At page 1385 Disqualification of counsel for conflicts of interest88 citing cases“a lawyer should avoid even the appearance of professional impropriety.”
- ABN Corp. v. Groupe Pelm Int'l Corp., No. 3:23-cv-00004 (N.D. Cal. Feb. 27, 2024).The Court “may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety.” Id. at 1324– 25 (citing Richardson, 469 F.2d at 1385-86).
- Besang, Inc. v. Intel Corp., No. 3:23-cv-00113 (D. Or. Oct. 4, 2023).The court “may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety.” Id. at 1324-25 (quoting Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385-86 (3d Cir. 1972)).
- Besang, Inc. v. Intel Corp., No. 3:23-cv-00113 (D. Or. Aug. 25, 2023).The court “may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety.” Id. at 1324-25 (quoting Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385-86 (3d Cir. 1972)).
- Williams v. Lockheed Martin, 990 F.3d 852 (5th Cir. 2021).publishedCorp. v. Levin, 579 F.2d 271 , 279 n.2 (3d Cir. 1978))); In re Am. Airlines, Inc., 972 F.2d 605, 610 (5th Cir. 1992) (“Federal courts may adopt state or ABA rules as their ethical standards, but whether and how these rules are to be applie…
- Crown Bay Marina Lp v. Reef Transp., No. 3:18-cv-00073 (D.V.I. Oct. 21, 2020).Corp., 469 F.2d 1382, 1385-86 (3d Cir. 1972)).
- Quantico Tactical Inc. v. United States, No. 20-120 (Fed. Cl. May 26, 2020).publishedCorp., 469 F.2d 1382, 1385 (3d Cir. 1972); see also Kenosha Auto Transp.
- Com. v. Richter, H., No. 276 WDA 2018 (Pa. Super. Ct. Nov. 26, 2018).unpublishedRichardson v. Hamilton Int'l Corp., 469 F.2d 1382, 1385 (3d Cir. 1972).
- Bradley Englebrick v. Worthington Indus., 620 F. App'x 564 (9th Cir. 2015).unpublishedIn Gas-A-Tron of Arizona v. Union Oil Co. of California, we endorsed the Third Circuit's statement in Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385 (3d Cir.1972), that: Whenever an allegation is made that an attorney has…
- Fratarcangeli v. Fratarcangeli, 23 Pa. D. & C.5th 449 (2011).publishedRichardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385 (1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973); Estate of Pew, 655 A.2d 521, 545 (Pa.Super. 1994).
- Talecris Biotherapeutics, Inc. v. Baxter Int'l Inc., 491 F. Supp. 2d 510 (D. Del. 2007).publishedCo. v. Graphix Hot Line, Inc., 808 F.Supp. 1200, 1204 (E.D.Pa.1992) (citing Richardson v. Hamilton Int'l Corp., 469 F.2d 1382, 1385 (3d Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973).
Show 76 more citing cases
- People Ex Rel. Nr, 139 P.3d 671 (Colo. 2006).publishedRichardson v. Hamilton Int'l Corp., 469 F.2d 1382, 1385-86 (3d Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973).
- People ex rel. N.R., 139 P.3d 671 (Colo. 2006).publishedRichardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385-86 (3d Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973).
- Conley v. Chaffinch, 431 F. Supp. 2d 494 (D. Del. 2006).publishedWhether Confidences Might Have Been Disclosed in the Course of the Prior Representation Which Could be Relevant to the Present Action With respect to this final question, the court should not look to what information the attorney or law fi…
- Integrated Health Servs. Of, Cliff Manor, Inc. v. THCI, Co., 327 B.R. 200 (D. Del. 2005).publishedWhether Confidences Might Have Been Disclosed in the Course of the Prior Representation Which Could he Relevant to the Present Action With respect to this final question, the court should not look to what information the attorney or law fi…
- Lamb v. Pralex Corp., 333 F. Supp. 2d 361 (D.V.I. 2004).publishedRichardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385-86 (3d Cir. 1972), cert. denied 411 U.S. 986 , 36 L.
- Balthazar v. Atl. City Med. Ctr., 279 F. Supp. 2d 574 (D.N.J. 2003).publishedId. (quoting Richardson v. Hamilton Intern Corp., 469 F.2d 1382, 1385 (3d Cir.1972), and citing Fed.R.Civ.P. 11(c); 28 U.S.C. § 1927 ).
