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DWORKIN v. GMC

November 27, 1995

ABE DWORKIN and ADA SYLVIA DWORKIN V. GENERAL MOTORS CORPORATION


The opinion of the court was delivered by: CAHN

 Cahn, C.J.

 November 27th, 1995

 Plaintiffs Abe Dworkin and Ada Sylvia Dworkin ("Plaintiffs") brought this action against General Motors Corporation ("GM") pursuant to 73 P.S. § 1951-1963, commonly known as the Pennsylvania Lemon Law, among other applicable laws. Currently before the court is GM's motion to disqualify Kimmel & Silverman, P.C. ("K&S") and Jay London, Esquire, ("London") (hereinafter collectively referred to as "Respondents") from representing Plaintiffs in this matter.

 GM is a defendant in approximately one hundred lemon law cases pending in this district. In order to avoid inconsistent decisions regarding the issue of disqualification, the parties agreed to designate this case as a test case in which the disqualification issue would be litigated and resolved. Upon consideration of GM's Motion to Disqualify, Respondents' response thereto, all other related briefs and memoranda of law, and after an evidentiary hearing that took place over four separate days, this court finds that Respondents have complied with the Rules of Professional Conduct and should not be disqualified.

 I. Background

 The Pennsylvania Lemon Law, the Magnuson-Moss Act, 15 U.S.C. § 2301-2312, and several other statutory schemes give purchasers of defective automobiles the right to sue automobile manufacturers under certain circumstances. These laws will collectively be referred to as "lemon laws" by this court. GM retained the law firms of Lavin, Coleman, Finarelli & Gray ("Lavin") and McBreen, McBreen & Kopco ("McBreen") to defend GM in lemon law suits brought against GM in the greater Philadelphia area. Lavin has represented GM in this capacity since at least 1988, and McBreen has represented GM in lemon law suits since August, 1994. Motion of General Motors Corporation to Disqualify Kimmel & Silverman, P.C. and Jay London, Esquire, from Representing Clients in Suits Against General Motors Corporation in Automobile Warranty Litigation [hereinafter GM Motion to Disqualify], Ex. B, PP 6, 14 (Affidavit of Laurie N. Adams in Steel v. General Motors Corporation, 1995 U.S. Dist. LEXIS 19608, No. 95-CV-02506 (D.N.J)).

 London was employed as an associate attorney by Lavin from approximately August, 1988 to February, 1993. From approximately March, 1993 to April, 1994 London was employed as an associate attorney by Harvey, Pennington, Herting & Renneisen, Ltd. ("Harvey, Pennington"). From April, 1994 to May 26, 1995, London was employed as an associate attorney by McBreen. During his employment at Lavin and McBreen, London worked on the defense of lemon law cases brought against GM. While at Harvey, Pennington, however, London was not involved in lemon law cases or any other cases involving GM.

 While at Lavin, London represented GM in over twenty lemon law matters and billed nearly 1000 hours to GM. GM Motion to Disqualify, Ex. A, P 6 (Affidavit of Francis P. Burns, III in Steel case). GM contends that while at Lavin, London was privy to written materials, distributed or approved by GM, that described GM's philosophy and strategy for the defense of lemon law matters. GM further contends that London had frequent contact with GM personnel, specifically GM Legal Assistant Laurie Adams ("Adams"), concerning the defense of GM in lemon law matters.

 London joined McBreen in April, 1994 as an associate. In the spring of 1994, London and McBreen partner Steven B. Kantrowitz, Esquire ("Kantrowitz") spoke with Adams to market McBreen's services to GM for the defense of lemon law claims. On August 3, 1994, London and Kantrowitz met with Adams in Detroit to formalize this relationship. GM Motion to Disqualify, Ex. B, P 13 (Adams Aff.). GM avers that a focus of this meeting was to discuss GM's philosophy and strategies for handling lemon law claims filed by K&S. During his employment at McBreen, London defended GM in twenty-nine lemon law claims; in twenty-eight of those matters, the plaintiffs were represented by K&S. Id. P 14. GM asserts that London was the only associate at McBreen assigned to represent GM, that London was GM's primary contact person at McBreen, and that Adams had frequent contact with London, which included discussions of confidential topics.

 London resigned from McBreen on Friday, May 26, 1995. On Monday, May 29, 1995 (Memorial Day), London called Robert Silverman ("Silverman") of K&S at Silverman's home. London contends that he had Kantrowitz's permission to call opposing counsel to notify them that he had resigned from McBreen and to request that opposing counsel not take any adverse action during the transition period at McBreen created by London's resignation. During the course of their telephone conversation, Silverman stated that K&S might be interested in hiring London to work on non-GM matters.

 On May 31, 1995, London met with Silverman and Craig T. Kimmel ("Kimmel"). London, Silverman, and Kimmel agreed that if an offer were made to London, it would only be after an ethics screen had been implemented, and that London would work exclusively on non-GM matters. After Silverman left the meeting, Kimmel and London created an ethics screen based on a draft London had developed prior to the meeting. On the afternoon of May 31, 1995, Kimmel and Silverman held a meeting of all K&S employees at which the ethics screen was implemented and explained. After this meeting, an offer was made to London via telephone. On June 2, London telephoned Adams, informing her that he had resigned from McBreen and had been offered a position at K&S. London confirmed this telephone conversation with Adams in a letter sent by certified mail the same day. In this letter, London also stated that he wanted to discuss a waiver by GM of any potential conflicts of interest and that a copy of the K&S ethics screen would be available to GM upon request. London accepted the position at K&S on June 2, 1995 and began working at K&S on June 7, 1995. By June 12, 1995 letter, Adams advised London that GM declined to waive any potential conflict of interest and requested a copy of the K&S ethics screen. On June 19, London sent a copy of the K&S ethics screen policy to Adams via facsimile. On June 20, Adams sent a letter to London advising him that GM had received the ethics screen policy, that GM still declined to waive any potential conflict of interest, and that GM objected to any representation by London or K&S in cases against GM. On June 23, Adams received a letter via facsimile from London in which he proposed a meeting between Adams and K&S to discuss GM's concerns. Adams declined this invitation via a June 26 letter to London, stating that whatever additional information that London wished to supply could be conveyed by writing.

 K&S, a small firm *fn1" with offices in Blue Bell, Pennsylvania and Haddonfield, New Jersey, specializes in lemon law cases against automobile manufacturers, including GM. K&S has brought hundreds of lemon law claims against GM and asserts that there is little, if any, GM strategy or philosophy that K&S has not learned through its extensive experience litigating and settling these claims.

 The 10,000-square-foot office space of K&S at Blue Bell contains all client files and includes fourteen separate offices and two conference rooms. Each attorney's office locks and unlocks with a separate key. The particular attorney assigned to an office has that office's only key, with the exception of Silverman, who possesses a master key. Silverman's office consists of a main office and a sub-office, in which all GM files are stored. Whenever Silverman is away from his office, the doors are locked. Each attorney has a personal computer with a personal access code; there is no system network. Silverman reviews all incoming mail and facsimiles for distribution.

 II. Discussion

 In this court, the Rules of Professional Conduct (the "Rules") adopted by the Supreme Court of Pennsylvania govern issues of professional conduct, including the present motion to disqualify. U.S.D.C., E.D. Pa., Local R. Civ. P. 83.6, R. IV(B). *fn2" GM alleges that London and K&S should be disqualified pursuant to Rules 1.6, 1.9, and 1.10. This court will analyze GM's claims under these three Rules in turn.

 A. 1.6

 The applicable portions of Rule 1.6 are as follows:

 
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
 
. . . .
 
(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:
 
. . .
 
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to ...

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