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SHADE v. GREAT LAKES DREDGE & DOCK CO.

November 16, 1999

JOHN D. SHADE, PLAINTIFF,
v.
GREAT LAKES DREDGE & DOCK COMPANY, DEFENDANT.



The opinion of the court was delivered by: Katz, Senior District Judge.

MEMORANDUM & ORDER

Before the court is defendant's motion to disqualify attorney Marvin I. Barish from continuing to represent plaintiff John Shade. Because disqualification is an inappropriate sanction under these circumstances, the court will deny the motion.

I. Background

John Shade brought this action under the Jones Act for injuries he suffered during his employment with defendant. After a jury trial in October 1997, plaintiff was awarded $870,000. The Third Circuit reversed this judgment for evidentiary error, and the case is scheduled for retrial beginning on December 13, 1999.

Defendant's present motion argues that Barish must be disqualified for violations of two professional rules.*fn1 Defendant first argues that the acknowledged provision of an apartment and associated costs for Shade and his family by the Barish firm since November 1997 qualifies as a conflict of interest that warrants disqualification. Defendant also claims that Barish knowingly offered false testimony to the court during the 1997 trial and that this requires his disqualification.*fn2

II. Standards

A district court has power to disqualify an attorney deriving "from its inherent authority to supervise the professional conduct of attorneys appearing before it." United States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980); see also In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 160 (3d Cir. 1984) (same). As many decisions have stressed, "courts have vital interests in protecting the integrity of their judgments, maintaining public confidence in the integrity of the bar, eliminating conflicts of interest, and protecting confidential communications between attorneys and their clients." Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200, 1203 (E.D.Pa. 1992); see also United States v. Moscony, 927 F.2d 742, 749 (3d Cir. 1991) (same).

In this case, the general power of the court to sanction an attorney is not at issue. The only question is whether the extreme sanction of disqualification is appropriate assuming that an ethical rule was violated. While disqualification is obviously a permissible and even necessary step in some cases, disqualification should not be imposed lightly.

  [T]he court 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 restriction.

Miller, 624 F.2d at 1201. That is, even if the court finds that an attorney violated an ethical rule, "disqualification is never automatic." Id.; see also Cohen v. Oasin, 844 F. Supp. 1065, 1067 (E.D.Pa. 1994) (stating that district court has latitude to impose sanctions in a manner fair to all parties to the litigation). Although this right is obviously not absolute, a party's choice of counsel is a significant consideration in determining the propriety of disqualification. See Commonwealth Ins., 808 F. Supp. at 1203. Weighing against this right is the need to protect opposing parties' ability to try their case in a fair manner. See, e.g., University Patents, Inc. v. Kligman, 737 F. Supp. 325, 329 (E.D.Pa. 1990).

Doubts should be resolved in favor of disqualification, see Brennan v. Independence Blue Cross, 949 F. Supp. 305, 307 (E.D.Pa. 1996), but it is the burden of the party arguing for disqualification to demonstrate clearly that "continuing representation would be impermissible." Id. (quoting Cohen, 844 F. Supp. at 1067). As a general rule, motions to disqualify opposing counsel are disfavored. See Cohen, 844 F. Supp. at 1067; Kligman, 737 F. Supp. at 329. While the court does not suggest that the present motion was filed for strategic purposes, it must be acknowledged that "the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons." Rules of Professional Conduct, Preamble Scope.

II. The Alleged Violations

A. Living Expenses

The basis for defendant's first allegation of impropriety is the Barish firm's provision of an apartment and related expenses to the Shade family. See Def. Ex. A (deposition testimony of Shade stating that Barish paid rent and other expenses since 1997); Def. Ex. B (rental papers listing Barish as applicant for occupancy by Shade and his family; billing records of apartment indicating Barish paid rent). Barish does not dispute these facts, although he explains that his firm had acquired the apartment to house out-of-town clients and experts. See Pl.Mem. of Law at 1. According to Barish, the Shades' occupancy began after Shade lost both his job and his home following the first trial and was extended indefinitely after Shade's wife was injured and he had an "emotional breakdown." Id. The family was told from the outset that they had no obligation to repay rent or other expenses. See ...


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