- Roy Gray v. Nancy Gray, No. E2001-02470-COA-R3-CV (Tenn. Ct. App. May 14, 2002).publishedRichardson v. Hamilton International Corp. , 469 F.2d 1382, 1385 (3 Cir. 1972), certiorari denied, 411 U.S. 986 , S.Ct. 2271, 36 L.Ed.2d 964 (1973); T.C.
- Thomason v. Norman E. Lehrer, P.C., 183 F.R.D. 161 (D.N.J. 1998).published To hail an attorney-adversary into state court to answer for conduct arising out of a federal court proceeding subverts a District Court’s ability to execute its duty “to supervise the conduct of the members of its bar.” Cf Richardson v. H…
- In Re Dinova, 212 B.R. 437 (B.A.P. 2d Cir. 1997).publishedBankr.P. 9011(a); Singleton v. Wulff, 428 U.S. 106, 121 , 96 S.Ct. 2868, 2877-78 , 49 L.Ed.2d 826 (1976); In re Griffiths, 413 U.S. 717, 727 , 93 S.Ct. 2851, 2857-58 , 37 L.Ed.2d 910 (1973); Ciba-Geigy Corporation v. Sidamon-Eristoff, 3 F.…
- Essex Chem. Corp. v. Hartford Accident & Indem. Co., 975 F. Supp. 650 (D.N.J. 1997).publishedThe test for disqualification under RPC 1.9(a)(1) is three-pronged: (I) a prior attorney-client relationship must have existed; (2) the interest of the current client must be materially adverse to those of the former client; and (3) the cu…
- McKenzie Constr. v. St Croix Storage Corp., 961 F. Supp. 857 (D.V.I. 1997).publishedRichardson v. Hamilton International Corp., 469 F.2d 1382, 1385-86 (3d Cir. 1972), cert denied 411 U.S. 986 , 36 L.
- 96 Cal. Daily Op. Serv. 4324, 96 Daily Journal D.A.R. 7041 Donald C. Erickson v. Newmar Corp., Does I Through X & Doe Corporations I Through X, Inclusive, 87 F.3d 298 (9th Cir. 1996).publishedThis means that a court may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety. 26 Gas-A-Tron, 534 F.2d at 1324 -25 (quoting Richardson v. Hamilton Int'l Corp., 469 F.2d 1382,…
- Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996).publishedGas-A-Tron, 534 F.2d at 1324 -25 (quoting Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385-86 (3d Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973)).
- Skiba v. Union Station Dev. Corp. (In Re Dasom, Inc.), 180 B.R. 430 (Bankr. W.D. Pa. 1995).publishedThe official comment to Rule 1.9 includes the statement that “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides.” The Court of Appea…
- Est. of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994).publishedRichardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385 (1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973).
- In Re ML-Lee Acquisition Fund II, L.P. & ML-Lee Acquisition Fund (Ret. Accounts) II, L.P. Sec. Litig., 848 F. Supp. 527 (D. Del. 1994).publishedRichardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385-86 (3d Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973).
- Makita Corp. v. United States, 819 F. Supp. 1099 (Ct. Intl. Trade 1993).publishedSee also 28 U.S.C. § 1585 (the Court of International Trade possesses “all the powers in law and equity of, or as conferred by statute upon, a district court of the United States”); Trone v. Smith, 621 F.2d 994, 999 (9th Cir.1980); Richard…
- Webb v. EI Du Pont De Nemours & Co., Inc., 811 F. Supp. 158 (D. Del. 1992).publishedPictures, 113 F.Supp. 265 (S.D.N.Y.1953), a case whose reasoning the Third Circuit expressly adopted in Richardson v. Hamilton International Corporation, 469 F.2d 1382, 1385 (3rd Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L…
- Kaselaan & D'Angelo Assocs., Inc. v. D'Angelo, 144 F.R.D. 235 (D.N.J. 1992).published(holding that plaintiff, an attorney who formerly represented the defendant, was disqualified from maintaining his suit since he might have, in the course of prior litigation, acquired information to be used in the pendi…)
- Commonwealth Ins. v. Graphix Hot Line, Inc., 808 F. Supp. 1200 (E.D. Pa. 1992).publishedRichardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385 (3d Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973).
