The opinion of the court was delivered by: KELLY
Before this Court is Defendants' Motion to Disqualify Daniel L. Thistle, Esquire ("Thistle"), as counsel for Plaintiffs in the above-captioned matter. Defendants, Independence Blue Cross and Pennsylvania Blue Shield, object to Thistle's representation of the Plaintiffs ("the Brennans") based upon allegations that Thistle's previous representation of Defendants in a matter has resulted in an impermissible conflict of interest. Defendants also allege that Mr. Thistle should be disqualified because he will most likely be called as a necessary witness in this case. For the following reasons, Defendants' motion will be granted.
On May 17, 1994, Thistle, while employed by the law firm of Beasley, Casey, Colleran, Erbstein, Thistle and Kline, wrote to Defendants and advised them of his representation of the Brennans in a medical malpractice action and inquired whether Defendants intended to assert a subrogation claim in that action.
(Defendants' Motion, Ex. B). Defendants' subrogation right arose out of the Defendants' payment of medical benefits on behalf of Plaintiff Donald Brennan, a quadriplegic, who allegedly sustained his quadriplegia from the negligence of Thomas Jefferson University Hospital and physicians.
By letter, dated July 11, 1994, Defendants advised Thistle that they did intend to assert a subrogation right in that matter and inquired whether Thistle desired to represent Defendants in accordance with the terms proposed in said letter. (Defendants' Motion, Ex. D). On August 22, 1994, Thistle agreed to represent Defendants' subrogation right. Subsequently, Thistle obtained a fee for his representation of Defendants after the underlying medical malpractice case settled. (Defendants' Motion, Exs. E, F, & G). On June 28, 1995, Thistle sent Defendants a check for $ 46,151.50 as "full and final settlement" of their subrogation lien. (Defendants' Ex. J).
On November 24, 1995, the Brennans filed the Complaint in this matter, demanding payment for twelve hours of daily skilled nursing care that is alleged to be medically necessary because Donald Brennan is a quadriplegic. Defendants now object to Thistle's representation of Plaintiffs because his former representation of Defendants' subrogation rights has resulted in an impermissible conflict of interest in that the instant action involves a dispute between the parties over whether Defendants have any present contractual right to subrogation for payment of medical benefits on behalf of Donald Brennan that are related to his quadriplegia.
The Third Circuit has stated that a district court, in exercising its discretionary power,
should disqualify an attorney only when it determines, on the facts of the particular case, that disqualification is an appropriate means of enforcing the applicable disciplinary rule. It should consider the ends that the disciplinary rule is designed to serve and any countervailing policies, such as permitting a litigant to retain the counsel of his choice and enabling attorneys to practice without excessive restrictions.
United States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980). "The party seeking to disqualify opposing counsel bears the burden of clearly showing that continued representation would be impermissible." Cohen v. Oasin, 844 F. Supp. 1065, 1067 (E.D. Pa. 1994) (citing Commercial Credit Business Loans, Inc. v. Martin, 590 F. Supp. 328, 335-36 (E.D. Pa. 1984)). However, any doubts as to the existence of a violation of the rules should be resolved ...