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In re Corn Derivatives Antitrust Litigation

November 15, 1984

IN RE CORN DERIVATIVES ANTITRUST LITIGATION (MDL 414); JOHN E. KOERNER & CO., INC., IMPERIAL PRODUCTS CORPORATION, AND PAN-O-GOLD, INC., APPELLANTS


Appeal from the United States District Court for the District of New Jersey

Author: Seitz

Before: SEITZ and ADAMS, Circuit Judges, and LATCHUM, Senior District Judge*fn*

Opinion OF THE COURT

SEITZ, Circuit Judge.

I.

A group of attorneys representing certain members of the plaintiff class,*fn1 who are consumers of corn derivative products, move for the disqualification of Cochrane & Bresnahan as attorneys for the appellant Pan-O-Gold Baking Company. This motion was made during the pendency of this appeal challenging a order of the district court approving the settlement of the class action.

II. FACTS

The parties tacitly agree that this court should decide this motion on the present record. The pertinent facts are not in dispute. The St. Paul, Minnesota, law firm of Cochrane & Bresnahan ("C&B") was privately retained by the Pan-O-Gold Baking Company, Inc. ("Pan-O-Gold") and Land O'Lakes, Inc. ("Land O'Lakes") to file separate antitrust complaints against the major producers of corn derivative products. Several other actions were brought throughout the country, and all the actions were consolidated by the Multidistrict Litigation Panel into the present action in the district court in New Jersey. C&B continued to represent both Pan-O-Gold and Land O'Lakes, who were named plaintiffs, as well as a plaintiff class member, General Mills, in this litigation.

After consolidation, a partner of C&B, John Cochrane, was named by the district court to be a member of the plaintiffs' steering committee, the group of attorneys that guided the litigation of this matter.

Before this action reached trial, a settlement was negotiated. Prior to the hearing by this district court on the fairness of the settlement, John Cochrane filed a written objection to the settlement on behalf of Pan-O-Gold and Land O'Lakes. Later, on July 30, 1983, Cochrane was informed by an attorney for Land O'Lakes and General Mills that those companies had decided to accept the settlement if it were approved by the district court.

On September 7, 1983, the district court approved the settlement. On October 4, 1983, John E. Koerner & Company, Imperial Products Corporation and Pan-O-Gold, filed a notice of appeal. C&B mailed to the district court a notice of withdrawal as counsel of record for Land O'Lakes on October 18, 1983.*fn2 On this appeal, C&B does not purport to represent anyone other than Pan-O-Gold.

The movants then filed this motion to disqualify C&B as attorneys for Pan-O-Gold before this court on the ground that C&B's continued representation of Pan-O-Gold would violate the controlling standards of professional conduct.*fn3

III. DISCUSSION

A. A DISQUALIFICATION MOTION BEFORE THE COURT OF APPEALS

This disqualification issue was not raised in the district court. We believe, however, that this motion is properly before us. One of the inherent powers of any federal court is the admission and discipline of attorneys practicing before it. See Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. den., 423 U.S. 1038, 46 L. Ed. 2d 413, 96 S. Ct. 574 (1975) (each court may create independent standards and rules for the admission and discipline of attorneys before it); Ramos Colon v. United States Attorney, 576 F.2d 1, 3 (1st Cir. 1978). See also Fed. R. App. P. 46(C) (granting courts of appeals broad powers to discipline attorneys).

To resolve this motion, we must determine the governing standard for professional conduct before this court. Our court of appeals has never formally adopted any particular formulation of the standards of professional conduct. The lack of formal standards, however, cannot mean that the attorneys appearing before us do not have ethical obligations and duties. See United States v. DeFalco, 644 F.2d 132 (3d Cir. 1979) (en banc) (duty of professional conduct required before the court of appeals). Also, while the exact contours of that duty have not been stated, the vast majority of the courts in this country have adopted, with slight variation, the Code of Professional Responsibility promulgated by the American Bar Asociation, and thus, the basic principles of an attorney's duties and responsibilities are clear and easily applied. Further, since each of the ...


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