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KERRY COAL CO. v. UMW

May 1, 1979

KERRY COAL COMPANY, Plaintiff,
v.
UNITED MINE WORKERS OF AMERICA, Arnold Miller, District # 5 of the United Mine Workers of America, Louis A. Antal, Jerry Ashton, Estel Taylor, James Beachem, Brian Short, John Doe, Richard Roe, and all others acting in concert with them or otherwise participating with them or acting on their behalf, Defendants



The opinion of the court was delivered by: SNYDER

MEMORANDUM OPINION

Kerry Coal Company brought action under 29 U.S.C. ยง 187(b) and pendent claims under Pennsylvania tort law for damages to its property and business sustained during the UMW strike of 1977-1978. Kerry Coal now moves to disqualify the firm of Kuhn, Engle and Stein from representing the United Mine Workers of America (the International), District 5 of the United Mine Workers (District 5), Arnold Miller, President of the International, Louis A. Antal, President of District 5, and Estel Taylor, District 5 Executive Board Member, because of a conflict of interest. Kerry Coal argues that depositions, pleadings and exhibits show that it is in the interest of the International to contend that any illegal strike-related activity is attributable to the improper actions of District 5. Kerry Coal claims that although the evidence indicates that the International did in fact advise District 5 that illegal actions by UMW members and the picketing of non-union mines had to stop, counsel for the International, being counsel for District 5 as well and in a conflict position, has not raised this potential defense. Plaintiff also contends that it is in District 5's interest to assert the claim that any illegal strike-related activities occurred as a result of improper actions by the International and suggests that "it may be in the interest" of District 5 and its officers to show that the International failed to order them to take steps to prevent illegal secondary activity in the District, although this would not necessarily relieve District 5 of liability.

 The Plaintiff also states that Jay Kolenc, an organizer for the International, together with the other Defendants, planned illegal interference with its business operations and that the International should minimize Kolenc's participation and attribute responsibility for his actions to District 5, while District 5 should argue that Kolenc was the prime mover of any illegal activity. In addition, Kerry Coal asserts that District 5 Executive Board Member Estel Taylor personally participated in the picketing of Kerry Coal's Franklin Township operations and that it would be in the interest of District 5 to argue that Taylor was acting outside the scope of his authority, and in Taylor's interest to contend he was acting according to the policy and directives of District 5, even if it would not relieve him of liability.

 Kuhn, Engle and Stein respond on behalf of all Defendants it represents that there is no conflict of interest between the International and District 5, between District 5 and Estel Taylor, District Executive Board Member, or between District 5 and other UMW members. They contend that the situation involving conflict as outlined by Kerry Coal contradicts sworn testimony and, therefore, the hypothetical defenses are not available to the International, District 5 or Taylor. For example, counsel admit on behalf of the International that Jay Kolenc is an International organizer and that he was present in Western Pennsylvania during the strike, but contend he was sent there to scout and survey non-union mines for possible future organizing campaigns. According to Defendants' counsel, District 5 authorized lawful picketing at Kerry Coal, but representatives of both the International and District 5 have denied under oath that the International was ever involved in picketing. The conflict does not appear.

 Kuhn, Engle and Stein dispute that the evidence presented by Kerry Coal to demonstrate that District 5 Executive Board Member Taylor was arranging picketing outside of his assigned area of responsibility could be used to demonstrate that he was acting outside the scope of his authority as an Agent for District 5. They contend Taylor's authority as an Executive Board Member of District 5 is not limited by geography and that there is overwhelming evidence of District 5's awareness and ratification of activities by Taylor outside of his assigned sub-area.

 They also argue that allegations that vouchers were deliberately falsified and that the Miners Legal Defense Fund was directly funded and controlled by District 5 present issues of credibility for the jury and, even if true, are irrelevant to the conflict of interest issue.

 Counsel assure the Court that our concern about a potential conflict was brought to the attention of and was fully explained to Harrison Combs, General Counsel for the International, and Kenneth Yablonski, Attorney for District 5, immediately after it was first raised, and they found no conflict to interfere with the continued joint representation by Kuhn, Engle and Stein.

 The pertinent Canon and Rule of Pennsylvania's Code of Professional Responsibility, which was adopted by this Court under Local Rule 22, provides:

 
"Canon 5 A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client"
 
"DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
 
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
 
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
 
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
 
(D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, associate or any other lawyer affiliated with him or ...

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