The opinion of the court was delivered by: WEBER
In anticipation of a lengthy trial in this matter, the Court issued an Order on October 18, 1983 instructing the parties to coordinate their proofs in a way to facilitate the efficient presentation of the evidence. The Court also raised, sua sponte, its concern that among the witnesses listed by the parties there appeared the names of lawyers either previously or presently associated with counsel of record. The Court indicated it would consider the matter carefully to avoid the existence or the appearance of a conflict. A hastily scheduled conference of counsel was held October 20, 1983, with plaintiff's Philadelphia counsel participating by conference phone.
Attorneys James McDonald and Donald Rogala are listed as potential witnesses in the pretrial narratives filed by one or more of the parties.
McDonald is a partner of the defendant Erie Telecommunications, Inc.'s local counsel John Quinn, Jr. (in the firm of Quinn, Gent, Buseck & Leemhuis, Inc.). It was determined at the conference that counsel for the defendant Mr. Quinn would withdraw to avoid the appearance of an impropriety or of a conflict. Accordingly, we hereby ORDER the same and counsel for the defendant Erie Telecommunications, Inc. will retain the services of an alternative local counsel in accordance with the requirements of local rules.
Attorney Rogala is the former City Solicitor responsible for the conduct of negotiations which led to the award of the cable franchise and eventually to this lawsuit. He is currently a de facto partner sharing expenses but not fees with the attorney of record for the defendants City of Erie and Council of the City of Erie, John Wingerter. At no time has Mr. Rogala participated in the proceedings currently before this Court on behalf of the City defendants. We note that this matter might be one easily resolved were the matter to be tried before the Court. Counsel for the plaintiff Teleprompter of Erie, Inc. has indicated that it is unlikely the plaintiff would be willing to waive its right to trial by jury. And a jury may view an attorney as possessing special knowledge of a case and accord his testimony greater weight in light of his relationship with counsel of record. With that in mind, and in light of the fact that Mr. Rogala appears to be a lynchpin in the present controversy, we must address the issue of a potential conflict arising from Mr. Wingerter's involvement as counsel for the City defendants.
Disciplinary Rule 5-102(A) and (B) of the Code of Professional Responsibility (hereinafter "D.R. 5-102 (A) and (B)") provide as follows:
(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in D.R. 5-101(B)(1) through (4).
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.
The Rule is designed to protect the interest of all parties and the reputation of the legal profession. See, 6 J. Wigmore, Evidence § 1911 (Chadbourn rev. ed. 1976).
The Court finds that a more difficult question is presented as to whether Mr. Rogala is actually Mr. Wingerter's partner or a member of the same firm. We find that an adequate evidentiary basis for our analysis exists in the deposition testimony of Mr. Rogala. Under cross-examination by plaintiff's counsel, Mr. Rogala testified as follows:
Q. Is this a partnership or is it some other form of organization?
A. Well, I guess it all depends on what you mean by a partnership. If you're referring to what I always envisioned as a partnership, where you each receive fees and put those into a common fund and then pay your expenses and then share in that common fund; then we're not that type of a partnership. We each share the expenses on an equal basis, as far as the operation of the office -- the library, the copy machines, secretarial personnel. So in that sense, I guess we're kind of a partnership of associates, in that we each maintain our individual practices within the group.
Q. Are pleadings signed in any firm name or are pleadings of yourself, Mr. Wingerter and so on, in your private ...