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SIMONSON v. GMC

December 22, 1976

ALICE B. DOBSON SIMONSON, Administratrix of the ESTATE OF WILLIAM H. SIMONSON
v.
GENERAL MOTORS CORPORATION



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 This civil action, filed January 30, 1976, is a complex personal injury and products liability case, arising from the death of plaintiff's decedent in a motor vehicle accident in Michigan. The court file in the case is voluminous, since the parties have engaged in extensive and hard-fought discovery over the past year. The case is now in the final stages of trial preparation, with counsel facing a January 7, 1977 deadline for the filing of an extensive Final Pretrial Order, and with trial specially listed to commence on January 24, 1977.

 Presently before the Court is a "Motion to Re-Assign Case," filed by plaintiff's counsel on December 7, 1976. Plaintiff alleges that Mr. Mark Shiffman, a law student, presently assigned to our Chambers as a judicial intern, is also employed as a legal intern by the defendant's law firm, and that such dual responsibilities create an appearance of impropriety which should be remedied by re-assignment of this case to another judge. Counsel for the defendant has informed the Court, by letter of December 7, 1976, that he does not oppose the plaintiff's motion. Notwithstanding defendant' lack of opposition to the motion, we have carefully explored the relevant considerations and have concluded that plaintiff's motion to re-assign the case should be denied; our reasons follow.

 1. Factual background of plaintiff's Motion for Re-Assignment

 Although plaintiff's motion sets forth several allegations as to the details of Mr. Shiffman's so-called "dual employment," no affidavit has been submitted in support of those allegations, nor have we held a factual hearing on the issues raised by the motion. However, we believe that the materials which are presently before the court, including the allegations set forth in the motion itself, the facts stated in letters from defendant's counsel, and other facts within our own knowledge of which we may properly take judicial notice, enable us to give plaintiff's motion a full and fair determination at this time.

 Mr. Mark Shiffman is a third-year law student at Temple Law School, (Temple), Philadelphia, Pa. As part of its educational curriculum, Temple has established a program offering students the opportunity to advance their legal training through internships with judges and Federal Magistrates. When we were asked by the School to accept a law student as a judicial intern on a part-time volunteer basis, we agreed to participate in the program. The Law School then assigned Mr. Shiffman to our chambers; He spends one day per week with us, for which he receives academic credit at the Law School, but no compensation whatsoever from the U.S. District Court; he also receives certain related classroom instruction at the Law School.

 Mr. Shiffman began working in our Chambers in September, 1976, and he is still working with us at the present time. He works under the direct supervision of the law clerks; his duties include legal research and the preparation of bench memoranda; his work is closely reviewed by the law clerks. In addition, he is expected to familiarize himself with the daily workings of the Court, through attendance at conferences, hearings, and trials. Shortly after Mr. Shiffman began his judicial internship, he informed us that he had spent the previous summer working as a legal intern for the Philadelphia law firm of Liebert, Short, Fitzpatrick, & Lavin, and that he was continuing to work for that firm on a part-time basis. In the case presently before us, the attorney for the defendant, General Motors Corporation, is George J. Lavin, Jr., Esq., a member of the law firm of Liebert, Short, Fitzpatrick & Lavin. As soon as we became aware of Mr. Shiffman's affiliation with that law firm, we swiftly took precautions to avoid any appearances of impropriety: first, we specifically instructed Mr. Shiffman that he was not to have any participation in this litigation, in his capacity as a judicial intern; second, we instructed our law clerks that they were not to give Mr. Shiffman any assignments related to the instant litigation, nor were they to discuss the case with him; and third, we instructed Mr. Shiffman to make arrangements with the law firm, so that he would no longer be performing any legal services on this particular case, in his capacity as a legal intern for the law firm. We were subsequently informed by Mr. Shiffman that his supervising attorneys at the law firm had agreed that he should no longer receive assignments relating to any of the firm's cases pending before us.

 Moreover, we determined that the details of this unusual situation should be fully explored with counsel for both parties. Consequently, at a settlement conference attended by counsel representing both the plaintiff and the defendant, we raised the matter on our own initiative. We assured counsel that Mr. Shiffman had had no contact with the litigation in our chambers, and that he would have none, and that in our judgment the conduct of the case would not be affected by Mr. Shiffman's presence as an intern here. Since plaintiff's counsel appeared somewhat uncomfortable with the entire situation, we requested that Mr. Lavin advise the court as to the exact extent of Mr. Shiffman's participation in his firm's preparation of the case. Mr. Lavin, responding by letter of November 30, 1976, stated in essence, that: (1) Mr. Shiffman was indeed employed by the firm as a legal intern, and had been so employed since June 1, 1976; (2) the only legal research which Mr. Shiffman had performed in connection with this case, was the preparation of a memorandum relating to a choice of laws issue; (3) Mr. Shiffman presumably familiarized himself with the law firm's file on the case, in order to prepare the memorandum; and (4) Mr. Shiffman accompanied another of the law firm's attorneys to a pre-trial conference on this case, held in our chambers on June 7, 1976, as part of the law firm's effort to expose him to federal pretrial procedures, (and not because Mr. Shiffman had any substantive contribution to make to the conference). It should be noted that Mr. Shiffman was not selected by Temple to serve as an intern until September, 1976. Although Mr. Lavin enclosed, with his letter, a copy of the sole legal memorandum which Mr. Shiffman had prepared, we have chosen not to read that memorandum, and we have, instead, placed it in a sealed envelope. A review of the memorandum would not, at this point, contribute anything to our disposition of the pending motion. Mr. Lavin sent a copy of his letter, together with the enclosed memorandum, to plaintiff's counsel, Martin Heller, Esq.

 2. Basis upon which plaintiff seeks re-assignment.

 In response to Mr. Lavin's letter of November 30, plaintiff's counsel filed his Motion for Re-Assignment, on December 7, 1976. Plaintiff relies upon the following factors in support of the motion: (1) Mr. Shiffman's employment by the law firm of Liebert, Short, Fitzpatrick & Lavin; (2) Mr. Shiffman's review of the firm's file and his preparation of the memorandum of law, in his capacity as a legal intern with the law firm; (3) Mr. Shiffman's attendance at the June 7, 1976, pre-trial conference; and (4) Mr. Shiffman's presence in our chambers, as a judicial intern, one day a week. The motion concludes that, "the appearance of justice and impartiality requires that this case be re-assigned to another judge in this district for the aforementioned reasons." In an accompanying Memorandum of Law, plaintiff argues that "the interest of justice" and "the appearance of impartiality" could best be served by our re-assignment of the case; plaintiff is, however, quick to emphasize that no suggestion of actual impropriety is raised by his motion ; plaintiff's counsel further acknowledges that he first became aware of Mr. Shiffman's dual responsibilities through the disclosure made by this Court, and that Mr. Lavin has voluntarily disclosed the extent of Mr. Shiffman's connection with the case.

 By way of response to the plaintiff's motion, Mr. Lavin has informed the Court that he does not intend to file any document in opposition to the Motion, "in view of the nature of the Motion and Mr. Shiffman's employment by this firm." Mr. Lavin has not, however, joined in the plaintiff's Motion, stating instead that his client has instructed him to abide by the Court's ruling.

 3. Discussion of the merits of the motion.

 For purposes of ruling upon the plaintiff's Motion, we are willing to accept, as true, the factual allegations set forth in the Motion; there is no disagreement between the parties as to the fact of Mr. Shiffman's employment by the law firm, nor as to the scope of the work performed by him in the firm, in connection with this case. However, we do not believe that the facts alleged by the plaintiff are ...


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