- Kabi Pharmacia AB v. Alcon Surgical, Inc., 803 F. Supp. 957 (D. Del. 1992).publishedIt is the duty of the district court to examine the charge, since it is that court which is authorized to supervise the conduct of members of the bar.” Nemours Foundation v. Gilbane, Aetna, Federal Insurance Co., 632 F.Supp. 418, 421-22 (D…
- Moss v. TACC Int'l Corp., 776 F. Supp. 622 (D. Mass. 1991).publishedHeileman Brewing Co., Inc., 610 F.Supp. 1319, 1322 (D.Del.1985) (citing Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385 (3d Cir.1972), cert, denied, *624 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973)).
- Brooks v. Farm Fresh, Inc., 759 F. Supp. 1185 (E.D. Va. 1991).publishedSchloetter, 546 F.2d at 709 ; Gas-A-Tron of Ariz. v. Union Oil Co. of Cal, 534 F.2d 1322, 1324-25 (9th Cir.), cert. denied, 429 U.S. 861 , 97 S.Ct. 164 , 50 L.Ed.2d 139 (1976); Richardson v. Hamilton International Corp., 469 F.2d 1382, 138…
- Neuharth v. Quinn, 23 Va. Cir. 252 (Va. Cir. Ct. 1991).publishedNCK Organization LTD v. Bergman, 542 F.2d 128, 134 (2d Cir. 1976) (court may assume that attorney attains confidential data on former client if representation occurs in substantially related area); Richardson v. Hamilton International Corp…
- Sec. Inv. Prot. Corp. v. Blinder, Robinson & Co. (In Re Blinder, Robinson & Co.), 123 B.R. 900 (Bankr. D. Colo. 1991).publishedThe canons of ethics are guidelines for professional conduct, and public confidence in the judicial system demands that they be strictly applied.”); Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385 (3rd Cir.1972), cert. denied, 411…
- Brice v. Hess Oil Virgin Islands Corp., 769 F. Supp. 193 (D.V.I. 1990).publishedPrior to the adoption of the ABA Model Rules of Professional Conduct, the Third Circuit Court of Appeals interpreted Canons 4 and 9 of the Model Code, to require the “disqualification of counsel where it appears that the subject matter of…
- In Re Bh & P, Inc., 103 B.R. 556 (Bankr. D.N.J. 1989).publishedIn re Imperial "400" Nat'l, Inc., 481 F.2d 41 (3d Cir.), reh’g denied, 486 F.2d 297 (3d Cir.), cert. denied, 414 U.S. 880 , 94 S.Ct. 71 , 38 L.Ed.2d 125 (1973); Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385-1386 (3d Cir.1…
- In Re Glenn Elec. Sales Corp., 89 B.R. 410 (Bankr. D.N.J. 1988).publishedRichardson v. Hamilton International Corporation, 469 F.2d 1382, 1385-86 (3d Cir.1972).
- In Re High. Truck Drivers & Helpers Local Union 107, 86 B.R. 404 (Bankr. E.D. Pa. 1988).published Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385 (3rd Cir.1972) cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973); INA Underwriters Insurance Co. v. Nalibotsky, 594 F.Supp.1199 (E.D.Pa.1984). 2.
- Zimmerman v. Duggan, 81 B.R. 296 (E.D. Pa. 1987).publishedIn Re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 161 (3rd Cir.1984) cert. den. 472 U.S. 1008 , 105 S.Ct. 2702 , 86 L.Ed.2d 718 (1985) (citing Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385-86 (3rd Cir.1972), cert…
- In Re Trevino, 78 B.R. 29 (Bankr. M.D. Pa. 1987).published The threshold requirement for actions such as presented in this mov-ant’s motion is that the subject matter of the pending suit in which the attorney represents an interest adverse to a prior employer is such that during the course of the…
- Satellite Fin. Plan. Corp. v. First Nat'l Bank, 652 F. Supp. 1281 (D. Del. 1987).publishedOn August 26, 1986, the defendants filed the motion to add new parties which led to this motion to disqualify. 3 DISCUSSION The appropriate standard in ruling on a motion to disqualify counsel based upon prior representation of a present a…
- Nemours Found. v. Gilbane, Aetna, Fed. Ins., 632 F. Supp. 418 (D. Del. 1986).published Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385 (3d Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973).
