FEINBERG, Circuit Judge (with whom KAUFMAN, Chief Judge, and MANSFIELD, OAKES and TIMBERS, Circuit Judges, concur):

In this en banc proceeding, we are called upon to consider two significant issues: the appealability of orders denying a motion to disqualify an attorney and the standard to be applied by the trial judge in ruling upon such motions. Clovis McAlpin and Capital Growth Real Estate Fund, Inc., two of numerous defendants in a suit seeking over $24 million for violation of federal securities laws, appeal from an order of the United States District Court for the Southern District of New York, Henry F. Werker, J., denying their motion to disqualify the law firm representing plaintiffs. The appeal was first heard by a panel of this court, which concluded that the trial judge had erred in denying defendants' disqualification motion. 606 F.2d 28 (2d Cir. 1979). A majority of this court voted to grant en banc reconsideration of the appeal, and directed the parties to brief both the merits of the appeal and also the question whether an order granting or denying a disqualification motion should be appealable. Subsequently, the parties and a number of amici filed comprehensive briefs on the issues before the en banc court. After full consideration, we affirm the order of the district court and vacate the earlier decision of the panel. We also hold that henceforth orders denying disqualification motions will not be appealable, thus overruling our en banc decision in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974). The reasons for these rulings are fully set forth below.

I. The Facts

Appellants' motion to disqualify is based on the prior participation of Theodore Altman, now a partner in the law firm representing plaintiffs-appellees, in an investigation of and litigation against appellants conducted when he was an Assistant Director of the Division of Enforcement of the Securities and Exchange Commission (the SEC). In September 1974, after a nine-month investigation, the SEC commenced an action in the United States District Court for the Southern District of New York against Clovis McAlpin and various other individual and institutional defendants. The complaint alleged that McAlpin and the other defendants had looted millions of dollars from a group of related investment companies, referred to here collectively as the Capital Growth companies; McAlpin was the top executive officer of these companies. The SEC suit sought, among other things, the appointment of a receiver to protect the interests of shareholders in the Capital Growth companies. When McAlpin fled to Costa Rica and certain other defendants failed to appear, the SEC obtained a default judgment; in September 1974, Judge Charles E. Stewart appointed Michael F. Armstrong, the principal appellee in this appeal, as receiver of the Capital Growth companies. See SEC v. Capital Growth Company, S. A. (Costa Rica) et al., 391 F.Supp. 593 (S.D.N.Y. 1974).

One of Armstrong's principal tasks as receiver for the Capital Growth companies is to recover all moneys and property misappropriated by defendants; to further this task, Armstrong was authorized to initiate litigation in the United States and abroad. In October 1974, Judge Stewart granted Armstrong's request to retain as his counsel the New York firm of Barrett Smith Schapiro Simon. Shortly after the appointment of Armstrong, the SEC made its investigatory files available to him, in accordance with its practice, we are informed in its brief, of assisting "the efforts of receivers who have been appointed by the courts in Commission law enforcement actions." Cf. SEC v. Everest Management Corp., 475 F.2d 1236, 1240 (2d Cir. 1972). The Barrett Smith firm reviewed these files, conducted its own investigation for the receiver, and assisted him in taking possession of various Capital Growth properties in the continental United States and in Puerto Rico. For the next year and a half, we are told, Barrett Smith devoted approximately 2,600 hours to assisting the receiver, which included the services of five partners and eight associates; a little over half of this time was spent preparing for litigation.

In early 1976, however, the receiver and Barrett Smith became aware of a potential conflict of interest involving an institutional client of Barrett Smith that might become a defendant in litigation brought by the receiver. Thus, despite Barrett Smith's substantial investment of time, the receiver concluded that it was necessary to substitute litigation counsel. The task, however, was not an easy one; McAlpin had fled to Costa Rica with most of the assets of the Capital Growth companies and hence the funds available to Armstrong to secure new counsel were quite limited. It was therefore necessary to find a firm that could not only handle difficult litigation in Costa Rica and in the United States, but would also commit itself to conclude the task, even if little or no interim compensation was available. Moreover, it was important to retain a law firm large enough to cope with the immense paper work soon to be generated by the firms that would probably represent the institutional defendants.

