indictments for <br>violations of double jeopardy clause or speech and debate clause or <br>to reduce bail); D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., <br>744 F.2d 1443, 1445 (10th Cir. 1984).  Were it otherwise, trial <br>counsel would be diverted from their primary responsibility   their <br>clients' upcoming trials   while pursuing their own interlocutory <br>appeals.  Such distractions are even less appropriate in criminal <br>cases than in civil actions.  See Kane, 955 F.2d at 110 ("As a <br>result of the 'compelling interest in prompt trials,' the <br>requirements of the collateral order doctrine have been interpreted <br>'with the utmost strictness' in criminal prosecutions.") (citation <br>omitted). <br>          Next, appellants observe that the Licht sanction issue <br>was not entirely separable from other matters to be litigated in <br>the main action.  Thus, should the evidence sought during discovery <br>in Licht have proven irrelevant to any issue litigated at trial, <br>counsel's discovery-related conduct would not have supported the <br>monetary sanctions imposed.  Cf. Licht, 796 F.2d at 572 (noting <br>that delayed appeal would allow appellate court to view case as a <br>whole).  In contrast, appellants argue, no valuable insights can be <br>gained by postponing the present appeal until final judgment, since <br>the propriety of their conduct vel non cannot be elucidated by <br>developments at trial. <br>          We do not share their confidence that no relevant <br>insights lie in store.  In resisting these sanctions below, <br>appellants maintained that their reports of the factual grounds for <br>Dr. Perez's subjective fears about AUSA Dominguez were made in good <br>faith, even assuming that Dr. Perez's anxieties were irrational or <br>ill-founded.  Nevertheless, the district court noted countervailing <br>evidence   such as  appellants' failure to request AUSA Dominguez's <br>prior consent to relocate the deposition, and their failure to <br>submit an affidavit from Dr. Perez at the "show cause" hearing   <br>which could support an inference that appellants' excuse was <br>presented in bad faith and for the sole purpose of harassing and <br>humiliating AUSA Dominguez.  Cf. id. at 570 ("The district court's <br>sanction order was directed at the [law] firm's conduct of <br>discovery and purpose for undertaking it.") (emphasis added).  <br>Thus, we cannot say that it is beyond the realm of possibility that <br>a full trial record may afford important insights into appellants' <br>actual motives, and, at the very least, permit a better informed <br>appellate assessment as to whether appellants continued to engage <br>in a discernible pattern of harassment. <br>          Appellants next contend that the district court announced <br>its intention never to reconsider its sanction, thus satisfying the <br>second   "conclusiveness"   criterion under Cohen.  Although the <br>district court did decline immediate reconsideration of its <br>sanction, there is no barrier to a future reconsideration.  <br>Moreover, in Licht we simply observed that "the sanction may never <br>be finally imposed."  Id. (emphasis added).  We did not base our <br>decision on the announced intention by the district court to keep <br>an open mind, but rather on the well-settled principle that the <br>district court retains the inherent power to modify or rescind <br>monetary sanctions at any time, as circumstances warrant.  Id. at <br>570 ("We are not suggesting that any of these possibilities should <br>or will be followed in this case, but their existence detracts from <br>the finality of the order.") (emphasis added).  Finally, the <br>prospect for canceling the fine may be somewhat better where the <br>monetary sanction imposed by the court remains in the court <br>registry. <br>          Appellants argue that the monetary sanction in Licht <br>reflected the opposing party's corresponding losses, and therefore <br>was compensatory, whereas the instant sanction was calculated <br>solely for its punitive and deterrent effect.  See id. at 567 <br>(sanction made payable to opposing parties).  As already noted, <br>however, see supra, most non-contempt monetary sanctions    <br>including the Licht sanction   are at least partially punitive in <br>purpose, designed to penalize counsel for a discrete violation of <br>a court order or rule.  See, e.g., Media Duplication Servs., Inc. <br>v. HDG Software, Inc., 928 F.2d 1228, 1242 (1st Cir. 1991) ("[T]he <br>focus of any sanction need not be limited to compensation of <br>opposing counsel."); Mark Indus., 50 F.3d at 733 (refusing to <br>disturb sanction because "the amount of an inherent powers sanction <br>is meant to do something very different than provide a substantive <br>remedy to an aggrieved party . . . [but instead] . . .'vindicat[e] <br>judicial authority'").  