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KREBS v. JOHNS-MANVILLE CORP.

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA


June 4, 1980

Margaret M. KREBS, Executrix of the Estate of Michael H. Krebs, and Margaret M. Krebs, in her own right
v.
JOHNS-MANVILLE CORPORATION et al.

The opinion of the court was delivered by: HUYETT

MEMORANDUM AND ORDER

Certain defendants in this vigorously litigated asbestos case have moved to disqualify plaintiff's counsel. The majority of facts relevant to this motion are uncontested. See Stipulation of Facts, attached hereto as Appendix "A". Those facts may be summarized as follows: John D. O'Keefe was associated with Blank, Rome, Comisky & McCauley for several years prior to April 2, 1979, when he opened his present office. While at Blank, Rome, he obtained Monsey Products Company (Monsey), a manufacturer of building products, as a client. Mr. O'Keefe's work at Blank, Rome was in the Commercial Department. He directed to the appropriate department at Blank, Rome any matter that arose in his representation of Monsey, which included matters of real estate, taxation, labor, and litigation. The litigation work, however, did not involve any personal injury claims or asbestos litigation. During his representation of Monsey at Blank, Rome, Mr. O'Keefe was named an associate member of the Legal-Medical Affairs Committee (the Committee) of the Asbestos Information Association (AIA). Monsey was a member of AIA. Although he attended no meetings of the Committee or of AIA, Mr. O'Keefe did receive various memoranda prepared for AIA by its special counsel. One such memorandum, dated October 12, 1978, is referred to as the "State of the Medical Art Memorandum."

 While Mr. O'Keefe was still at Blank, Rome, the firm began its representation of Michael Krebs. *fn1" That representation began around April 3, 1978, and originally involved a workmen's compensation matter which has since been expanded to encompass this action. For approximately one year, therefore, Mr. Krebs and Monsey were both clients of Blank, Rome. When Mr. O'Keefe left Blank, Rome, he took his client Monsey and, to the best of his knowledge, all relevant documents with him. Blank, Rome no longer represents Monsey in any way.

 Monsey has at no time been a party to this action. In fact, based upon the record in this action, it appears that Monsey has never been a defendant in any asbestos litigation. Stipulation of Facts P 5. Certain defendants in this action, however, are also members of AIA and the Legal-Medical Affairs Committee. Purporting to "stand in the same shoes as Monsey Products Company," they have moved to disqualify plaintiff's counsel for alleged violations of Canons 4, 5 and 9 of the Code of Professional Responsibility. In connection with this motion, one of the moving defendants has submitted for in camera inspection the various memoranda Mr. O'Keefe received from AIA while he was at Blank, Rome. Movants contend that these memoranda were confidential and privileged and involved claims identical to plaintiff's claim in this action.

 It has been noted that

 

the disqualification process rests on three major ethical concepts. First, an attorney shall not reveal the confidences of his client. This principle assures the client that whatever he says to his attorney will remain confidential and thus facilitates communication between client and attorney. Second, an attorney must exercise independent judgment on behalf of his client. The attorney's allegiance to the client's cause, undivided by his personal interests or another client's interests, helps to ensure the client of adequate representation. Finally, the Code's most stringent ethical principle pertaining to disqualification states that an attorney shall avoid even the appearance of impropriety.

 Note, "Motions to Disqualify Counsel Representing an Interest Adverse to a Former Client," 57 Texas Law Review 726, 728 (1979) (footnotes omitted). Although these concepts are easily stated, their application requires a close analysis of the facts of each case. Motions to disqualify must be approached with great care since they implicate numerous important interests, including the public's interest in the conduct of the bar, confidence in our legal system, confidences of past or current clients, and a party's interest in maintaining the representation of its choice. When faced with motions of this nature, courts must not be reluctant to order withdrawal where required or to deny the motion if disqualification is not warranted.

 The facts of this case are somewhat unique. Unlike the typical disqualification case, the former client or current client whose interests are supposedly being infringed is neither a party in this action nor moving for disqualification. Rather, the facts of this case are considerably more attenuated. I have decided that under the facts of this case, disqualification is not required.

 First of all, I note that Monsey is no longer a client of Blank, Rome. There is no real danger, therefore, that Blank, Rome's zeal in its representation of its current client will be diminished in any manner. There has certainly been no intimation that plaintiff is in any way dissatisfied with her present counsel. I do not believe that Canon 5 requires disqualification on the facts of this case.