Because of these considerations, appellees assert, the receiver focused on firms already involved in litigation against Robert L. Vesco, who, like McAlpin, had fled to Costa Rica rather than face possible prosecution for numerous alleged securities fraud violations. After abortive negotiations with two such firms, the receiver in April 1976 retained the law firm of Gordon Hurwitz Butowsky Baker Weitzen Shalov, the firm that is the target of appellants' disqualification motion. According to Armstrong, the Gordon firm was chosen in part because one partner, David M. Butowsky, was then Special Counsel to International Controls Corporation and was involved in legal work in Costa Rica relating to the alleged Vesco defalcations, while another partner had specialized experience in prosecuting complex fraud cases. In accepting the representation, the Gordon firm agreed to "conduct all Capital Growth litigation through to a conclusion" even if the receiver could not compensate the firm as the litigation progressed.

In October 1975, some seven months before the receiver obtained substitute counsel for Barrett Smith, Theodore Altman ended his nine-year tenure with the SEC to become an associate with the Gordon firm. At the time of his resignation, Altman had been an Assistant Director of the Division of Enforcement for three years, and had about twenty-five staff attorneys working under him. As a high-ranking enforcement officer of the SEC, Altman had supervisory responsibility over numerous cases, including the Capital Growth investigation and litigation. Although he was not involved on a daily basis, he was generally aware of the facts of the case and the status of the litigation. The SEC's complaint was prepared and filed by the staff of the New York Regional Administrator, and the litigation was handled by the New York office. Altman's name appeared on the SEC complaint, although he did not sign it.

At the time that Altman joined the Gordon firm, the receiver had no reason to know that Altman had left the SEC or to be aware of his new affiliation. Subsequently, during the initial meetings with the Gordon firm, Armstrong first learned that Altman had recently become associated with the firm. Both the Gordon firm and Barrett Smith researched the question of the effect of Altman's prior supervisory role in the SEC suit. The two firms concluded that under applicable ethical standards discussed in Part IV of this opinion, Altman should not participate in the Gordon firm's representation of the receiver, but that the firm would not be disqualified if Altman was properly screened from the case. The matter was brought to the attention of Judge Stewart, who nonetheless authorized the receiver to retain the Gordon firm. Shortly thereafter, the firm asked the SEC if it had any objection to the retention, and was advised in writing that it did not, so long as Altman was screened from participation. Barrett Smith then turned over its litigation files to the Gordon firm, including those received from the SEC; in September 1976, the receiver filed the action by plaintiffs-appellees against defendants-appellants that gave rise to this appeal.

In June 1978, almost two years after the commencement of this action, appellants filed their motion to disqualify the Gordon firm because of Altman's prior activities at the SEC. In December 1978, Judge Werker, to whom the case had been reassigned, denied the motion. In his opinion, the judge concluded that the Gordon firm had carried out the letter and spirit of the relevant bar association ethical rulings, that the firm's representation of the receiver was not unethical and did not threaten the integrity of the trial, and that appellants had suffered no prejudice as a result of the representation. 461 F.Supp. 622 (S.D.N.Y. 1978). As already indicated, in September 1979 a panel of this court reversed the decision of the district court; in December 1979, this en banc proceeding was ordered and a briefing schedule fixed. We now turn to the issues before us.

II. Appealability

On our own motion, we asked the parties to brief the question of appealability because we have become concerned over the practical effects of our decision six years ago in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974) (en banc), which overruled our prior practice and allowed immediate appeals from orders denying disqualification. That concern now leads us to re-examine the conceptual basis of Silver Chrysler.

As we pointed out recently in Eckles v. Furth, 557 F.2d 953, 955 (2d Cir. 1977), "[t]he appealability of disqualification orders has had a checkered history in this court." Before Silver Chrysler, orders granting a motion to disqualify were generally held to be appealable, albeit without much discussion. See, e. g., W. E. Basset Co. v. H. C. Cook Co., 302 F.2d 268 (2d Cir. 1962) (per curiam). The rationale was stated to be that "[a]n order granting disqualification seriously disrupts the progress of the litigation and decisively sullies the reputation of the affected attorney . . .." Fleischer v. Phillips, 264 F.2d 515, 517 (2d Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959). On the other hand, orders denying a motion to disqualify were usually viewed as nonappealable. Id. However, our unanimous en banc opinion in Silver Chrysler changed the latter rule so that orders granting and orders denying disqualification motions were henceforth both immediately appealable as a matter of right.

