at Semack and Kavula's direction. (Deposition of Castelbuono at 90).
Castelbuono's delivery to Finnowner's counsel of copies of checks forwarded to First Pennsylvania is similarly not persuasive evidence of Castelbuono's participation in a conspiracy. Indeed Castelbuono could probably have been compelled to produce copies of the checks or manifests
, and the fact that doing so may not have been in plaintiffs' best interests does not constitute a tortious or fraudulent act as to them.
The Court is fully aware that in analyzing the allegedly conspiratorial participation of Castelbuono it has not followed the analysis offered by movant Austrian. Indeed, it may appear that the Court is ruling on a motion not yet made, but the Court can perceive no benefit in avoiding a necessary analytical step. Before it can analyze the responsibility of Austrian, Lance and Stewart, it must determine that there is a genuine issue of triable fact that Castelbuono exceeded the bounds of the lawyer's privilege to advise his client and act on his behalf. If there is no evidence of Castelbuono's own tortious or fraudulent acts, then the issues of respondeat superior and scope of authority to act are irrelevant.
The Court is also aware that the line drawn here distinguishes conduct on the basis of certain facts and circumstances, and that the rules regarding a lawyer's culpability for his client's misdeeds are ambiguous. Certainly, however, nothing done by Castelbuono rises to the level of a knowing fraudulent act, such as characterized the lawyers' conduct in Newburger, Benjamin, or the conduct alleged in Stein. There is an important societal interest in protecting the lawyer from third-party lawsuits, and thus in requiring a showing of a knowingly fraudulent or tortious action by the lawyer before permitting third-party recovery from the lawyer. Cf. D. & C. Textile Corp. v. Rudin, 41 Misc.2d 916, 918-19, 246 N.Y.S.2d 813, 816-17 (Sup.Ct.1964) ("Even if we assume that the attorneys' conduct if performed by others might constitute inducement to breach of contract, the fact that the attorneys were practicing their profession itself confers a privilege which immunizes them from liability at least on the facts of this case.") A lawyer must be able to act decisively on behalf of his client, without fearing that he will provide "the deep pocket" in subsequent litigation. If his advice and activity are wrong or negligent, he is already exposed by virtue of his duty to his client. In the context of this case, for example, if plaintiffs prevail, Castelbuono may have some cause to fear that certain defendants will proceed against him.
Because the Court finds that the record facts fail to establish the first element of Austrian's liability, that is, activity by Castelbuono that would permit plaintiffs to recover from him as a co-conspirator, it need not reach the issues of vicarious liability, authorization or authority. Accordingly summary judgment will be entered for Austrian.
2. Finnowner's Motion to Dismiss
The Court had previously withheld ruling on Finnowners' motion to dismiss based on lack of personal jurisdiction and insufficiency of service of process.
The Court permitted plaintiffs to take discovery solely on the issues of personal jurisdiction and service of process, which they apparently did not do. Nevertheless, plaintiffs gathered information sufficient to demonstrate (1), that defendants Finnowners have substantial contacts with the United States, and are thus capable of being sued, under federal law, in this district, and (2) that Rule 4 of the Federal Rules of Civil Procedure has been satisfied with regard to service over a foreign corporation. Centronics Data Computer Corp. v. Mannesmann, A.G., 432 F. Supp. 659 (D.N.H.1977) and F.R.Civ.P. 4(i)(1)(E). Defendants' ships have made frequent calls at American ports, and thus are subject to the jurisdiction of American federal courts. Affidavits and exhibits demonstrate that service of process adequate under the alternative provisions of F.R.Civ.P. 4(i)(1)(A-E) has been effected.
The Court is well aware that this case, or most of it, began in the Realco litigation, and that an enormous amount of discovery has been taken. Counsel will be directed to assess their discovery and to prepare for submission on proposed final pretrial schedule.