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03/25/88 Law Offices of Seymour M. v. Federal Communications

March 25, 1988





Petition for Review of an Order of The Federal Communications Commission.


Wald, Ruth B. Ginsburg, and Williams, Circuit Judges. Opinion filed by Circuit Judge Ruth B. Ginsburg. Opinion concurring in the judgment filed by Circuit Judge Williams. Dissenting opinion filed by Circuit Judge Wald.


This petition seeks judicial review of an order of the Federal Communications Commission disqualifying petitioner, an attorney, from continuing to serve as counsel in an ongoing agency proceeding.

Judge RUTH B. GINSBURG and Judge WILLIAMS, each writing separately, join in a judgment dismissing the petition.

Chief Judge WALD dissents from the panel's judgment.

GINSBURG, RUTH B., Circuit Judge:

The law offices of Seymour M. Chase petition for review of an order of the Federal Communications Commission (FCC or Commission) disqualifying Chase from appearing as counsel for one of the applicants in a comparative broadcast licensing proceeding. See In re Owens, 104 F.C.C. 2d 848 (Rev. Bd. 1986), reprinted in Joint Appendix at 2, review denied, 2 F.C.C. Rcd 38 (1987) (Commission Order), reprinted in J.A. at *fn1. I conclude that an order disqualifying an attorney from appearing as counsel in an FCC proceeding is currently unreviewable in court when the petition for judicial review is filed by the attorney rather than his client. This conclusion, I believe, is impelled by the reasoning underlying the Supreme Court's decision in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (1985). I therefore vote to dismiss the petition without reaching the merits of Chase's challenge to the Commission order. I.

In April 1985, Liberty Broadcasting Corporation (Liberty) represented by Chase, a member of the District of Columbia bar, filed an application with the FCC for a new television station in Bakersfield, California. One of the competing applicants in the ensuing comparative broadcast licensing proceeding for the Bakersfield station was Harold L. Mullican. In October 1985, an application filed by Chase on behalf of an individual client for a new television station in Newton, New Jersey was amended to name Newton Television, Inc. as the corporate applicant for the Newton station. The amendment, filed by Chase in his capacity as NTI's corporate counsel, indicated that Dr. Samuel Walters was an 18.67% nonvoting stockholder of NTI. On November 21, 1985, Chase, as counsel to Liberty, learned that Mr. Mullican had amended his application in the Bakersfield proceeding to specify a limited partnership, Mullican, Limited Partnership (Mullican), listing Walters as its 70% limited partner. As of the end of November 1985, then, Chase found himself involved in two application proceedings before the FCC -- in the Newton proceeding he represented a corporation in which Walters was a shareholder, in the Bakersfield proceeding he opposed a limited partnership in which Walters was a partner.

On May 10, 1986, nearly six months after he became aware of the state of affairs with respect to Walters, Chase, acting on behalf of Liberty, sought to depose Walters in the Bakersfield proceeding. At the beginning of the deposition session, Chase indicated that he represented NTI in the Newton proceeding. Mullican's counsel objected to Chase deposing Walters and Walters refused to testify. On May 12, Chase terminated his representation of NTI but did not withdraw from representing Liberty in the Bakersfield proceeding. On May 14, Mullican filed a motion to disqualify Chase as Liberty's counsel contending that "Chase's simultaneous representation of Liberty and NTI unavoidably involves the firm in representing differing and discordant interests." Motion to Disqualify Counsel to Liberty Broadcasting at para. 13, reprinted in J.A. at 32.

Upon hearing argument of Mullican's motion on May 19, the presiding Administrative Law Judge immediately made an oral ruling; he granted the motion and disqualified Chase. On May 22, pursuant to 47 C.F.R. § 1.301(a)(5) (1985), the ALJ issued an order postponing the Bakersfield proceeding until September 16, 1986;1 the following day a memorandum opinion was released explaining the ALJ's disqualification order. The ALJ determined that a conflict of interests existed because Chase could have used confidential information concerning Walters obtained in the course of Chase's representation of NTI in the Newton proceeding to cross-examine Walters in the Bakersfield proceeding; such use, the ALJ maintained, could unfairly harm Mullican in relation to Chase's representation of Liberty.

Liberty appealed the order disqualifying Chase to the Review Board which affirmed the ALJ's ruling. In re Owens, 104 F.C.C. 2d 848 (Rev. Bd. 1986), reprinted in J.A. at 2. On August 27, 1986 Chase (not Liberty) filed an application for Commission review of the Board's decision. *fn2 During the pendency of Chase's application to the Commission, Liberty, having secured other counsel, entered into a settlement agreement with the other applicants in the Bakersfield proceeding. The agreement was released on October 10, 1986. On December 23, 1986, the Commission denied Chase's application for review; the order to that effect was released on January 8, 1987. In re Owens, 2 F.C.C. Rcd 38 (1987). Chase promptly sought this court's review of the Commission's disqualification order.

At oral argument the panel stated its concern about the reviewability of Chase's petition and instructed the parties to submit supplemental briefs responding to the question:

Is the disqualification ruling addressed in the petition a judicially reviewable order under 28 U.S.C. § 2342 and 47 U.S.C. § 402(a)? See ...

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