The result of obtaining that surface symmetry soon manifested itself. In recent opinions, many members of this court have noted that the availability of an immediate appeal has seemingly contributed to the proliferation of disqualification motions and the use of such motions for purely tactical reasons, such as delaying the trial. See, e. g., Allegaert v. Perot, 565 F.2d 246, 251 (2d Cir. 1977); W. T. Grant Co. v. Haines, 531 F.2d 671, 677-78 (2d Cir. 1976); Lefrak v. Arabian American Oil Co., 527 F.2d 1136, 1138-39 (2d Cir. 1975); J. P. Foley Co., Inc. v. Vanderbilt, 523 F.2d 1357, 1359 (2d Cir. 1975) (Gurfein, J., concurring); see also Van Graafeiland, Lawyer's Conflict of Interest — A Judge's View (Part II), N.Y.L.J., July 20, 1977, p. 1, col. 2. While we cannot determine with precision the amount of the increase in such motions, we are left with the clear impression that they have substantially grown in number. More significantly, we see in microcosm in this appeal the practical effect on the progress of a litigation of a rule allowing appeals from denials of disqualification motions. Since June 1978, when appellants moved to disqualify the Gordon firm, the litigation in the district court has been frozen in its tracks. We recognize that the en banc procedure has inevitably contributed to the period of delay, but the bulk of the delay has stemmed from the initial appeal of the denial of disqualification. Such a prolonged interruption in a litigation charging serious abuses of the securities laws raises grave questions of judicial administration. And while such concerns by themselves do not justify a conclusion that Silver Chrysler was improperly decided, they do suggest that a careful reconsideration of the issue of appealability is appropriate. That reconsideration, we find, reveals that the conceptual basis of Silver Chrysler was flawed.

The basis of our decision in Silver Chrysler was that appeals from denials of disqualification motions fell within the narrow exception to the final judgment rule recognized by the Supreme Court in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Cohen held that certain orders were immediately appealable (1) if they were collateral to the merits; (2) if denial of an immediate appeal would result in irreparable damage to the party seeking review; and (3) if the issue raised was "too important" to "be deferred until the whole case is adjudicated." In concluding that denials of disqualification motions were immediately appealable, Silver Chrysler simply noted that "[a]ll three prerequisites of Cohen are met" without providing any detailed analysis. 496 F.2d at 805. While it is clear that rulings on disqualification motions are collateral to the merits, thus satisfying the first requirement of Cohen, the second and third requirements are not so easily disposed of.

With regard to the adequacy of review on appeal after final judgment, Silver Chrysler flatly concludes that it would be "fatuous to suppose that [such] review . . . will provide adequate relief." 496 F.2d at 805. It is true that a party whose disqualification motion is denied will be forced, if denied an immediate appeal, to bear the time and expense involved in a trial that may possibly be tainted. Nonetheless, we do not think the harm caused by erroneous denial of a disqualification motion differs in any significant way from the harm resulting from other interlocutory orders that may be erroneous, such as orders requiring discovery over a work-product objection or orders denying motions for recusal of the trial judge. In those situations, we have held that no immediate appeal is available as a matter of right. American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 281-82 (2d Cir. 1967); Rosen v. Sugarman, 357 F.2d 794, 796 (2d Cir. 1966). Moreover, the harm caused by an erroneous denial of a disqualification motion is usually not irreparable since this court retains its traditional power to grant a new trial if the district court's ruling ultimately turns out to be incorrect. Furthermore, in those rare cases where irreparable harm is truly threatened, an immediate appeal might be available through certification pursuant to section 1292(b) or, possibly, through a writ of mandamus. See Note, The Appealability of Orders Denying Motions for Disqualification of Counsel in the Federal Courts, 45 U.Chi.L.Rev. 450, 468-80 (1978) (hereafter referred to as Chicago Note). Finally, it should be remembered that the trial judge also retains power to protect the trial against taint, either through the issuance of protective orders or, if necessary, through reconsideration of the need for disqualification.

