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