- Cleary v. Dist. Court Ex Rel. Eighteenth Jud. Dist., 704 P.2d 866 (Colo. 1985).publishedSee, e.g., Trone v. Smith, 621 F.2d 994, 999 (9th Cir.1980); Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605 (8th Cir.1977), cert. denied, 436 U.S. 905 , 98 S.Ct. 2235 , 56 L.Ed.2d 403 (1978); Kesselhaut v. United States, 214 Ct.Cl. 1…
- United States v. Calabria, 614 F. Supp. 187 (E.D. Pa. 1985).publishedConflict of interest concerns arise also when an attorney must prepare a case against, cross-examine, or impeach a former client on subject matter “so closely connected with the subject matter of the earlier representation that confidences…
- Jack Eckerd Corp. v. Dart Grp. Corp., 621 F. Supp. 725 (D. Del. 1985).publishedThe standard for determining whether the current matter is substantially related to the former representation is “whether it can reasonably be said that in the course of the former representation the attorney might have acquired informatio…
- Kalmanovitz v. G. Heileman Brewing Co., Inc., 610 F. Supp. 1319 (D. Del. 1985).publishedRichardson v. Hamilton International Corp., 469 F.2d 1382, 1385 (3d Cir.1972), cert. denied, 411 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973).
- Dr. Ing. Max Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706 (7th Cir. 1976).published
- In Re Fine Paper Antitrust Litig., Kimberly-Clark Corp., 617 F.2d 22 (3d Cir. 1980).published
- 10 Fair empl.prac.cas. 469, 9 Empl. Prac. Dec. P 10,042 Joan Hull, on Behalf of Herself & Others Similarly Situated v. Celanese Corp., 513 F.2d 568 (2d Cir. 1975).published
- Leon F. Akerly v. Red Barn Sys., Inc. Appeal of Harrisburg Barns, Inc., 551 F.2d 539 (3d Cir. 1977).published
- Brown & Williamson Tobacco Corp. v. Daniel Int'l Corp., & Third-Party v. Lockwood-Greene Engineers, Inc., Third-Party & Fourth-Party Oman Constr. Co., Inc., Third-Party & Fourth-Party v. Pascoe Steel Corp., Fourth-Party & Fifth-Party Oak Constructors, Inc., Fourth-Party & Fifth-Party v. Lockwood-Greene Engineers, Inc., Fifth-Party, 563 F.2d 671 (3d Cir. 1977).published
- First Wisconsin Mortg. Trust v. First Wisconsin Corp., 571 F.2d 390 (1st Cir. 1978).published
- Kenneth Coffelt v. Honorable Terry L. Shell, 577 F.2d 30 (8th Cir. 1978).published
- Trone v. Smith, 621 F.2d 994 (9th Cir. 1980).published
- United States v. Miller, William G., 624 F.2d 1198 (3d Cir. 1980).published
- Hovsons, Inc. v. Sec'y of Interior of United States, 711 F.2d 1208 (3d Cir. 1983).published
- James J. Kevlik v. David B. Goldstein, Town of Derry, 724 F.2d 844 (1st Cir. 1984).published
- In Re Corn Derivatives Antitrust Litig. (Mdl 414). Appeal of John E. Koerner & Co., Inc., Imperial Prods. Corp., & Pan-O-Gold, Inc, 748 F.2d 157 (3d Cir. 1984).published
- United States v. RMI Co., 467 F. Supp. 915 (W.D. Pa. 1979).published
- Ina Underwriters Ins. v. Rubin, 635 F. Supp. 1 (E.D. Pa. 1983).published
- Kaminski Bros. v. Detroit Diesel Allison, a Div. of Gen. Motors Corp., 638 F. Supp. 414 (M.D. Pa. 1985).published
- Messing v. FDI, Inc., 439 F. Supp. 776 (D.N.J. 1977).published
- Bhd. Ry. Carmen of the United States & Canada v. Delpro Co., 549 F. Supp. 780 (D. Del. 1982).published
- Handelman v. Weiss, 368 F. Supp. 258 (S.D.N.Y. 1973).published