Similarly, we now think that Silver Chrysler misconstrued the third Cohen requirement that the issue be "too important to be denied review" by an immediate appeal. Cohen dealt with the legal issue whether defendants in stockholder derivative actions had the right to require plaintiffs to post security for costs; the Court, however, specifically noted that its decision did not mean that "every order fixing security is subject to appeal." 337 U.S. at 547, 69 S.Ct. at 1226. Thus, the Cohen exception to the final judgment rule appears to have been primarily, though perhaps not exclusively, directed towards interlocutory appeals raising potentially decisive legal, as opposed to factual, questions. In contrast, most disqualification motions involve primarily factual, rather than legal, determinations, e. g., is there a threat of taint; is the screening adequate; is there a "substantial relationship" between prior and present representations. Such determinations therefore do not usually present "serious and unsettled question[s]" within the meaning of Cohen. 337 U.S. at 547, 69 S.Ct. at 1226. Cf. Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int'l, Inc., 455 F.2d 770, 773 (2d Cir. 1972); Donlon Industries, Inc. v. Forte, 402 F.2d 935, 937 (2d Cir. 1968). Furthermore, in disqualification cases that do raise important and unresolved legal issues, immediate review under section 1292(b) or by mandamus might be available. See Community Broadcasting of Boston, Inc. v. F.C.C., 546 F.2d 1022, 1028 n. 40 (D.C.Cir. 1976). Finally, we do not think that the public importance of the ethical questions raised by disqualification motions requires the right to an immediate appeal. The normal appellate process, coupled with the judicious use of certification and mandamus, is perfectly adequate to vindicate this interest, as it has been held to be in the related, but more serious, situation when a district judge has denied a motion for his recusal. See Rosen, supra, 357 F.2d 794.

Thus, because we conclude that the requirements of Cohen are not met, we overrule Silver Chrysler and hold that orders denying disqualification motions are not immediately appealable. We realize that in doing so we part company with several circuits that have accepted the Silver Chrysler rule. See, e. g., Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706 (7th Cir. 1976); Fullmer v. Harper, 517 F.2d 20 (10th Cir. 1975). However, we are more persuaded by the arguments against the Silver Chrysler rule raised by other courts, see, e. g., In re Multi-Piece Rim Products Liability Litigation, 612 F.2d 377 (8th Cir.) (en banc), cert. granted sub nom. Firestone Tire Rubber Co. v. Risjord, ___ U.S. ___, 100 S.Ct. 2150, 64 L.Ed.2d ___ (1980); Melamed v. ITT Continental Baking Co., 592 F.2d 290 (6th Cir. 1970); Community Broadcasting, supra, 546 F.2d 1022, and by such commentators as Professor Moore. See 9 Moore's Federal Practice, ¶ 110.13[10] at p. 190 (2d ed. 1975) (approving 2d Circuit pre- Silver Chrysler rule).

We do not reach the same conclusion, however, with respect to orders granting disqualification motions. In such cases, the losing party is immediately separated from counsel of his choice. If the order is erroneous, correcting it by an appeal at the end of the case might well require a party to show that he lost the case because he was improperly forced to change counsel. This would appear to be an almost insurmountable burden. In addition, permitting an immediate appeal from the grant of a disqualification motion does not disrupt the litigation, since the trial must be stayed in any case while new counsel is obtained. Moreover, the grant of a disqualification motion may effectively terminate the litigation if the party whose counsel is disqualified cannot afford to hire new counsel to begin the litigation anew. Such considerations are obviously pertinent, for example, in this case. See notes 2-3 and accompanying text supra. Furthermore, the granting of a disqualification motion by a district judge is a fair indication that a nonfrivolous issue has been raised; there is no similar assurance that appeals from denials of disqualification motions will raise a substantial question. Thus, it is far less likely that appeals from orders granting disqualification motions will be taken purely for tactical reasons. Finally, disqualification often impairs the reputation of the disqualified firm or attorney, and this injury may never be corrected on appeal if the party is satisfied with the performance of his new counsel. For all these reasons, we now agree with then Chief Judge Clark's view, expressed well before Silver Chrysler, that grants of disqualification motions are more important and potentially more harmful than denials of such motions and should therefore be immediately appealable as a matter of right. See Fleischer v. Phillips, supra, 264 F.2d at 517.

III. Advisability of reaching merits

Since we conclude that orders denying disqualification motions are not immediately appealable, it would ordinarily be appropriate for us merely to dismiss the appeal in this case and allow the litigation to continue in the district court to its conclusion. At that time, of course, the defendants could appeal any adverse judgment to this court and could raise, among other things, the argument that Judge Werker's failure to disqualify the Gordon firm prejudiced them and that therefore the judgment should be reversed. Nevertheless, we believe there are strong reasons in the unusual context of this case to reach the merits of the appeal rather than to dismiss it.

