dissenting:
It should be noted initially that this court points to no local experience with motions to disqualify counsel which might lead us to abandon our prior decisions relating to interlocutory appeal on the grant by the trial court of such motions. On a purely local appellate policy, i.e., the right to an interlocutory appeal, one might anticipate that an appellate court would change a long established policy only if its own experience has proved it unwise and another policy is better. Our interlocutory appeal policy was bottomed on this being the only means of affording an effective review. Urciolo v. Urciolo, 449 A.2d 287 (D.C.1982); American Archives’ Counsel v. Bittenbender, 345 A.2d 487 (D.C.1975). The actuality is that over the years this court only very rarely received an appeal from a grant of a motion to disqualify counsel. Ordinarily, such motions are filed pretrial and are by their nature not complex and are factually oriented. They are susceptible of being decided promptly by a regular motions panel of the court, and often may not even require a written opinion and could be decided by a brief memorandum and order of the court, as a practical matter. Also, since the order of the trial court is usually entered before trial, it need not delay the trial in that court, which is then in the pretrial stage of the proceedings. So the practical side is really quite minor. But, on the other hand, affording an effective review is an important principle.
The federal Circuit Courts of Appeal across the country had previously concluded that on appeal after final judgment, where one must show prejudicial error to be successful, litigants deprived of chosen counsel are not able to establish error because “it might well require a party to show that he lost the case because he was improperly forced to change counsel” and “[t]his would appear to be an almost insurmountable burden.” Armstrong v. McAlpin, 625 F.2d 433, 440-41 (2d Cir.1980) (en banc), vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981); see also Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 719 (7th Cir.1982) (“[i]f the order granting disqualification is erroneous, correcting it with an appeal at the end of the case might well [be] ... ‘an almost insurmountable burden’ ”) (citation omitted); In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 658 F.2d 1355, 1358 (9th Cir.1981) (“[i]t would place an almost insurmountable burden on a person who is not a party to the litigation to vindicate a right to counsel of his choice ... if he were required to show on appeal from the final judgment that he had lost the case because he had been improperly forced to change counsel”), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020, 1027 (5th Cir.) (stating that correcting the grant of a disqualification order on appeal is “ ‘an almost insurmountable burden’ ”) (citation omitted), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981).
Faced with this nationwide appellate reality, the opinion in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), simply summarily dispenses with the usual requirement on the appellant to establish prejudice, saying that the Supreme Court “has never held that prejudice is a prerequisite to reversal following erroneous disqualification of counsel either in criminal or civil cases.”1 *1163In this jurisdiction, however, there is a well-recognized statutory mandate regarding prejudicial error. D.C.Code § ll-721(e) (1989) (sometimes referred to as encompassing the “harmless error” doctrine).
This is not to say that there has not always been a well known appellate revulsion against piecemeal appeals, for obvious reasons. But when it comes to the basic problem — unreviewability if the normal prejudicial error test must be met — -the plurality opinion abandons the Supreme Court opinion in Richardson-Merrell, supra, which I had understood it is relying upon, and instead elects “to follow the lead of the Maryland Court of Appeals” in Harris v. David S. Harris, P.A., 310 Md. 310, 529 A.2d 356 (1987). It so happens that the Maryland court also departs from the basic reasoning of Richardson-Merrell because, said the court:
In contradistinction to the [Supreme Court] in Richardson-Merrell, we start with the premise that the appellate courts of this State will not reverse a lower court judgment for harmless error: the complaining party must show prejudice as well as error. [Emphasis in text.]
Although this court’s opinion tells us how impressive is the reasoning of the Supreme Court in Richardson-Merrell, when it comes to the crunch of effective reviewability, the plurality departs from the Supreme Court to join the Maryland court instead, enigmatically.
The Maryland court goes on to state that because losing chosen counsel is such a fundamental deprivation, “we shall presume that the disqualified attorney’s former client has been prejudiced and the burden will be on the party advantaged by the erroneous disqualification to prove that the disqualification did not influence the outcome of the litigation.” Harris, supra, 310 Md. at 320, 529 A.2d at 361 (emphasis added). By relieving the appellant of the burden of establishing prejudice, said the court, this “renders a disqualification order subject to effective post-judgment review.” Id.
Having ruled that our court is bound by Richardson-Merrell, supra, and having then expressly overruled our prior decisions in Urciolo v. Urciolo and American Archives’ Counsel v. Bittenbender, supra, a plurality of the court , here turns to the prejudice dilemma. It says that, as to this, the court “would add a corollary.” The court states:
As a quid pro quo for barring interlocutory appeals from orders disqualifying counsel, we would also hold that a party challenging such an order in an appeal from a final judgment need not demonstrate prejudice; rather, once the order is shown to have been erroneous, the party opposing reversal should bear the burden of demonstrating to the appellate court a lack of prejudice. Such a holding would follow the lead of the Maryland Court of Appeals....
Ante at 1159.
Though it does not say so, it is there departing in an important sense from the Supreme Court in Richardson-Merrell. There, the Supreme Court stated that the prejudice requirement simply does not exist in these cases.
