FRIENDLY, Circuit Judge:
In this action in the District Court for the Southern District of New York, in which federal jurisdiction is predicated on diverse citizenship, 28 U.S.C. § 1332, Contemporary Mission, Inc., a not-for-profit organization of Catholic priests based in Westport, Connecticut, and four of its five member-priests, including appellant Rev. John T. O'Reilly, have sued The New York Times Company for libel. The alleged libel, printed in the Times for November 1, 1980, was an article about the Mission and its priests by Diane Henry. The article said, inter alia, that church officials in St. Louis, led by John Cardinal Carberry, had accused the priests of forging documents for their ordinations; that Monsignor Cusack of the Bridgeport, Conn., Diocese had written that the priests were not recognized by the diocese and were unable to function as Catholic priests; that in 1977 the State of Connecticut had gotten a cease and desist order against them for failing to deliver merchandise; that the Postal Service had charged them with fraud in the sale of bath-oil; that Father O'Reilly had married, which would normally mean his excommunication from the Roman Catholic Church, but that he said he had switched to the Eastern Rite of the Catholic Church which allows priests to marry; and that the Mission's public court record "raises questions about whether the priests may have cloaked a profitable business in the guise of a religious, tax-exempt organization." Plaintiffs allege that these and other statements are false or so incomplete as to convey a misleadingly false impression. The initial complaint, filed on November 20, 1980, and the first amended complaint, filed on December 10, 1980, were signed both by Leonard H. Rubin, Esq., for the New York City law firm of Anderson/Rubin, and by appellant's brother, William D. O'Reilly, Esq., who gave a New Hampshire address. There is no indication, however, that Anderson/Rubin have taken any significant part in the action. William O'Reilly conducted the extensive discovery and motion practice which preceded appellant's request to proceed pro se; Anderson/Rubin presumably performed occasional ministerial chores in their capacity as local counsel. The supplemental answer to the first amended complaint contains what amounts to a general denial and pleads ten affirmative defenses.
On April 29, 1982, thirteen days after the Times had filed notice that it was proposing to move for summary judgment, Rev. John O'Reilly wrote the district judge to say that
On May 27, 1982, Rev. O'Reilly made a formal motion to proceed pro se. Counsel for the Times answered with an affidavit placing two documents before the court: The first was a notice by attorney William O'Reilly, dated December 18, 1981, changing his address to care of Contemporary Mission, Inc., 285 Saugatuck Avenue, Westport, Conn. The second was an excerpt from a deposition of one of the plaintiffs, Rev. Patrick J. Berkery, taken on January 20, 1982, in which counsel for the defendant took note of Father O'Reilly's presence and asked attorney William O'Reilly in what capacity he appeared. William answered that Father O'Reilly "is assisting me in a paralegal capacity, as he has throughout the course of this civil action." Counsel for the Times objected to his presence as such but the deposition continued.
The district judge heard oral arguments on the application to appear pro se on June 23, 1982. The judge denied the motion in an oral opinion set forth in the margin.
Appellee would have us analogize the order here at issue to one denying a motion to disqualify counsel, which we have held to be unappealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949), see Armstrong v. McAlpin, 625 F.2d 433 (2 Cir.1980) (en banc), vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981), a position subsequently upheld by the Supreme Court in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Appellant contends that the closer analogy is to an order granting a motion to disqualify counsel which we have long held to be appealable under the Cohen doctrine, see Fleischer v. Phillips, 2 Cir., 264 F.2d 515, 517, cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959), a position reaffirmed in McAlpin, supra, 625 F.2d at 440-41. Although neither analogy is perfect, the latter seems closer. Rev. O'Reilly has not sought to disqualify his brother; he has simply discharged him. What the district court has done in effect is to disqualify Rev. O'Reilly from representing himself; at the instance of the adverse party it has forced upon him counsel whom he does not want. The practical effect of a denial of a motion to proceed pro se is thus the same as that of a grant of a motion to disqualify — namely, the losing party must go forward in the litigation with representation not of his choosing. Cf. McAlpin, supra, 625 F.2d at 440.
Analogies aside, direct application of the three-part "collateral order" test, set forth in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) and repeated in Firestone, supra, 449 U.S. at 375, 101 S.Ct. at 674, points toward the appealability of the order here at issue. Under this test an order comes within the Cohen doctrine if it "conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the case, and [is] effectively unreviewable on appeal from a final judgment." Coopers & Lybrand, supra, 437 U.S. at 468-69, 98 S.Ct. at 2457-2458. The only element here in doubt is the third.
We start with the proposition that the right to self-representation in civil cases conferred by § 35 of the Judiciary Act of 1789, although not enjoying the constitutional protection subsequently afforded to the right of self-representation in criminal cases, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is a right of high standing, not simply a practice to be honored or dishonored by a court depending on its assessment of the desiderata of a particular case. As the Court said in Faretta, supra, 422 U.S. at 830 n. 39, 95 S.Ct. at 2538 n. 39: "The Founders believed that self-representation was a basic right of a free people."