- Nat'l Texture Corp. v. Hymes, 282 N.W.2d 890 (Minn. 1979).published
- In Re Philadelphia Athletic Club, Inc., 20 B.R. 328 (E.D. Pa. 1982).published
- INA Underwriters Ins. v. Nalibotsky, 594 F. Supp. 1199 (E.D. Pa. 1984).published
- In Re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989).published
- In Re Asbestos Cases, 514 F. Supp. 914 (E.D. Va. 1981).published
- Cook v. Cook, 559 F. Supp. 213 (E.D. Pa. 1983).published
- United States v. FMC Corp., 495 F. Supp. 172 (E.D. Pa. 1980).published
- State v. Jones, 429 A.2d 936 (Conn. 1980).published
- Davis v. Stamler, 494 F. Supp. 339 (D.N.J. 1980).published
- Black v. State of Mo., 492 F. Supp. 848 (W.D. Mo. 1980).published
- Teleprompter of Erie, Inc. v. City of Erie, 573 F. Supp. 963 (W.D. Pa. 1983).published
- Westinghouse Elec. Corp. v. Rio Algom Ltd., 448 F. Supp. 1284 (N.D. Ill. 1978).published
- Baglini v. Pullman, Inc., 412 F. Supp. 1060 (E.D. Pa. 1976).published
- Price v. Admiral Ins., 481 F. Supp. 374 (E.D. Pa. 1979).published
- X Corp. v. Doe, 805 F. Supp. 1298 (E.D. Va. 1992).published
- Disqualification of Prosecutor Because of Former Representation (OLC 1985).published
- Hull v. Celanese Corp., 513 F.2d 568 (2d Cir. 1975).published
- Brown & Williamson Tobacco Corp. v. Daniel Int'l Corp., 563 F.2d 671 (5th Cir. 1977).published
- First Wisconsin Mortg. Trust v. First Wisconsin Corp., 571 F.2d 390 (7th Cir. 1978).published
- Mitchell a. Kramer & David C. Harrison v. Sci. Control Corp. Et Al. Appeal of Arthur Andersen & Co., 534 F.2d 1085 (3d Cir. 1976).published
- Daniel Kreda, on Behalf of Himself & All Others Similarly Situated, & Derivatively on Behalf of Fisco, Inc. v. William Rush Appeal of William A. F. Smith (Two Cases). Alfred Miller, on Behalf of Himself & All Others Similarly Situated, & Derivatively on Behalf of Fisco, Inc. v. Fisco, Inc., 550 F.2d 888 (3d Cir. 1977).published
At page 1384 Protecting client confidences across multiple legal actions8 citing cases
- United States v. Calabria, 614 F. Supp. 187 (E.D. Pa. 1985).publishedConflict of interest concerns arise also when an attorney must prepare a case against, cross-examine, or impeach a former client on subject matter “so closely connected with the subject matter of the earlier representation that confidences…
- Dr. Ing. Max Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706 (7th Cir. 1976).published
- In Re Fine Paper Antitrust Litig., Kimberly-Clark Corp., 617 F.2d 22 (3d Cir. 1980).published
- McMahon v. Seitzinger Bros. Leasing, Inc., 506 F. Supp. 618 (E.D. Pa. 1981).published
- Moritz v. Med. Prot. Co., Etc., 428 F. Supp. 865 (W.D. Wis. 1977).published
- Matter of Royal Bedding Co., 42 B.R. 257 (Bankr. W.D. Pa. 1984).published
- GAF Corp. v. Heyman, 559 F. Supp. 748 (S.D.N.Y. 1983).published
- Ries v. MTD Prods., Inc., 14 Pa. D. & C.3d 566 (1980).published
At page 1386 Applying abuse of discretion standard for disqualification motions6 citing cases
- Telfair v. Off. of the U.S. Attorney, 443 F. App'x 674 (3d Cir. 2011).unpublishedRichardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1386 (3d Cir.1972); D.N.J.
- In Re: Robert B. Surrick, 338 F.3d 224 (3d Cir. 2003).published Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1386 (3d Cir. 1972).