The plurality does not state, as the Maryland court did, that it is “presuming” prejudice if the disqualifying order is erroneous, but rather is adopting this new rule of appellate procedure “with the apparent encouragement of at least one member of the Supreme Court.” The opinion goes on to explain that then-Justice Brennan had attached an understanding to his concurrence in Richardson-Merrell. There, Justice Brennan took the extraordinary step of conditioning his concurrence with the Court’s opinion:
*1164On the understanding that the courts of appeal will develop standards for reviewing final judgments that will effectively protect each litigant’s right to retain the attorney of choice, I join the Court’s opinion.
472 U.S. at 442, 105 S.Ct. at 2767.
I read the Supreme Court’s opinion as stating that once it had removed the prejudice requirement, there was then no obstacle to an effective review of a final judgment. Apparently, Justice Brennan did not think so else he would not have conditioned his concurrence in that extraordinary manner.
Returning to the “quid pro quo,” the opinion leaves a question unanswered: how is the prevailing party at trial (the appellee) to be reasonably expected to show a lack of prejudice when, for example, the various federal courts of appeal across the country have concluded that even an appellant in these counsel disqualification cases is in no position to show prejudice. If a deprived appellant is, as a matter of litigation reality, in no position to show prejudice, then it is difficult to understand how the opposing party (the appellee) reasonably could be expected to shoulder the burden of showing a lack of prejudice, not in theory but as a realistic matter in civil litigation. Put simply, if it is acknowledged that, on this issue, an appellant cannot reasonably be expected to show prejudice, how then can the appellee reasonably be expected to demonstrate lack of prejudice? This test is just an abstraction. The appellee is naturally much further removed from the necessary information and in no position to assume the burden. Consequently, I believe there is being created, as a practical matter, a reversible error per se rule. In the real world, an appellee will not have the capability of establishing lack of prejudice. And, as we know very well, error per se is increasingly frowned upon. See, e.g., Arizona v. Fulminante, — U.S. —, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
So, one returns to the proposition that we are here considering a local appellate policy question over which we, not any other court, have autonomy; and this court has had no adverse experience with our existing interlocutory appeal rule on counsel disqualification, in the rare cases that come along to invoke it. This being so, there is not a need to change it by overruling our prior decisions. I kind of wonder whether we are “tilting at windmills.”
The practical effect will be to put an unbearable price on filing a motion to disqualify no matter how meritorious and therefore in the public interest. The potential price to a movant is too high. Since the heart of the problem is affording a party an effective review on such a basic issue as losing one’s chosen counsel, I favor insuring that litigants get it, i.e., by grant of an interlocutory appeal. The cost is simply to retain our longstanding rule on interlocutory appeal of this particular issue. These rare motions have not been abused in this court system, and the court’s opinion does not claim otherwise; and so I do not understand the plurality’s reference to “the tactical filing of frivolous motions to disqualify counsel,” because the plurality is unable to point to any such unethical practices in this jurisdiction. And I would not for a moment imply that the motions in the cases under review are in this category.
In the administration of justice, the fundamental consideration for a court on an appeal is that a party have the opportunity for an effective appeal. That is to say, a trial court ruling under attack should not be effectively unreviewable. It was this consideration which led federal courts of appeal across the country to decide that where after final judgment one must show prejudicial error, this was an “almost insurmountable burden” in the matter of counsel disqualification.
Because of that consideration, the undesirability of piecemeal appeals should in this instance give way to the more important need to afford a party effective re-viewability by an interlocutory appeal. The scales of justice should tip in that direction, especially where, as here, the disqualification issue arises so rarely and, when it does, the administrative inconvenience for the court could be so slight. Instead, the plurality would now establish *1165what is, in effect, an undesirable reversible error per se doctrine in relation to a counsel disqualification issue, for no worthwhile reason.
. The Court at that point made an intriguing reinforcing observation. Said the Court:
The Court of Appeals relies on a requirement of prejudice to overcome the third Coopers & Lybrand requirement that the ruling “be effectively unreviewable on appeal from a final judgment." ... Yet by reversing the decision of the District Court on the interlocutory appeal, the Court of Appeals implicitly held that a showing of prejudice is not required on interlocutory appeal.... [I]f establishing a violation of one’s right to counsel of choice in civil cases requires no showing of prejudice, ... the propriety of the trial court’s disqualification order can be reviewed as effectively an appeal of a final judgment as on an interlocutory appeal.
472 U.S. at 438, 105 S.Ct. at 2765 (emphasis added).
*1163What makes that discussion puzzling is that on review of a trial court order granting disqualification of counsel on an interlocutory appeal (ordinarily a pre-trial order), the review standard is abuse of discretion, and there is then of course no trial record yet against which to measure prejudice. On review after final judgment there is of course a trial record, and in this jurisdiction, as in others, the test of prejudicial error is statutorily required to be applied. D.C.Code § 11 — 721(e). Therefore, the implication attributed to the holding of the Court of Appeals is not readily understood.