Thus, their punitive nature does not <br>convert these sanctions into criminal-contempt fines, see supra, <br>nor meaningfully affect the Cohen calculus, given that the payee's <br>identity lends no increased urgency to appellants' interlocutory <br>challenge. <br>          Appellants complain also that their sanction was made <br>immediately payable, unlike the sanction in Licht.  See Forgay v. <br>Conrad, 47 U.S. (6 How.) 201 (1848).  This thrust fails as well.  <br>First, Licht did not indicate whether or not the Rule 26 sanction <br>was immediately payable, nor suggest in any way that it would be <br>material to appellate jurisdiction.  Further, appellants vastly <br>overstate the Forgay "practical finality" doctrine, which merely <br>permits interlocutory appeals from "immediate payment" orders which <br>threaten a special risk of harm to the appellant.   See, e.g., <br>Schaffer v. Iron Cloud, Inc., 865 F.2d 690, 691-92 (5th Cir. 1989) <br>(dismissing interlocutory appeal of sanction order, even though <br>court directed immediate payment); Eastern Maico, 658 F.2d at 948 <br>(dismissing interlocutory appeal, and noting that normal risks <br>attending immediate payment cannot satisfy Cohen's third prong <br>since "the same risk is present to some degree in almost every <br>order for sanctions where execution precedes review").  Thus, for <br>example, appellants would need to establish financial inability to <br>pay the fine, or that the party to whom the payment must be made is <br>in so precarious a financial condition that it may be impossible to <br>recover the payment should the sanction order be reversed on final <br>appeal.  See Cleveland Hair Clinic, Inc. v. Puig, 104 F.3d 123, 126 <br>(7th Cir. 1997); Ortho Pharm. Corp. v. Sona Distribs., 847 F.2d <br>1512, 1516 (11th Cir. 1988); ODC Communications Corp. v. Wenruth <br>Invs., 826 F.2d 509, 513-14 (7th Cir. 1987); In re Stable Mews <br>Assocs. (Stable Mews Assocs. v. Togut), 778 F.2d 121, 124 (2d Cir. <br>1985). <br>          These appellants, all practicing attorneys, collectively <br>remitted the $4,000 fine to the district court prior to their <br>appeal, and do not suggest that their remittance has caused undue <br>financial hardship.  See Robinson v. Tanner, 798 F.2d 1378, 1381-82 <br>(11th Cir. 1986) (no appeal permitted where appellant did not <br>allege that he was financially unable to make immediate payment of <br>monetary sanction); Ortho Pharm., 847 F.2d at 1515-16 (noting that <br>size of sanction   $35,000   could be material to whether appellant <br>would suffer significant liquidity problems).  Furthermore, as the <br>fine was paid into the court, see supra note 5, rather than to an <br>opposing party, appellants need fear no dissipation of the monies <br>pending final appeal. <br>          Appellants reserve their most fervent arguments for the <br>third prong in the Cohen analysis, which requires them to <br>demonstrate irreparable harm in the event their appeals were <br>delayed until final judgment.  Three distinct harms are identified:  <br>(1) the significant professional stigma attending the allegedly <br>unjustified public reprimand delivered by the district court; (2) <br>the untested civility order, if allowed to remain in place pending <br>final judgment, would intimidate them into less vigorous advocacy, <br>thus depriving their clients of their constitutional entitlement to <br>the effective assistance of counsel; and (3) eventually they may be <br>placed in a conflict of interest with their clients, who may not be <br>interested in pursuing an appeal from a final judgment in the <br>criminal case (e.g., an acquittal). <br>          The "irreparable harm" prong is the most crucial among <br>the four Cohen criteria, and frequently proves fatal to appellants.  <br>See Licht, 796 F.2d at 571.  Clearly, "irreparable harm" <br>contemplates much more than that an appellant possess reasons for <br>preferring immediate appellate review, or deem it more convenient <br>or exonerative.  Rather, an appellant must demonstrate that "denial <br>of an immediate appeal would make effective [appellate] review <br>'impossible,' or would 'destroy' the 'legal and practical value' of <br>the appellant's right to appeal."  Id. (emphasis added) (quoting <br>Firestone Tire, 449 U.S. at 376-77); see United States v. Ryan, 402 <br>U.S. 530, 533 (1971).  Normally, even the prospect that pretrial <br>error might necessitate a retrial is insufficient to establish <br>irreparable harm.  See D&H Marketers, 744 F.2d at 1445 ("Mere error <br>in the [sanction] order does not satisfy the requirement that the <br>order be effectively unreviewable on [a final] appeal.") (citing <br>Firestone Tire, 449 U.S. at 378).  