Maritrans. Thus, Maritrans does not support Defendant's contention that a court must disqualify an attorney if it finds a conflict of interest notwithstanding a former client's consent to the subsequent representation.
Second, the Third Circuit has left open the question of whether there may be some circumstances where even consent by a former client will not immunize an attorney against a disqualification where the conflicts of interest are severe. In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 162 (3d Cir. 1984). See also Duca v. Raymark Industries, 663 F. Supp. 184, 190 (E.D. Pa. 1986). This Court also need not reach this question in this case because it finds that Defendant has not met its burden under the substantial relationship test to warrant disqualification of Plaintiff's counsel.
Waiver is a valid basis for the denial of a motion to disqualify. INA Underwriters Ins. Co. v. Nalibotsky, 594 F. Supp. 1199, 1204 (E.D. Pa. 1984). That court stated:
Such a finding is justified either when a former client expressly agrees to the attorney's representation of an adversary . . . or when a former client was concededly aware of the former attorney's representation of an adversary but failed to raise an objection promptly when he had the opportunity. In the latter circumstance, the person whose confidences and secrets are at risk of disclosure or misuse is held to have waived his right to protection from that risk.
Id. In determining whether the moving party has waived its right to object to the opposing party's counsel the court should consider the length of the delay in bringing a motion to disqualify, when the movant learned of the conflict, whether the movant was represented by counsel during the delay, why the delay occurred, and whether disqualification would result in prejudice to the nonmoving party. Employers Ins. Co. of Wausau v. Albert D. Seeno Construction Co., 692 F. Supp. 1150, 1165 (N.D. Cal. 1988) In particular, courts should inquire whether the motion was delayed for tactical reasons. Id.; Central Milk Producers Cooperative v. Sentry Food Stores, Inc., 573 F.2d 988, 992 (8th Cir. 1978). See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (1985) ("We share the Court of Appeals' concern about 'tactical use of disqualification motions' to harass opposing counsel."). Courts have not hesitated to deny motions to disqualify counsel brought years after the conflict issue arose. See, e.g., Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85 (9th Cir. 1983) (motion to disqualify defendant's counsel brought about one month before trial date and more than two years after complaint filed); Central Milk Producers Cooperative v. Sentry Food Stores, Inc., 573 F.2d 988 (8th Cir. 1978) (motion to disqualify made more than two years after former client hired counsel to raise conflict issue); Zimmerman v. Duggan, 81 Bankr. 296 (E.D. Pa. 1987) (motion to disqualify brought nearly three years after conflict issue raised in court).
In this case, the movant, Defendant Graphix and its insurer, Fireman's Fund, have been aware of the facts relied upon in support of its motion since October 1989 when Plaintiff's counsel Duffy informed his then current client, Fireman's Fund, through its representative George Bradshaw, that Commonwealth had contacted him and asked him to investigate the possibility of a subrogation claim arising out of the fire in May 1988. After Plaintiff filed the complaint in the present action in May 1990, Fireman's Fund, through Maureen Daley, again acknowledged that it was aware that Duffy had rendered an opinion for Fireman's Fund and assisted in the settlement of Sir Speedy's claim against Fireman's Fund. The file of Fireman's Fund in the present action reflected that Duffy had represented Fireman's Fund in the Sir Speedy matter. Yet, Defendant never objected to Duffy's representation of Commonwealth.
Defendant contends that Fireman's Fund did not object because its employees did not know that they had an absolute right to object to Duffy's representation of Commonwealth even if Duffy never actually obtained confidential information from Fireman's Fund that could be used against it in the present action. Defendant Graphix and its insurer, Fireman's Fund, have been represented by the same law firm (although the name has changed recently and a new attorney is assigned to the case), however, since Commonwealth filed the complaint in this action over two years ago. Fireman's Fund could have sought the advice of its counsel on whether it could prevent Duffy from representing Commonwealth since at least May 1990.
Defendant filed this motion more than two years after this action commenced and three weeks prior to trial. Under these circumstances, it would appear that Defendant's primary reason for filing the motion was to obtain a tactical advantage. This is precisely the type of conduct that courts must be vigilant in preventing. See Pa.R.Prof.Cond. Scope, Rule 1.7 Comment.
Finally, disqualification of Plaintiff's counsel now would result in unfair prejudice to Plaintiff. Plaintiff's counsel has handled all aspects of this case for Plaintiff and has engaged in substantial preparation. It would be unfairly prejudicial to Plaintiff to require it to obtain new counsel at this late stage of the case.
Defendant has failed to satisfy its burden under the substantial relationship test of Rule 1.9 of the Pennsylvania Rules of Professional Conduct. In addition, it has waived the right to object to Plaintiff's counsel by virtue of the delay in filing this motion to disqualify. For these reasons, the Court will deny Defendant's motion.
An order follows.
Daniel H. Huyett, 3rd, Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 808 F. Supp. 1200.
Upon consideration of Defendant Graphix Hot Line Inc.'s motion to disqualify Thomas J. Duffy, Esquire from further representation of Plaintiff in this action, Plaintiff's reply, and for the reasons given in the foregoing memorandum of law, Defendant's motion is DENIED.
IT IS SO ORDERED.
Daniel H. Huyett, 3rd, Judge
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