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COHEN v. OASIN

March 4, 1994

ROBERT N. COHEN, Plaintiff,
v.
MANUEL B. OASIN, Defendant.



The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 This matter involves plaintiff's motion to disqualify the Office of the United States Attorney (OUSA) as prospective legal counsel of defendant. Plaintiff seeks to have OUSA disqualified from representing defendant due to an alleged non-waivable conflict of interest. Plaintiff contends that the conflict stems from the representation by OUSA of General Services Administration (GSA), which is a defendant in another action pending before this Court (Cohen v. Austin, No. 92-CV-5623) and which was instituted by plaintiff.

 In Austin, plaintiff filed suit against GSA alleging claims of religious discrimination and reprisal, as well as appealing the administrative agency's decision to terminate plaintiff from its employ and to deny him a within-grade increase. Plaintiff has now instituted the present action against defendant alleging that he engaged in fraudulent conduct and destruction or concealment of government records while acting as regional counsel for GSA during the previous administrative trial in the Austin case. Plaintiff asserts that because defendant was engaged in fraudulent behavior, he was acting outside the scope of his discretionary authority, and therefore, has not been sued in his official capacity.

 In his motion, plaintiff contends that disqualification is necessary due to the inherent conflict of interest in having OUSA represent both defendants in these cases. Essentially, plaintiff argues that Austin, as administrator of GSA, is responsible for upholding the laws and regulations of GSA. He asserts that one of the regulations requires Austin to take disciplinary action against persons who violate GSA's standards of conduct. Two of such violations are engaging in immoral conduct and removing, destroying, concealing or falsifying government records. Plaintiff asserts that if OUSA represents defendant in this case, it will face a conflict of interest because it will acquire confidential information from defendant which will show that he acted contrary to GSA's standards. As a result, OUSA will be unable to faithfully carry out its representation of GSA in Austin.

 In considering a motion to disqualify, the Third Circuit has stated that the court should determine if disquali-fication is the appropriate means to enforce the rule of professional conduct, the ends that the rule was designed to serve and any other countervailing policies such as permitting a party to retain counsel of his choice. Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200, 1203 (E.D. Pa. 1992) (quoting United States v. Miller, 624 F.2d 1198, 1201 (3rd Cir. 1980)). The party seeking to disqualify opposing counsel bears the burden of clearly showing that continued representation would be impermissible. Commercial Credit Bus. Loans, Inc. v. Martin, 590 F. Supp. 328, 335-36 (E.D. Pa. 1984). Vague and unsupported allegations are not sufficient to meet this standard. Id. Generally, motions to disqualify opposing counsel are not favored. Commonwealth Ins., 808 F. Supp. at 1203 (citing Hamilton v. Merrill Lynch, 645 F. Supp. 60, 61 (E.D. Pa. 1986)). Rule 1.7 of the Pennsylvania Rules of Professional Conduct states:

 
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
 
1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
 
2) each client consents after consultation.
 
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsi-bilities to another client or to a third person, or by the lawyer's own interests, unless:
 
1) the lawyer reasonably believes the representation will not be adversely affected; and
 
2) The client consents after full dis-closure and consultation. When represen-tation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
 
Pa. Rules of Professional Conduct Rule 1.7 (1993).

 The comments state that loyalty to a client is the purpose ...


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