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AMERICAN DREDGING COMPANY v. CITY PHILADELPHIA (07/19/78)

decided: July 19, 1978.

AMERICAN DREDGING COMPANY, APPELLEE,
v.
CITY OF PHILADELPHIA, APPELLANT, V. THE PARTNERSHIP OF MUESER, RUTLEDGE, WENTWORTH & JOHNSTON, AND ITS PARTNERS INDIVIDUALLY, WILLIAM H. MUESER, PAUL WENTWORTH, PHILIP C. RUTLEDGE, ROBERT C. JOHNSTON AND S. V. DESIMONE AND THE BALLINGER COMPANY, A PARTNERSHIP, AND THE INDIVIDUAL PARTNERS, ROBERT S. BALLINGER, JR., JOHN DEMOLL AND LOUIS DEMOLL V. EDWARD A. MAGUIRE, INC.



599 January Term, 1977, Appeal From the Order and Opinion, of the Superior Court of Pennsylvania, Per Curiam, Docketed as of October, Term, 1977, No. 675, Affirming, the Order and Opinion of the Court of, Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division, Per Greenberg, J. Docketed as of March Term, 1972, No. 2588.

COUNSEL

Truscott & Erisman, William L. Gaunt, Otis W. Erisman, Philadelphia, for appellant.

Mark D. Alspach, Richard P. Brown, Jr., Philadelphia, for appellee, American Dredging.

Glenn C. Equi, Philadelphia, for appellee, Ballinger Co.

Daniel Mungall, Jr., Philadelphia, for appellee, Edw. A. Maguire, Inc.

James D. Wilder, Philadelphia, for appellees, Mueser, Rutledge, Wentworth & Johnston.

M. Carton Dittmann, Jr., Philadelphia, for appellee, Phila. Port Corp.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts, J., filed a dissenting opinion. Pomeroy, J., did not participate in the consideration or decision of this case. Packel, former J., did not participate in the decision of this case.

Author: Manderino

[ 480 Pa. Page 180]

OPINION

In February 1972, American Dredging Company (American), the general contractor for the Tioga Marine Terminal Site Construction contract, brought suit on its behalf and on behalf of its subcontractor, Arundel Corporation (Arundel), against the City of Philadelphia (City). The suit claimed damages in excess of five million dollars for delays and other problems allegedly caused by the Philadelphia Port Corporation (Port Corporation), an agency of the City to which management and supervision of the construction of the Tioga Marine Terminal had been delegated. The procedural complexities of the litigation are not relevant here and need not be discussed. Suffice it to say that the matter was eventually scheduled for trial. On November 22, 1976, at a pretrial conference held the day before the scheduled commencement of trial, City orally moved to disqualify plaintiff's co-counsel from participation in the case. City's motion was based on alleged violations of Canons 4, 5, and 9, of the Code of Professional Responsibility.

The Code of Professional Responsibility, adopted by us as the standard of conduct for attorneys of all courts of the Commonwealth, 455 Pa. lvii, is comprised of three distinct but related parts: (1) Canons, which provide general "axiomatic norms" for the legal profession to follow: (2) Ethical Considerations, which are applicable principles, "aspirational in character:" and (3) Disciplinary Rules, which are mandatory and "state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action." Code of Professional Responsibility, Preliminary Statement.

The trial court denied City's motion to disqualify. Pursuant to City's petition to the Superior Court for allowance of an interlocutory appeal, the trial court certified that its interlocutory order involved a controlling question of law as to which there was substantial ground for disagreement, and that an immediate appeal from that order could materially

[ 480 Pa. Page 181]

    advance the ultimate termination of the case. In a memorandum opinion filed subsequent to this order, the trial court stated that it had denied City's motion to disqualify because it was untimely. The trial court did not discuss the merits of City's position. On appeal, the Superior Court affirmed in a per curiam opinion, stating simply that "[t]he motion to disqualify was untimely filed." American Dredging Co. v. City of Philadelphia, 246 Pa. Super. 654, 372 A.2d 848 (1977). We granted City's petition for allowance of appeal and this appeal followed.