We note, to begin with, that in In re Multi-Piece Rim Products Liability Litigation, supra, 612 F.2d at 379, and in Melamed v. ITT Continental Baking Co., supra, 592 F.2d at 295, the Eighth and Sixth Circuits both held denials of disqualification motions to be nonappealable but nonetheless decided the merits of the appeals before them. Moreover, given the procedural posture of this case, there are particularly compelling reasons to reach the merits. First, a refusal to do so will leave the law of the circuit on attorney disqualifications in a muddled state. Although the effect of our en banc decision will be to vacate the panel's earlier decision in this case, the panel's opinion will nonetheless suggest that this circuit is split on the applicable standard for disqualification motions, particularly when the panel decision is read in conjunction with Board of Education v. Nyquist, 590 F.2d 1241 (2d Cir. 1979). In addition, if we hold denials of such motions to be nonappealable but do not resolve the substantive question here presented, we shall effectively cut the district courts adrift, with no clarification of the law of the circuit, and a greatly diminished opportunity in the future to obtain necessary guidance. Moreover, failure to reach the merits will leave the district court supervising this litigation in a particularly untenable position; it must either adhere to its original ruling and proceed with a law firm that a panel of this court has said should not be in the case, or it must rescind its prior ruling and disqualify the firm, thereby precipitating another pretrial appeal, which might well result in reversal by a different panel. Finally, it would be an enormous waste of judicial resources simply to dismiss the appeal, now that all judges of the court have had an opportunity to consider the merits and defendants will undoubtedly appeal the identical issue if they are unsuccessful at trial.

Accordingly, we conclude that we should address the merits of the appeal before us.

IV. The Merits

In his thorough opinion refusing to disqualify the Gordon firm, Judge Werker reviewed the facts set forth in Part I of this opinion and carefully analyzed the ethical problem defendants had raised. He noted that Altman was concededly disqualified from participating in the litigation under Disciplinary Rule 9-101(B) of the American Bar Association Code of Professional Responsibility. That Rule prohibits an attorney's private employment in any matter in which he has had substantial responsibility during prior public employment. The judge then considered the effect of Disciplinary Rule 5-105(D), which deals with disqualification of an entire law firm if one lawyer in the firm is disqualified. This issue had been considered by both the American Bar Association (the ABA) and the Committee on Professional and Judicial Ethics of The Association of the Bar of the City of New York (the Association). The ABA, in its Formal Opinion No. 342, had recognized that "[p]ast government employment creates an unusual situation in which an inflexible application of D.R. 5-105(D) would actually thwart the policy considerations underlying D.R. 9-101(B)," 62 ABA Journal 517, 520 (1976), and concluded that, absent an appearance of significant impropriety, a government agency could waive Rule 5-105(D), if adequate screening procedures effectively isolated the former government lawyer from those members of his firm handling the matter. Id. at 521. The Association similarly rejected an absolute rule of disqualification for a law firm because of disqualification of a former government attorney, if the latter is "effectively isolated from the handling of [the] matter." Opinion No. 889, 31 The Record 552, 566 (1976).

Judge Werker then carefully examined the screening of Altman by the Gordon firm, noting that:

Altman is excluded from participation in the action, has no access to relevant files and derives no remuneration from funds obtained by the firm from prosecuting this action. No one at the firm is permitted to discuss the matter in his presence or allow him to view any document related to this litigation, and Altman has not imparted any information concerning Growth Fund to the firm.

. . . . .

[N]othing before this court indicates that Altman, while employed by the SEC, formed an intent to prosecute a later action involving Growth Fund. Indeed, sworn affidavits reveal that he has never participated in any fashion whatever in the Gordon firm's representation of the Receiver, nor has he shared in the firm's income derived from prosecution of this action. And . . . Altman and his two partners Velie and Butowsky have attested under penalty of perjury that Altman has never discussed the action with other firm members. These statements are uncontradicted by defendants and provide a basis for not imputing Altman's knowledge to other members of the firm.

461 F.Supp. at 624-25 (emphasis in original). Under all the circumstances, the district judge concluded that "the proper screening of Altman rather than disqualification of the Gordon firm is the solution to the present dispute." Id. at 626. Accordingly, the motion to disqualify was denied. On appeal, as already indicated, a panel of this court reversed the order of the district court, apparently on the ground that disqualification was required "as a prophylactic measure to guard against misuse of authority by government lawyers." 606 F.2d at 34.

