The opinion of the court was delivered by: BECHTLE
This action arises from an explosion and fire which occurred on November 20, 1976, severely damaging the business premises of the plaintiffs, located at 726-728 West Third Street, Chester, Pennsylvania. Plaintiffs Richard and Doris Price, as owners of the building, and plaintiff Casablanca Meat, Inc., as tenant of the building, made claims for various elements of loss against the defendant insurance companies under casualty loss policies then in effect. The defendants retained the Cozen firm almost immediately after the fire. After a thorough investigation, these claims were denied on September 29, 1977. For the purpose of the instant motion to disqualify, it is sufficient to note that the demands for payment under the policies were denied on the ground of the defendants' belief that the fire was not an accident or the result of vandalism but was in some way caused by the acts of some or all of the insureds. The plaintiffs instituted an action in the Court of Common Pleas of Delaware County, Pennsylvania, and on August 23, 1978, the defendants exercised their right of removal to this Court, pursuant to 28 U.S.C. § 1441. The Court has examined the record and finds that there exists diversity of citizenship, that the amount in controversy exceeds $ 10,000 and that, accordingly, this Court has jurisdiction.
The instant motion to disqualify the Cozen firm from representing the defendants is based on the fact that an associate employed by that firm, David R. Strawbridge, Esquire ("Strawbridge"), was deeply involved in a criminal investigation by the United States Attorney's Office into the allegedly suspicious origins of the fire while he was employed by that office as a prosecutor.
The Court, cognizant of its duty and obligation to supervise the professional activities of attorneys practicing before it, Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385-1386 (3d Cir. 1972), held a hearing on the matter and heard testimony, as well as the arguments of counsel. Based upon the evidence submitted and the representations of counsel, the Court makes the following findings:
In light of the allegedly suspicious nature of the fire at 726-728 West Third Street, an intensive criminal investigation was conducted by the United States Attorney ("U.S. Attorney") and the Bureau of Alcohol, Tobacco and Firearms ("ATF"). Strawbridge joined the U.S. Attorney's Office as an Assistant U.S. Attorney in October of 1976 and, while the investigation into the fire was initially managed by another staff attorney in that office, there came a time when Strawbridge became responsible for its continuation. While he was working on the case, Strawbridge worked on many other investigations and prosecutions, as is the practice in the U.S. Attorney's Office. However, during a period of "somewhat less than a year," he had considerable involvement with the contents of the file, the investigative reports of the ATF and with the various persons involved in the case, including some of the plaintiffs. Specifically, he had possession of the file itself, which he reviewed upon receipt. He conferred with various ATF agents, including the case agent, Robert Piccirrilli. In addition, he questioned plaintiff Richard Price and the sole owner of plaintiff Casablanca Meat, Inc., Lee Miraglia, before the grand jury in the fall of 1977 in regard to the very fire that is the subject of the present civil lawsuit. Price was before the grand jury for two and possibly three lengthy sessions, each lasting "a couple of hours." Miraglia was before the grand jury during a single session. Neither Price nor Miraglia invoked any claim of privilege but testified under oath as to their recollections of the events in question.
Strawbridge joined the Cozen firm on June 1, 1978. He stated at the hearing that he had not taken part in the firm's preparation of the defense in this case and that he had not discussed the criminal investigation with any attorney associated with the firm, except to the extent necessary to oppose the instant motion to disqualify. Similarly, Strawbridge represented to the Court that he would not, in the future, discuss the criminal investigation with any attorney in the Cozen firm.
This motion to disqualify was filed on June 28, 1979, after the case was placed on the Court's trial list. Plaintiffs did not discover Strawbridge's association with the Cozen firm until several weeks before that date when plaintiff Richard Price was in the firm's offices on a discovery matter related to this case and happened to recognize Strawbridge as the prosecutor who questioned him before the grand jury during the criminal investigation. Defendants argue that the plaintiffs have waived any objection to the Cozen firm's participation. While it is axiomatic that an objection may be waived, in the case at bar, there is no allegation that the plaintiffs should have discovered at some earlier date that Strawbridge was employed by the Cozen firm. In addition, the Court has an independent obligation to supervise its officers. Richardson v. Hamilton International Corp., supra. Accordingly, the Court finds that the plaintiffs have not waived their objection to the Cozen firm's participation.
The Court begins its discussion by noting that the Code of Professional Responsibility of the American Bar Association ("Code") has been adopted by the United States District Court for the Eastern District of Pennsylvania
and by the Supreme Court of Pennsylvania
as the standard of conduct for all attorneys. In supervising all of its officers, the Court has a responsibility to maintain Public confidence in the legal profession and, accordingly, may disqualify an attorney not only for actual improper conduct but also for failing to avoid even the appearance of impropriety. Richardson v. Hamilton International Corp., supra ; Code of Professional Responsibility, Canon 9, EC9-1, EC9-2. In the case at bar, there is no allegation of actual improper or unethical conduct on the part of Strawbridge, the U.S. Attorney's Office or the Cozen firm. Indeed, the Court makes no such finding because there is no evidence of any kind that any attorney in this case has acted improperly or has not demonstrated concern with his professional obligations. Rather, the Court is primarily concerned with the public's confidence in, and perception of, the legal profession in general, as well as the judiciary and the criminal justice system, now that those two arms of the Government are and have for some time been involved in the case.
The pertinent provisions of the Code are found in Canon 9:
Disciplinary Rule 9-101(B)
A lawyer shall not accept private employment in a matter in which he had substantial responsibility ...