- James J. Kevlik v. David B. Goldstein, Town of Derry, 724 F.2d 844 (1st Cir. 1984).published
- Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp. & Chrysler Realty Corp., 518 F.2d 751 (2d Cir. 1975).published
- Leon Kroungold & Thaddeus S. Bochey v. Stanton L. Triester, 521 F.2d 763 (3d Cir. 1975).published
v.
Hamilton International Corporation
Fed. Sec. L. Rep. P 93,675
James M. RICHARDSON, Appellant,
v.
HAMILTON INTERNATIONAL CORPORATION et al.
No. 72-1016.
United States Court of Appeals,
Third Circuit.
Argued Sept. 25, 1972.
Decided Nov. 17, 1972.
Paul R. Rosen, Pechner, Sacks, Dorfman, Rosen & Richardson, Philadelphia, Pa., for appellant.
Edward W. Mullinix, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellees.
Before STALEY, VAN DUSEN and MAX ROSENN, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal from an opinion and order of November 3, 1971,[1] disqualifying the plaintiff, Mr. James M. Richardson, from maintaining a class action and shareholders' derivative suit against Alexander Hamilton Life Insurance Company of America (hereafter Hamilton Life), its directors, certain of its officers,[2] and its parent company, Hamilton International Corporation (hereafter Hamilton International).[3]
Mr. Richardson's complaint asserts that a proxy statement, dated May 19, 1969, proposing a merger between Hamilton Life and Hamilton International was false, misleading, and failed to disclose certain material facts in violation of 15 U.S.C. Secs. 78j(b) and 78n, and Rule 10(b)-5 and Regulation 14a issued thereunder.
The defendants claim that former Canons 6 and 37 of the Professional Ethics of the American Bar Association, now embodied in Canon 4 of the new Code of Professional Responsibility,[4] and Rule 11 of the Local Rules of the United States District Court for the Eastern District of Pennsylvania[5] require Mr. Richardson's disqualification as a party plaintiff.
* * *
The defendants, in support of their motion, note that Mr. Richardson, while an associate with the law firm of Schnader, Harrison, Segal and Lewis, performed extensive and detailed legal work for Hamilton Life. The record shows that his services commenced in September 1964, when the firm was retained as special counsel for Hamilton Life. At that time, the SEC was investigating whether Hamilton Life had violated the federal securities laws during an intrastate offering in Michigan. Mr. Richardson traveled to Michigan on a number of occasions to visit the Hamilton Life offices, and to conduct detailed investigations into the files of Hamilton Life, and into the personal files of its officers and directors. During these visits the plaintiff also conducted interviews with a number of the officers and director, who are now defendants in the present action.[6] He also reviewed stock subscription agreements and prepared memoranda for registration statements filed by Hamilton Life with the SEC.
During June of 1965, Mr. Richardson devoted a considerable amount of time preparing Messrs. Owens, Bruce and Safford for an SEC hearing in Washington, D. C. The preparation included the discussion of strategy with those officers and other attorneys in the Schnader firm.[7]
In October of 1965 the SEC issued "An Order for Public proceedings and Notice of Hearing Pursuant to Sections 15(B), 15(A) and 19(A) of the Securities and Exchange Act of 1934." Upon receipt of the order, Mr. Richardson drafted a memorandum evaluating it and suggesting possible defenses. In November of that year, responsibility for the defense of Hamilton Life and its officials shifted to counsel in Chicago.[8]
The rationale underlying Canon 4 is the principle that a client should be encouraged to reveal to his attorney all possibly pertinent information. See Canon 4 of the Code of Professional Responsibility, Notes 1 and 2. A client should not fear that confidences conveyed to his attorney in one action will return to haunt him in a later one. It is readily apparent that if an attorney is permitted to reveal confidences "the free flow of information from client to attorney, so vital to our system of justice, will be irreparably damaged." United States v. Standard Oil Company, 136 F. Supp. 345, 355 (S.D.N.Y.1955); see ABA, Informal Opinion No. 287 (1953).
