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November 16, 1978

Edward RAVERT et al.

The opinion of the court was delivered by: HUYETT


Plaintiff Joseph Renshaw (Renshaw) has filed a suit pursuant to 42 U.S.C. § 1983 and various constitutional provisions against defendant Edward Ravert (Ravert), other members of the Philadelphia Police Department, and the City of Philadelphia. The case is presently before us on defendant Ravert's motion for the disqualification of plaintiff's counsel, John J. Hagarty, Esquire, and Daniel Sherman, P.C.

 There is no dispute that on December 10, 1969, Ravert sustained injuries to his head, face, and neck as a result of an automobile accident. Sherman's office represented Ravert in an ensuing personal injury action that was settled without trial. After the instant action was commenced, Sherman's prior representation of Ravert became the basis of an offer by plaintiff's counsel to withdraw from this case. By letter of April 25, 1978, Hagarty relayed the following offer of withdrawal to Ravert's present counsel, Nicholas J. Nastasi:

 Exhibit B to Ravert's Affidavit. Two days later Ravert, through his attorney, requested that Hagarty make good his offer to withdraw:

I have informed my client of your offer to withdraw as counsel in this case. I am authorized to inform you that Mr. Ravert wishes to avail himself of his right to request your disqualification. Furthermore, because your office served as his counsel in the past, Mr. Ravert requests that you should not participate in the future prosecution of this suit in any manner whatsoever. I suggest to you, in order to avoid even the "appearance of impropriety", that you should not refer this case to another office. It seems that the only proper resolution to your disqualification is to refer Mr. Renshaw to other counsel of his choosing with no guidance or direction from your office.

 Exhibit C to Ravert's Affidavit.

 Confronted with Ravert's request that he withdraw, Hagarty conducted "further investigation," discussed the matter with the Professional Guidance Committee of the Philadelphia Bar Association, and decided that his office was not "obligated to withdraw from this case as long as full disclosure is made." Letter of May 10, 1978, from Hagarty to Nastasi, Exhibit D to Ravert's Affidavit.

 After Hagarty refused to withdraw, Ravert moved for his disqualification, invoking Canons 4 and 5 of the Code of Professional Responsibility. The necessity of disqualification was premised in part on the fact that in his counterclaim Ravert alleged injuries similar to those that had precipitated Sherman's earlier representation. Therefore, defendant argued, "(Ravert's) disclosure to Daniel Sherman at that time could seriously impede the ability of Mr. Hagarty and his law office from acting impartially toward defendant Edward Ravert . . . ." Defendant's Memorandum of June 14, 1978, at 1.

 In his response to defendant's motion, plaintiff argued that Sherman's office acquired no confidences as a result of its prior representation of Ravert and that Mr. Hagarty had not been associated with the Sherman office at the time of the prior representation and had done no work pertaining to it. Furthermore, plaintiff contended that defendant was motivated to move for the disqualification of plaintiff's counsel not by concern that confidences would be used against him, but by a fear that the trust enjoyed by the Sherman office in the Roxborough-Manayunk section of Philadelphia would enable it to succeed in securing the evidence necessary to prevail in the underlying action where other attorneys would likely fail.

 In order to assess the possibility that the similarity of the injuries sustained by Ravert in 1969 and allegedly sustained in 1978 might create a situation in which his former attorney might use information gained in the course of the previous representation against him in the instant action, we asked the parties to address the exact nature of the injuries in each incident. In response to our request, the defendant filed an affidavit asserting that he sustained injuries to his head in each instance. Plaintiff submitted an affidavit to us that listed all the medical information pertaining to Ravert that was available as a result of the prior representation. Plaintiff did not supply copies of this affidavit and the supporting memorandum to defendant, however, on the belief that an In camera inspection would be more appropriate. Plaintiff's tactic in this regard became the basis for further assertions on defendant's part that the participation of the Sherman office in this case created the appearance of impropriety, and that plaintiff's counsel was attempting to use against Ravert, in a secretive manner, information obtained through prior representation on his behalf. Letter of September 13, 1978, from Nastasi to Judge Huyett.

 In the meanwhile, defendant tried to acquire from plaintiff's counsel through discovery all material relating to the prior representation of Ravert. Plaintiff's counsel have not complied with the discovery request, and defendant recently moved to compel the discovery of this material.

 Unable to decide the motion to disqualify on the basis of the information before us, we scheduled a hearing and invited the parties to submit further affidavits if they so desired. We specifically advised the parties that one area of inquiry at the hearing would be defendant's motive in filing the instant motion. Defendant chose to submit no further affidavits. Plaintiff submitted additional affidavits, but the allegation of defendant's possible bad faith in filing this motion was not addressed. *fn1"

 On the basis of the information now before us, we consider defendant's motion that plaintiff's counsel be disqualified. We are guided by Rule 11 of the Local Rules of Civil Procedure, which adopts the canon of ethics of the American Bar ...

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