Given its demanding regimen, <br>appellants cannot distinguish Licht. <br>          A risk of professional stigma surely attends most <br>sanction orders, since sanction either explicitly or implicitly <br>impugns counsel's professional ethics or competence.  After all, <br>trial counsel are not sanctioned for exemplary conduct.  <br>Accordingly, the Licht sanction inarguably cast counsel in an <br>unfavorable light, and although one might debate the relative <br>harshness of a particular obloquy, jurisdictional determinations <br>cannot be made to turn on such subjective vagaries. <br>          In our view, moreover, appellants exaggerate the <br>stigmatizing effect that a sanction has in the interim.  Until a <br>sanction order becomes "final" (i.e., nonappealable), the public <br>and the legal profession understand that the trial court considered <br>counsels' conduct sanctionable, but surely make allowance for the <br>prospect that the sanction, if erroneous, may be reversed on <br>appeal.  Cf. Martin v. Brown, 63 F.3d 1252, 1261-62 (3d Cir. 1995) <br>(noting that professional stigma might satisfy irreparable-harm <br>prong where attorney was no longer participating in litigation). <br>          Similarly, we believe the alleged chilling effect the <br>sanction may have on appellants' advocacy during the interim is not <br>material to the present analysis.  Notwithstanding the risk of <br>sanctions, defense counsel are obligated to represent their clients <br>vigorously, within the bounds of all applicable ethical codes,  <br>particularly in a criminal case where the stakes may be much <br>greater than in civil cases.  Cf. Licht, 796 F.2d at 572 (noting <br>that despite delay in appeal of sanction order, "[t]he firm's <br>ethical obligation is to its client's best interests"); Chambers, <br>501 U.S. at 47 n.11 ("[T]here is little risk that courts will <br>invoke their inherent power 'to chill the advocacy of litigants <br>attempting to vindicate all other important federal rights.'") <br>(citation omitted). <br>          Although it may be difficult on occasion to draw the line <br>between zealous advocacy and unacceptable courtroom tactics, the <br>line must be drawn, cf. United States v. International Bhd. of <br>Teamsters, 948 F.2d 1338, 1343 (2d Cir. 1991) ("Drawing a line <br>between zealous advocacy and frivolous conduct, Rule 11 provides a <br>vehicle for sanctioning an attorney."), and the district courts are <br>better able to draw it in the first instance.  Counsel must <br>represent their clients' interest within that line, and not beyond <br>it.  See  Jones v. Winnepesaukee Realty, 990 F.2d 1, 5 (1st Cir. <br>1993) ("In this age of burgeoning litigation expense and <br>overcrowded dockets, . . . a busy trial judge should [not] have to <br>tolerate litigants' repeated efforts to stall a case [or] harass <br>other participants."); United States v. Cooper, 872 F.2d 1, 3 (1st <br>Cir. 1989) ("[A]n attorney is not free to say literally anything <br>and everything imaginable in a courtroom under the pretext of <br>protecting his client's rights to a fair trial and fair <br>representation."); Jones v. Continental Corp., 789 F.2d 1225, 1230 <br>(6th Cir. 1986) ("An attorney's ethical obligation of zealous <br>advocacy . . . does not amount to carte blanche."); D&H Marketers, <br>744 F.2d at 1446 (noting that disallowing attorneys' interlocutory <br>appeals has the salutary effect of "reinforcing the [attorneys'] <br>necessary deference to the trial court's broad discretion in <br>managing cases"). <br>          Upon appeal from a final judgment, of course, sanctioned <br>counsel may argue with equal vigor that the sanction order <br>improperly constrained effective advocacy, and if successful, an <br>adequate remedy would lie.  See Cooper, 872 F.2d at 5 ("Lawyers <br>using professional care, circumspection and discretion in <br>exercising that right need not be apprehensive of chastizement <br>(sic) or penalties for having the advocative courage" to represent <br>their clients vigorously.).  But though the fact that trial counsel <br>would have drawn the line differently than the trial judge may be <br>grist for an appeal, it does not follow that it enables an <br>interlocutory appeal.  See D&H Marketers, 744 F.2d at 1445. <br>          Furthermore, as we stated in Licht, we see no reason to <br>suppose that these appellants cannot effectively challenge the <br>sanction order following final judgment   no matter the trial <br>outcome   without risking a conflict of interest with their <br>clients.  