The facts pertinent to City's claim of ethical violations are these. At the time of the motion to disqualify, as well as for a period of approximately 11 months prior to that time, Richard P. Brown, Jr., a partner in the Philadelphia office of the law firm of Morgan, Lewis and Bockius, was counsel of record for Arundel, subcontractor to plaintiff American, and a party in interest in American's suit against City although not a named plaintiff. Underlying City's petition were the following allegations: (1) that John P. Bracken, a partner in the Morgan, Lewis and Bockius firm, was an officer, an Executive Committee member, and a Board member of Port Corporation, the instrumentality and agent of the defendant City; (2) that Port Corporation supervised and managed the Tioga Marine Site Terminal project for City, and that it was Port Corporation's actions in that capacity that formed the subject of the litigation commenced by American; (3) that by virtue of Bracken's relationship with Port Corporation, he had received certain confidential information regarding the facts of the litigation commenced by American; (4) that City would be relying on the records and testimony of present or former Port Corporation employees in its defense against American's claims; and (5) that, at the very least, an appearance of impropriety resulted from the simultaneous existence of Bracken's relationship with an agency of defendant City, and representation of American and Arundel, by Bracken's law partner.

Stripped of their procedural trappings, and reduced to simplest terms, the questions before us are: (1) whether

[ 480 Pa. Page 182]

    under the facts of this case, City's motion to disqualify was timely filed, and if so, (2) whether the Canons of the Code of Professional Responsibility bar an attorney from representing the plaintiff in a lawsuit when a partner in that attorney's law firm holds a position of substantial responsibility as an officer and board member of the defendant. We believe both questions should be answered in the affirmative. We therefore reverse the Superior Court's order affirming the trial court's dismissal of City's motion to disqualify. We also order that Richard P. Brown, Jr., and the law firm of Morgan, Lewis and Bockius be disqualified from representing Arundel and American in this matter.

Initially, Brown and Morgan, Lewis and Bockius argue that City's motion to disqualify was properly dismissed because untimely filed. In support of this position it is argued that Brown entered his appearance as co-counsel for American on December 2, 1975, at which time City was represented by the City Solicitor's office; that the City Solicitor was both a Port Corporation Director and member of its executive committee while American's suit against City was pending, and that, therefore, City knew of the relative positions of Brown, and Bracken, his partner at Morgan, Lewis and Bockius. Because City raised no objection to Brown's representation of Arundel or his appearance as co-counsel for American until November 22, 1976, Brown and his law firm now contend that such a motion to disqualify is too late.

City counters that special counsel now representing City is not a member of the City Solicitor's office; that special counsel entered the case only two and one-half months prior to November 22, 1976, and realized the significance of the relationship between Brown and Bracken on the eve of the pretrial conference when a memorandum was discovered indicating that Bracken had received certain information vital to plaintiff's case against City. Alternately, City argues that even if its motion to disqualify was untimely filed, such lack of promptness should not bar City's motion because a motion for disqualification is in the public interest and courts may not act contrary to that interest by permitting

[ 480 Pa. Page 183]

    one party's delay in moving for disqualification to justify a breach of the Code of Professional Responsibility.

In Pennsylvania, the Canons of the Code of Professional Responsibility have the force of statutory rules of conduct for attorneys. Slater v. Rimar, Inc., 462 Pa. 138, 338 A.2d 584 (1975); Schofield Discipline Case, 362 Pa. 201, 66 A.2d 675 (1949). The trial court in the first instance has the power to regulate the conduct of attorneys practicing before it, and has the duty to insure that those attorneys act in accordance with the Code of Professional Responsibility. No specific rule of court governs the timeliness of a motion to disqualify based on alleged ethical violations of the challenged attorney. The court's responsibility cannot be defeated by the laches of the party seeking disqualification, at least where the ...


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