The opinion of the court was delivered by: WEINER
MEMORANDUM OPINION AND ORDER
Gilbert Lewin has been indicted by the Grand Jury, charging him with conspiracy to secure loans by the use of false statements, making false statements for the purpose of influencing a bank to approve a loan, and aiding and abetting in violation of 18 U.S.C. §§ 371, 1014, and 2.
Presently before the Court is the Government's Motion to Disqualify Gilbert Abramson, Esq., Lewin's attorney in this case.
For the reasons set forth below, the motion is granted.
We begin with a brief summary of the facts.
Gilbert Abramson (defendant Lewin's attorney) was formerly a partner in the firm of Eilberg, Corson, Getson and Abramson (Eilberg). In 1973 the Spiewak-Lewin Construction Company (Spiewak-Lewin) became a client of the Eilberg firm. The two principals of Spiewak-Lewin were Gilbert Lewin and Joseph Spiewak, each a 50% shareholder. Lewin is a defendant in this case, and Spiewak is an immunized potential government witness. Beginning in 1974, Abramson began to work directly on matters concerning Spiewak-Lewin, representing the company in all litigation, and only in litigation. In 1976 and 1977, Spiewak individually, Lewin individually, and Edward Gordon organized Pine Valley Estates, Inc. (Pine Valley). Gordon also is an immunized potential government witness. The Eilberg firm represented the Pine Valley principals in the organization of the company and related matters.
Pine Valley was organized to build homes in Philadelphia, with financing to be provided by the Frankford Trust Company (Frankford). Defendants Edwin dSiegner and Paul Catinella are, respectively, vice president and clerk of Frankford.
The indictment charges that the three defendants, along with Spiewak and Gordon, engaged in a conspiracy to obtain loans for Pine Valley by concealing from Frankford that Spiewak-Lewin, and Joseph Spiewak and Gilbert Lewin maintained ownership interests in Pine Valley. As a part of this scheme, Lewin allegedly paid a fee to defendants Siegner and Catinella in order to procure these loans. Lewin and the other defendants are further charged with making false statements for the purpose of influencing a bank to approve a loan, in that they allegedly submitted false vouchers for construction expenses, for which the loan would be used as payment.
In its briefs in support of its motion to disqualify Abramson, and in testimony at the hearing before Judge Huyett, the Government alleges that an attempt was made by Lewin to obtain a false bill for legal services from the Eilberg firm in order to justify a false voucher submitted to the bank. It should be noted that a voucher and bill relating to legal expenses incurred from the Eilberg firm are not specifically mentioned in the indictment.
Subsequent to the departure of Abramson and dissolution of the Eilberg firm, a lawsuit was commenced against Abramson concerning the division of the firm's proceeds, including certain fees allegedly collected by Abramson from Lewin in regard to a lawsuit in which Spiewak-Lewin was a party. One of the former law partners in the Eilberg firm involved in the lawsuit against Abramson is Allan Getson. The Government alleges in its briefs that Getson is a potential prosecution witness against Lewin.
The Government contends that Abramson must be disqualified from further representation of Lewin in this case on the grounds of actual or potential conflict of interest, and advances three arguments in support of its motion. The Government argues first that in the representation of Lewin, Abramson may be forced to reveal the confidential communications of Spiewak and Gordon, his former clients and the two potential government witnesses against Lewin. The Government next advances the argument that Abramson has personal knowledge of some of the facts pertinent to this case, and might reasonably be asked to testify by either side. The Government's third argument is that Abramson has a personal interest in the suit by Getson, his former law partner and a potential witness in this case, as to the division of legal fees from Spiewak-Lewin, and that this personal interest, as well as an alleged personal animosity toward Getson, may influence his ability to render legal advice and services to Lewin.
We are guided in our consideration of professional ethical considerations and attorney conflict of interest by the Code of Professional Responsibility (Code).
Canon 4 of the Code provides: "A Lawyer Should Preserve the Confidences and Secrets of a Client." Ethical Consideration 4-5 ("EC 4-5") under Canon 4 provides as follows:
EC 4-5 A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes. Likewise, a lawyer should be diligent in his efforts to prevent the misuse of such information by his employees and associates. Care should be exercised by a lawyer to prevent the disclosure of the ...