See Licht, 796 F.2d at 572 ("[W]e have found nothing to <br>convince us that the appeal could be lost in those circumstances. <br>. . . We see no reason why an attorney should not be allowed to <br>appeal a sanction order when the main case is terminated without an <br>appeal.  The sanction order affects the attorney directly and <br>independently."); see also Sanders Assocs., Inc. v. Summagraphics <br>Corp., 2 F.3d 394, 398 (Fed. Cir. 1993) (an attorney can appeal <br>after final judgment "even if there is no appeal by a party with <br>respect to the merits"); United States v. Wallace, 964 F.2d 1214, <br>1217 (D.C. Cir. 1992) ("After the rescheduled trial, at which <br>defendant was acquitted, [sanctioned attorney] moved that the trial <br>court reconsider its sanction," and then filed appeal) (emphasis <br>added); cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199- <br>200 (1988) (noting that attorney-fee awards are separately <br>appealable from underlying final judgment). <br>          Most cases, civil as well as criminal, end in a final <br>judgment of some sort.  Thus, should appellants' clients be <br>acquitted, or enter a plea, an independent appeal would lie from <br>the sanction order.  Similarly, should their clients be convicted, <br>their appeals can proceed in tandem with appellants, thereby <br>promoting judicial efficiency, an important goal of the "final <br>judgment" rule. <br>          Finally, focusing on Cohen's final prong, appellants <br>argue that their appeal involves very important legal issues, such <br>as the alleged violation of their right to procedural due process <br>by the district court.  While we have no doubt that these <br>constitutional rights are weighty, the reality is that the district <br>court cannot impose any enforceable sanction, even a Licht-type <br>sanction, absent compliance with all applicable procedural due <br>process requirements.  See Chambers, 501 U.S. at 50; Roadway <br>Express, 447 U.S. at 767; Societe Internationale Pour <br>Participations Industrielles et Commerciales v. Rogers, 357 U.S. <br>197, 209 (1958); United States v. 789 Cases of Latex Surgeon <br>Gloves, 13 F.3d 12, 15 (1st Cir. 1993) ("The '[l]ack of fair notice <br>is fatal to [the court's] exercise of inherent power.'") (citation <br>omitted).  Moreover, appellants' argument would permit sanctioned <br>counsel to evade section 1291 simply by alleging a due-process <br>violation, thereby rendering Licht a dead letter.  Just as <br>importantly, appellate courts frequently turn away interlocutory <br>appeals involving the weightiest constitutional questions unless <br>the appellant has met the remaining Cohen criteria.  See, e.g., <br>Starcher, 144 F.3d at 423 ("The Supreme Court has declined to <br>extend the [Cohen] collateral-order doctrine to cover appeals from <br>judgments of even the most sweeping import.").  Thus, if <br>appellants' due-process rights were violated, there is no reason to <br>assume they cannot be fully vindicated on final appeal. <br>                               III <br>                            CONCLUSION <br>          We are neither persuaded that the challenged sanction <br>differs so substantially from the Licht sanction as to warrant <br>distinctive treatment under either section 1291 or Cohen, nor that <br>it is beyond the pale in any other respect, cf. Eastern Maico, 658 <br>F.2d at 951 (noting that extraordinary remedies, like petitions for <br>mandamus, are available to address egregious abuses of discretion <br>under the district court's inherent powers).  Finally, it is <br>noteworthy that some courts of appeals which have been more <br>inclined to entertain these interlocutory appeals have expressed <br>second thoughts of late.  See, e.g., Lapidus v. Vann, 112 F.3d 91, <br>96 (2d Cir.) ("Were we writing on a clean slate, we would be <br>tempted to confine Cheng to its unusual facts and characterize the <br>sanctions order here as nonappealable under the Cohen doctrine."), <br>cert. denied, 118 S. Ct. 337 (1997); Cleveland Hair, 104 F.3d at <br>125 (noting that its prior interlocutory-appeal rulings had "not <br>played to universal acclaim," and that any extension of those <br>precedents would result in "a substantial, and unjustified, erosion <br>of the final-decision requirement").  For our own part, <br>particularly in the context of a criminal trial we remain loath to <br>embrace a jurisdictional rule with the ominous implications <br>discussed above.  See, e.g., D&H Marketers, 744 F.2d at 1446 <br>("[T]he potential exists for repeated sanctions over an extended <br>period of time, each one of which would result in an immediate <br>appeal to this court," and hence "the potential for wasting the <br>appeal court's time."). <br>          Appeal dismissed; costs to appellee.</pre>

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