Therefore, the courts, in order to protect the communications between attorney and client, have generally disqualified an attorney whenever the subject matter of the second representation is "so closely connected with the subject matter of the earlier representation that confidences might be involved." ABA, Informal Opinion No. 1233 (Aug. 24, 1972).[9]
The plaintiff contends that it is incumbent on the defendants to come forward with evidence to demonstrate that the previous representation is related to the present representation. The rule, however, is clear that the defendants need not show by direct evidence that Mr. Richardson acquired information in the course of the previous litigation which is to be used in the pending action. They only need to show that Mr. Richardson might have acquired substantially related material. T. C. Theatre Corp. v. Warner Bros. Pictures, supra.[10] This position was well stated by Judge Weinfeld in that decision as follows:
"In cases of this sort the Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject matter of his subsequent representation." Id. 113 F.Supp. at 269.
Mr. Richardson spent a considerable amount of time interviewing officers and directors, who are presently defendants, and examining their personal files, as well as the files of Hamilton Life. Although the exact nature of the information he received is unknown, it is known that he had access to confidential information about Hamilton Life's finances, corporate structure and operations, which he would not have received had he not been its attorney. We believe that the district court was justified in concluding that the information Mr. Richardson received in the prior SEC action might be related to the subject matter of his subsequent representation.
While we do not doubt that Mr. Richardson acted in good faith and had the best interests of his class at heart when he brought this suit, we do not believe that he should be permitted to place himself in a position where, even unconsciously, he will be tempted, or it appears to the public and his former clients that he might be tempted, in the interests of his new client, to take advantage of information derived from confidences placed in him by Hamilton Life and its officials. See Estates Theatres, Inc. v. Columbia Pictures Industries, Inc., 5 CCH Trade Reg.Rep. p 74,106, at 92,620 (S.D.N.Y., July 17, 1972); T. C. Theatre Corp., supra; cf. Fleischer v. A. A. P., Inc., 163 F.Supp. 548 (S.D.N.Y.1958). We note that Mr. Richardson is not the only member of the class available to maintain an action such as this, and the district court order does not preclude an action by others based on the subject matter of this suit.
Whenever an allegation is made that an attorney has violated his moral and ethical responsibility, an important question of professional ethics is raised. It is the duty of the district court to examine the charge, since it is that court which is authorized to supervise the conduct of the members of its bar.[11] The courts, as well as the bar, have a responsibility to maintain public confidence in the legal profession. This means that a court may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety.[12]
* * *
We have held that the regulation of attorneys appearing before the district court in these matters will be disturbed only when, on review of the record, we can say that the district court abused its permissible discretion.[13] Greene v. Singer, 461 F.2d 242 (3d Cir. 1972); cert. denied, 409 U.S. 848, 93 S. Ct. 54, 34 L.Ed.2d 89, (Oct. 10, 1972).
* * *
On this record the district court has not exceeded the bounds of its permissible discretion,[14] and the above-mentioned November 3, 1971, order (see note 1 supra) will be affirmed.
The lower court opinion is reported at 333 F.Supp. 1049 (E.D.Pa.1971). The first sentence of the November 3, 1971, order challenged by the appeal provides:
". . . the motion of Hamilton International Corporation, Hamilton Life Insurance Company of America and individually named defendant officers and directors of those companies to disqualify plaintiff, Mr. James M. Richardson, is GRANTED."
A motion to dismiss this appeal for lack of jurisdiction was denied by another panel of this court by order of February 10, 1972. See Greene v. Singer Co., 461 F.2d 242 (3d Cir.); cf. Hackett v. General Host Corp., 455 F.2d 618, 624-625 (3d Cir. 1972).
The complaint lists the following defendants, who are directors or officers in Hamilton Life or Hamilton International: Owens, Bruce, Safford, Milby, Gust, Davidson, Hofheins, Kresge, Mange, Schuler and Guenther. Also, Lybrand, Ross Bros. & Montgomery was listed as a defendant. The motion of Lybrand, Ross Bros. & Montgomery (an accounting firm) to disqualify plaintiff was denied by the November 3, 1971, order
Mr. Richardson first purchased shares in Hamilton Life in 1964 after he started to represent that company. At the time he filed his complaint, he owned 1100 shares
The Code of Professional Responsibility was adopted by the House of Delegates of the American Bar Association on August 12, 1969, to become effective for American Bar Association members on January 1, 1970
The Ethical Considerations of Canon 4 provides, inter alia:
"Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. . . . The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance.