The few qualifications which this court has put on the clear language of the self-representation clause of § 1654 are consistent with its high purpose. One such qualification, enunciated in criminal cases, see United States v. Bentvena, 319 F.2d 916, 938 (2 Cir.1963); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2 Cir.1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966), but equally applicable in civil cases, is that the right to self-representation must be timely asserted. The right is "unqualified" if invoked prior to trial but is "sharply curtailed" if first asserted after the trial has begun. Denno, supra, 348 F.2d at 15. An untimely request is committed to the discretion of the trial court, which may consider, among other factors, the reason for the
A second qualification recognized in our cases is that the rights of self-representation and representation by counsel "cannot be both exercised at the same time." United States v. Mitchell, 137 F.2d 1006, 1010 (2 Cir.1943), cert. denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944). Although a trial judge may in his discretion permit a party to enjoy both halves of the statutory right, see United States v. Swinton, 400 F.Supp. 805, 806 (S.D.N.Y.1975) and cases cited therein, Section 1654 does not itself confer any right to "hybrid representation". United States v. Wolfish, 525 F.2d 457, 462-63 (2 Cir.1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976). Accord, United States v. Hill, 526 F.2d 1019 (10 Cir.1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); United States v. Daniels, 572 F.2d 535 (5 Cir.1978). Thus, a party seeking to assert his statutory right of self-representation must clearly and unequivocally discharge any lawyer previously retained. See Wolfish, supra, 525 F.2d at 462. Rev. O'Reilly has done just that. In his initial letter to Judge Broderick of April 29, 1982, he stated that "I have discharged my attorney, William O'Reilly, [and] ... shall henceforth plead and conduct my own case on a pro se basis." He repeated this in his letters to the court of May 3 and May 7, 1982, as well as in the oral argument on his formal motion.
Notwithstanding this, the Times contends here, as it did before Judge Broderick, that what Rev. O'Reilly really seeks, despite his avowals, is "hybrid representation". In support of this contention it cites our decision in United States v. Private Brands, Inc., 250 F.2d 554 (2 Cir.1957), cert. denied, 355 U.S. 957, 78 S.Ct. 542, 2 L.Ed.2d 532 (1958). In that case a corporation and Carey, its President and controlling stockholder, had been jointly prosecuted for fraudulently misrepresenting the quality of chloroform sold to Government agencies. On the day trial was to begin, but before a jury was empanelled, Carey sought permission to proceed pro se and to have Driscoll, the attorney who had up to that point represented both him and the corporation, continue to represent the latter. The trial court denied Carey's request and we affirmed. In a passage on which appellee seizes, we stated:
Appellee argues that the present case is on all fours with Private Brands. It points out that while Rev. O'Reilly has purportedly "discharged" his brother William, the latter will continue to represent not only the other individual plaintiffs but the corporate plaintiff, Contemporary Mission, Inc. This argument, however, overlooks the fact that the interests of Contemporary Mission and Rev. O'Reilly, unlike those of Private Brands and Carey, are not identical, much less conceded to be so. As Rev. O'Reilly pointed out in argument, both in the district court and here, certain of the alleged libels — that he had forged documents for his ordination, that he had married in defiance of rules of the Roman Catholic Church and had avoided excommunication only by switching to the Eastern Rite — were directed at him, not
We do not find any of the other reasons assigned by the judge adequate to justify denying Father O'Reilly's statutory right of self-representation. The first reason was that:
The first sentence is conclusory
Except for the matter of the Roman collar,
The right while indeed statutory rather than constitutional is nonetheless entitled to respect, and the litigation advantage of being able to appear both as witness and as counsel is one which, for better or for worse, parties have been granted in the federal courts since 1789. In sum, while the trial, if there be one, would almost certainly be calmer and easier for the judge to manage if Father O'Reilly had not decided to represent himself, such considerations do not justify refusal of the historic statutory right of self-representation.
At argument appellant requested that we assign the case to another judge. We deny this, having full confidence that Judge Broderick will preside over a trial, if there should be one, with complete fairness to both sides. We shall expect Father O'Reilly to give him full cooperation in this task.
derives from the first sentence of § 35 of the Judiciary Act of 1789, 1 Stat. 73, 92. This read:
It was carried without substantial change into R.S. § 747. Especially in light of the original wording it is clear that the "as" clause is only a limitation on who may appear as counsel and does not qualify the right of self-representation.
If, on the other hand, the judge thought that Rev. O'Reilly was likely to engage in deliberately disruptive or obstreperous conduct, the measure he chose was far too drastic. A potentially unruly, disrespectful, or overly passionate pro se may be clearly and firmly forewarned that he will lose his right of self-representation if he obstructs the trial or creates "a scene". Cf. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (disruptive behavior may operate as constructive waiver of right to be present at trial). But the mere possibility of such disruption, especially if it is as unlikely as it appears to be here, is not a sufficient reason for denying the right of self-representation at the start. See Dougherty, supra, 473 F.2d at 1126.
The present case is distinguishable from La Rocca, assuming we should decide to apply it in a federal court. Rev. O'Reilly is not a lawyer who happens also to be a priest; he is a priest who happens also to be a pro se plaintiff in a civil action. There is little question that were he to appear at trial only as a party and a witness in his own behalf he would not be expected to remove his collar. Cf. Close-It Enterprises v. Weinberger, 64 A.D.2d 686, 407 N.Y.S.2d 587 (App.Div., 2d Dept. 1978) (orthodox Jew must be permitted to wear skullcap when appearing as party). We can see no reason why his assumption of the further role of advocate in his own behalf should be conditioned on his doffing his everyday clerical garb.
It is important to recognize that the present case is highly unusual in that one of its central contested issues is whether Rev. O'Reilly is what he holds himself out, by his dress and otherwise, to be — namely, a full-fledged ordained priest in good standing. To require him to remove his collar, therefore, would not merely infringe on his First Amendment rights but also seriously prejudice his cause in the eyes of the jury. Neither voir dire nor jury instructions could overcome the impression that the court thinks him a fraud. In contrast, any prejudice to the Times can be cured by voir dire and jury instructions. It should be enough to explain that Rev. O'Reilly is simply being permitted to wear his everyday dress and that no inference as to his religious standing is to be inferred therefrom. Given these unusual circumstances we need not decide whether a pro se priest can or should be required to remove his collar when the action to which he is a party in no way implicates his religious standing.