Brenk v. State

Donald L. Corbin, Justice. Appellant, Herbert F. Brenk, pursues an interlocutory appeal from the Baxter Circuit Court’s June 8, 1993 order removing one of his two court appointed attorneys, Mr. Larry Dean Kissee, from representing appellant in his second trial for murder. Appellant argues this action has deprived him of his right to counsel. Appellant bases jurisdiction on Ark. R. App. P. 2(a)(8) which allows an appeal to this court from an order “which disqualifies an attorney from further participation in the case.” The attorney in the instant case was not disqualified from further participation, and in fact was specifically granted permission to continue to participate in appellant’s retrial at his own expense. “Disqualify” is defined as “to divest or deprive of qualifications; to incapacitate” or “to render ineligible or unfit” in Black’s Law Dictionary 424 (5th ed. 1979). The attorney in appellant’s case was certainly not “disqualified,” especially in light of the fact that the order clearly noted that the trial court did not prohibit the attorney from participating. There must be a more substantive basis on ethical grounds to meet the definition of “disqualify” under our appellate rules. See e.g. First American Carriers, Inc. v. The Kroger Co., 302 Ark. 86, 787 S.W.2d 669 (1990). The trial court’s order in this case does not meet this definition. Since this is not an appeal of a final order as required under our rules and does not fall within any other exception provided, this appeal is hereby dismissed. Glaze, J., dissents.