"A lawyer should not use information acquired in the course of representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes. . . .
"The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment. . . ."
Rule 11 states that "the canons of ethics of the American Bar Association as now existing shall be and as hereinafter modified shall become standards of conduct for attorneys of this Court."
The officials interviewed included Owens, Bruce, Safford, Davidson, Gust and Milby
Paragraph 34(a)iii of the complaint alleged that the proxy statement was false and misleading, because it failed to set forth "the fact that individual defendants had caused Hamilton Life to pay about $100,000 in attorney's fees for the benefit of defendants Owens, Bruce and Safford. . . ." Those fees were for work done during the SEC hearing
The Controller for Schnader, Harrison, Segal and Lewis revealed that Mr. Richardson spent 669.1 hours between September 1964 and June 1966 on the representation of Hamilton Life
See, e. g., T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D. N.Y.1953); Consolidated Theatres, Inc. v. Warner Bros., 216 F.2d 920 (2d Cir. 1954); and Annotation, 52 A.L.R.2d 1243
See cases cited in note 9 supra
See E. F. Hutton v. Brown, 305 F.Supp. 371, 378 (S.D.Tex.1969)
The United States District Court for the Eastern District of Pennsylvania has adopted by Rule 11 the ABA Code of Professional Responsibility as containing proper standards of professional conduct for the members of its bar. Other courts have reached the same conclusion. See Estates Theatres, Inc. v. Columbia Pictures Industries, Inc., supra; E. F. Hutton & Co. v. Brown, supra 305 F. Supp. at 377 n. 7, and cases cited therein
Canon 9 provides that a lawyer should avoid even the appearance of professional impropriety. The Ethical Considerations under that Canon provide, inter alia:
". . . A lawyer should promote public confidence in our system and in the legal profession.
"Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical.
"Every lawyer owes a solemn duty . . . to strive to avoid not only professional impropriety but also the appearance of impropriety."
In this case, the court properly considered such factors as (333 F.Supp. at 1050 and 1055):
"Different and possibly conflicting policies of the law become apparent. On one hand SEC regulations are designed to protect shareholders of a corporation from wrongdoing and bad faith dealing with the 'insiders' of the corporation. Mr. Richardson is a shareholder and is, along with all other shareholders, entitled to that protection. On the other hand, the law seeks to protect attorney-client confidences. If the facts presented compel the conclusion that the attorney-client privilege exists as to these defendants, then the divergent policies of the law must be resolved, and, if possible, harmoniously reconciled.
"We come face to face now with the conflicting policies of the law, i. e., to protect shareholders and to protect the confidences of former clients. No amount of legal reasoning can completely harmonize this conflict. There are substantial arguments on both sides; it appears to be a question of priorities.
"In a suit of this nature there are other shareholders who are able to bring this suit for the benefit of all shareholders. The sacrosanct nature of the attorney-client privilege dictates that an attorney not disclose the confidences of his client no matter how heinous they may be.
"Mr. Richardson became a shareholder of Hamilton Life during the time that he was representing that company. I point this out not to infer that this was improper, but only to show that it may hint of some impropriety, and it is this suggestion of impropriety that I feel must be avoided."
The plaintiff urges that Greene v. Singer, supra, controls the outcome of this case. However, the factual basis of Greene is significantly different from the record presented in this case. Under the agreement between Greene and the Friden Company (later acquired by Singer), Greene undertook to develop devices that could be used by Friden in its manufacturing and Friden undertook to prosecute any patent applications on such devices through its patent attorney. Milliken was designated by Friden to act as such patent attorney for Greene. He was authorized and directed to receive disclosures and file any applications for patents. See paragraphs 8 and 9 of findings of fact in Greene v. Singer, Civil No. 1467 (D.N.J. 1971), as well as language of that opinion reproduced at 288a of Appendix in 3d Cir. No. 71-1835 (see, also, pars. 9, 10, 11, 14, 17 & 23 of Wilcox affidavit of April 12, 1971-146a-153a of above Appendix-and par. 5 of Wilcox affidavit of May 4, 1971, at 252a of such Appendix)