On this rehearing en banc, we are favored with briefs not only from the parties but also from the United States, the Securities and Exchange Commission, the Interstate Commerce Commission, the Federal Maritime Commission, the Commodities Futures Trading Commission and twenty-six distinguished former government lawyers now employed as practicing attorneys, corporate officers, or law professors, all attesting to the importance of the issues raised on appeal. Thus, the United States asserts that a "decision to reject screening procedures is certain to have a serious, adverse effect on the ability of Government legal offices to recruit and retain well-qualified attorneys"; this view is seconded by the other government amici. And the former government lawyers, including two former Attorneys General of the United States and two former Solicitors General of the United States, state that they are all "affected at least indirectly, by the panel opinion's underlying assumption that government lawyers cannot be trusted — trusted to discharge their public responsibilities faithfully while in office, or to abide fully by screening procedures afterwards." While the tone of these assertions may be overly apocalyptic, it is true that a decision rejecting the efficacy of screening procedures in this context may have significant adverse consequences. Thus, such disapproval may hamper the government's efforts to hire qualified attorneys; the latter may fear that government service will transform them into legal "Typhoid Marys," shunned by prospective private employers because hiring them may result in the disqualification of an entire firm in a possibly wide range of cases. The amici also contend that those already employed by the government may be unwilling to assume positions of greater responsibility within the government that might serve to heighten their undesirability to future private employers. Certainly such trends, if carried to an extreme, may ultimately affect adversely the quality of the services of government attorneys.

Not only is the panel decision possibly of great practical importance, the ethical issues it addresses are also complex and are currently being hotly contested by various groups. As previously noted, the ABA in its Formal Opinion No. 342 and the Association of the Bar of the City of New York both approved the use of screening devices in the case of former government attorneys; the Administrative Conference of the United States has also recently sanctioned the use of screening. In contrast, an ABA committee in a recent draft proposal for Model Rules of Professional Conduct apparently omits any provision for relief from disqualification through screening. The issues thus raised have also provoked significant scholarly commentary. See Kaufman, The Former Govern and the Canons of Pro 70 Harv.L.Rev. 657 (1957); Lacovara, Restricting the Private Practice of Former Government Lawyers, 20 Ariz.L.Rev. 369 (1978); Note, The Chinese Wall Defense to Law-Firm Disqualification, 128 U.Pa.L.Rev. 677 (1980) and commentary collected at nn. 9 16 (hereafter referred to as Pennsylvania Note); Note, Ethical Problems for the Law Firm of a Former Government Attorney: Firm or Individual Disqualification, 1977 Duke L.J. 512; Comment, Conflicts of Interest and the Former Government Attorney, 65 Geo.L.J. 1025 (1977).

We do not believe that it is necessary or appropriate for this court to enter fully into the fray, as the panel opinion did. Indeed, the current uncertainty over what is "ethical" underscores for us the wisdom, when considering such issues, of adopting a restrained approach that focuses primarily on preserving the integrity of the trial process. We expressed this view in Board of Education v. Nyquist, 590 F.2d 1241 (2d Cir. 1979), in which we reviewed at length our precedents on attorney disqualification and pointed out:

Our reading of the cases in this circuit suggests that we have utilized the power of trial judges to disqualify counsel where necessary to preserve the integrity of the adversary process in actions before them. In other words, with rare exceptions disqualification has been ordered only in essentially two kinds of cases: (1) where an attorney's conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court's confidence in the vigor of the attorney's representation of his client, . . . or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage . . . . But in other kinds of cases, we have shown considerable reluctance to disqualify attorneys despite misgivings about the attorney's conduct. . . . This reluctance probably derives from the fact that disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and that disqualification motions are often interposed for tactical reasons. . . . And even when made in the best of faith, such motions inevitably cause delay.

Id. at 1246 (citations and footnotes omitted). Judge Mansfield, concurring in Nyquist, pointed out that a trial could also be tainted because:

. . . the former Government attorney might in the later private action use information with respect to the matter in issue which was gained in confidence as a public employee and was unavailable to the other side.

Id. at 1247 n. 1. We ended our review in Nyquist by adopting a restrained approach to disqualification.