 In regard to Canon 4 and the concerns of preserving confidences of a client, the Third Circuit "has adopted the position that an attorney should be disqualified if he may have acquired material that is substantially related to his disputed representation in the course of a prior employment." Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 n.12 (3d Cir. 1977). I again find the facts of this case so attenuated as not to require disqualification. First of all, I reiterate that the former client, Monsey, is not a party in this case. *fn2" Secondly, Blank, Rome did not represent Monsey in any asbestos litigation. In fact, it appears Monsey has never been involved in any such litigation. The adversity between Monsey and Blank, Rome's current client is therefore far from clear. Monsey will clearly not be liable for any judgment plaintiff receives in this case. It may be that in a certain sense Monsey is "interested" in seeing defendant verdicts in cases of this nature. Defendants suggest, for example, that Monsey's insurance rates may be affected by the possibility that it could be a defendant in a suit of this nature. They also suggest that Monsey must pay attorney's fees to monitor asbestos litigation. Assuming these suggestions are correct, they lack what we consider to be concrete indicia of adversity. Although they might assume greater significance if Monsey were still a client of Blank, Rome, on the facts of this case I find them to be unpersuasive. I am therefore faced with a situation in which the former client is not a party, has not been shown to have concrete adversity to plaintiff, and has not been represented in similar litigation by plaintiff's counsel at any time.

 However, it is true that Blank, Rome, through Mr. O'Keefe, represented Monsey on the Legal-Medical Affairs Committee which was concerned with asbestos litigation in general. I note initially that AIA, like Monsey, is not a party to this action. Moreover, Mr. O'Keefe was not counsel to AIA, but was Monsey's representative on the Committee. There is no basis, therefore, for contending that Blank, Rome, through Mr. O'Keefe, represented other members of AIA who are parties to this action. More importantly, however, a review of the memoranda Mr. O'Keefe obtained by virtue of his membership on the Committee reveals that no confidences of Monsey, or, for that matter, of any other members of the Committee, concerning this case or any other case, were transmitted. *fn3" The memoranda, although well researched and thoughtfully prepared, contain, for the most part, a hornbook discussion of several areas of law relating to asbestos cases. The most significant document, referred to by the parties as the State of the Medical Art Memorandum, contains material that would no doubt be of interest to plaintiff's counsel. However, for the most part the document consists of a discussion of reported cases and other matters of public record. Although the preparation of the documents undoubtedly required painstaking research and effort, and although it may well be that plaintiff's counsel is not entitled to obtain this document through discovery from the current defendants, the document is devoid of any confidential information passed from any member of AIA to its special counsel or of any specific factual information about this case. Although the memorandum discusses certain defenses that defendants to asbestos cases may raise, this discussion makes no startling revelations that are not general knowledge among attorneys who litigate in this area. Coupled with the other attenuated circumstances which we discussed before, the absence of confidential information in the documents purportedly showing the confidences Mr. O'Keefe received is a further attenuation leading us to the conclusion that disqualification is not required. *fn4"

  I must finally consider whether Blank, Rome's continued representation creates an appearance of impropriety. *fn5" In a certain sense, it may have been preferable if this particular factual situation had not arisen. However, as the previous discussion discloses, I find that Blank, Rome has not violated either Canon 4 or 5 by its actions in this case. To be sure, an appearance of impropriety exists in the defendants' eyes. However, before I order disqualification for an appearance of impropriety, I believe that the appearance of impropriety must be one that can reasonably be drawn. I do not find that to be the case in this action. In view of the extreme attenuation of the facts in this case, I do not believe that Blank, Rome's actions would cause a reasonable person to question the integrity of our legal system. On the contrary, I believe that more damage would arise if the perception were created that a party to litigation could be denied the counsel of his or her choice due to counsel's prior representation of a client which is not a party to the action at issue, which has not been demonstrated to have an adverse interest to the present client, and which had not imparted to its prior counsel any confidences pertaining to the subject matter of the present action. In such a situation, in which no violation of Canon 4 or 5 appears, I believe there is not a sufficient appearance of impropriety to warrant disqualification.

 ORDER

 NOW, June 4, 1980, upon consideration of the motion to disqualify plaintiff's counsel, the memoranda submitted by the parties, the stipulation of facts, the affidavits filed of record, and after in camera inspection of relevant documents, IT IS ORDERED that the motion is DENIED.

 Appendix "A" IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARGARET M. KREBS, EXEC. OF CIVIL ACTION THE ESTATE OF MICHAEL H. KREBS AND MARGARET M. KREBS IN HER OWN RIGHT vs. JOHNS-MANVILLE CORPORATION NO. 78-2299 ET AL

19800604

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