Weighing the needs of efficient judicial administration against the potential advantage of immediate preventive measures, we believe that unless an attorney's conduct tends to "taint the underlying trial" . . . by disturbing the balance of the presentations in one of the two ways indicated above, courts should be quite hesitant to disqualify an attorney. Given the availability of both federal and state comprehensive disciplinary machinery, see, e. g., Local Rules of the United States Court of Appeals for the Second Circuit § 46(h) (1978), there is usually no need to deal with all other kinds of ethical violations in the very litigation in which they surface. See Lefrak v. Arabian Am. Oil Co., 527 F.2d 1136, 1141 (2d Cir. 1975); Ceramco, Inc. v. Lee Pharmaceuticals, supra, 510 F.2d [268] at 271 [2d Cir.]. Cf. United States v. Pastore, 537 F.2d 675 (2d Cir. 1976).

Id. at 1246 (citation omitted).

We believe that this approach is dispositive here and requires our affirmance of the ruling of the district court. It is apparent from a close reading of Judge Werker's opinion that he saw no threat of taint of the trial by the Gordon firm's continued representation of the receiver. Nor did the panel opinion in this case challenge that view. Although appellants assert that the trial will be tainted by the use of information from Altman, we see no basis on the record before us for overruling the district court's rejection of that claim. Using the Nyquist analysis, there is certainly no reason to fear any lack of "vigor" by the Gordon firm in representing the receiver; this is not a case where a law firm, by use of a "Chinese wall," is attempting to justify representation of conflicting interests at the same time. Cf. Fund of Funds, Ltd. v. Arthur Andersen Co., 567 F.2d 225 (2d Cir. 1977); Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976). See also Pennsylvania Note, supra, at 684-85, 687-91, 715. Nor is the Gordon firm "potentially in a position to use privileged information" obtained through prior representation of the other side. And finally, the receiver will not be making unfair use of information obtained by Altman as a government official, since the SEC files were turned over to the receiver long before he retained the Gordon firm and Altman has been entirely screened from all participation in the case, to the satisfaction of the district court and the SEC. Nor is there any reason to believe that the receiver retained the Gordon firm because Altman was connected with it or that Altman had anything to do with the retention. If anything, the presence of Altman as an associate at that time was a problem, not a benefit, for the Gordon firm, as the district court, the receiver and the Gordon firm all apparently recognized.

Thus, because the district court justifiably held that the Gordon firm's representation of the receiver posed no threat to the integrity of the trial process, disqualification of the firm can only be based on the possible appearance of impropriety stemming from Altman's association with the firm. However, as previously noted, reasonable minds may and do differ on the ethical propriety of screening in this context. But there can be no doubt that disqualification of the Gordon firm will have serious consequences for this litigation; separating the receiver from his counsel at this late date will seriously delay and impede, and perhaps altogether thwart, his attempt to obtain redress for defendants' alleged frauds. Under the circumstances, the possible "appearance of impropriety is simply too slender a reed on which to rest a disqualification order . . . particularly . . . where . . . the appearance of impropriety is not very clear." Nyquist, supra, 590 F.2d at 1247. Thus, we need not resolve the ethical propriety of the screening procedure used here at this time as long as the district court justifiably regarded it as effective in isolating Altman from the litigation.

We recognize that a rule that concentrates on the threat of taint fails to correct all possible ethical conflicts. In adopting this approach, we do not denigrate the importance of ethical conduct by attorneys practicing in this courthouse or elsewhere, and we applaud the efforts of the organized bar to educate its members as to their ethical obligations. However, absent a threat of taint to the trial, we continue to believe that possible ethical conflicts surfacing during a litigation are generally better addressed by the "comprehensive disciplinary machinery" of the state and federal bar, see Nyquist, supra, 590 F.2d at 1246, or possibly by legislation. While there may be unusual situations where the "appearance of impropriety" alone is sufficient to warrant disqualification, we are satisfied that this is not such a case. Nor do we believe, as Judge Newman asserts, that a failure to disqualify the Gordon firm based on the possible appearance of impropriety will contribute to the "public skepticism about lawyers." While sensitive to the integrity of the bar, the public is also rightly concerned about the fairness and efficiency of the judicial process. We believe those concerns would be disserved by an order of disqualification in a case such as this, where no threat of taint exists and where appellants' motion to disqualify opposing counsel has successfully crippled the efforts of a receiver, appointed at the request of a public agency, to obtain redress for alleged serious frauds on the investing public. Thus, rather than heightening public skepticism, we believe that the restrained approach this court had adopted towards attempts to disqualify opposing counsel on ethical grounds avoids unnecessary and unseemly delay and reinforces public confidence in the fairness of the judicial process.

Accordingly, we vacate the panel opinion in this case and affirm the judgment of the district court.