Aetna Casualty & Surety Co. v. United States

570 F.2d 1197
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 31, 1978
DocketNo. 77-2303
StatusPublished
Cited by20 cases

This text of 570 F.2d 1197 (Aetna Casualty & Surety Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aetna Casualty & Surety Co. v. United States, 570 F.2d 1197 (4th Cir. 1978).

Opinion

FIELD, Senior Circuit Judge:

The United States has appealed from an order of the district judge disqualifying the Department of Justice and the United States Attorney from representing four of its individual codefendants in this case. The district court concluded that such representation would violate Disciplinary Rules 5-105(A) and 5-105(B) of the Code of Professional Responsibility adopted by the North Carolina State Bar effective January I, 1974. 4A Gen.Stat. Append. VII 240 (Supp.1975).1

[1199]*1199The substantive litigation arises out of the crash of Eastern Airlines Flight 212 as it approached the airport at Charlotte, North Carolina, on the morning of September 11, 1974. At the time of the crash the individual defendants, Bernard C. Grose-close, Alden E. Hare, William L. Hogan and Dennis L. Hunter, were on duty at the airport as air traffic controllers employed by the Federal Aviation Administration.2

The plaintiff insurance companies have paid approximately twenty-five million dollars in settlement of wrongful death, personal injury, and property damage claims arising from the plane crash, and they filed this action on February 9, 1977, against the United States and the four federal air traffic controllers mentioned above. Charging that the negligence of the defendants was the proximate cause of the crash, the plaintiffs seek indemnification and contribution from the defendants for the amounts paid in settlement of the various insurance claims. Jurisdiction for the action against the United States is alleged under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and for the claims against the individual defendants under 28 U.S.C. § 1332. The plaintiffs have charged, and the Government admits, that at the time of the crash the four individual defendants were acting within the course and scope of their employment.

On March 23, 1977, the four individual defendants, who at the time were represented by the Department of Justice, filed a motion for summary judgment or, in the alternative, to dismiss the complaint. On May 2, 1977, the plaintiff insurance compa-mes filed a memorandum and affidavit in opposition to the motion, and on the same day filed the motion to disqualify government counsel from representing the four air traffic controllers. The district judge conducted a non-evidentiary hearing on the motions on May 17,1977, and, while indicating that he perceived a conflict of interest on the part of the Government counsel, deferred ruling on the disqualification motion for a period of thirty days in the hope that the matter might be resolved without further action by the court. By order entered on May 19, 1977, the motions of the individual defendants for dismissal or summary judgment were denied.

On June 29, 1977, the Deputy Assistant Attorney General for the Civil Defense Division of the Department of Justice wrote to the district court and requested an opportunity to present additional evidence and argument bearing upon the existence of any potential conflict of interest between the United States and the individual defendants. He further advised the court that the question had been carefully reviewed in the Department of Justice and that the Department could discern “no conflict at the present time”, and that the possibility of any conflict developing in the future appeared “extremely remote”. He stated that the matter had been discussed at length with the individual defendants and that they had “knowingly and intelligently asserted their desire to be represented jointly by the Department of Justice”.

The district court convened a second hearing on July 25, 1977, at which time the [1200]*1200Deputy Assistant Attorney General was present, together with the four defendant air traffic controllers and counsel for their union. The court was advised that the question of conflict had been discussed with the air controllers in the presence of counsel for their union and that they, with the concurrence of the union counsel, consented to, and indeed demanded, joint representation by the Government. Counsel for the Department of Justice suggested that the court examine the individual defendants in camera, or otherwise hear their testimony with respect to the issue of full disclosure and informed consent to joint representation. The district judge, however, declined these suggestions and advised the parties that he would defer action for another ten days, indicating that if the Government failed to change its position he would enter adverse findings on the conflict question. By letter of August 3, 1977, the Department of Justice advised the court that the Government adhered to its position, and on October 14, 1977, the district court entered the order of disqualification from which the Government has appealed.

As a prefatory matter, we note that it is now well established that the order of a district court granting or denying a motion to disqualify an attorney is a final order appealable pursuant to 28 U.S.C. § 1291, MacKethan v. Peat, Marwick, Mitchell & Co., 557 F.2d 395, 396 (4 Cir. 1977); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2 Cir. 1974), and we reject the argument of the plaintiffs that the United States is not an aggrieved party and therefore lacks standing to prosecute this appeal. The United States Attorney and the Department of Justice are the targets of the district court’s order and, in our opinion, it would be sophistic to say that the Government is not adversely affected by their disqualification. See In Re Investigation before April 1975 Grand Jury, 174 U.S.App.D.C. 268, 274, 531 F.2d 600, 606 (1976).3

Turning to the merits of the appeal, the plaintiffs contend that the scope of our review is limited to a determination of whether the district court abused its permissible discretion. While some of the cases support the position of the plaintiffs on this point, more recently the courts have expressed serious reservations about whether the limited abuse of discretion standard is appropriate in disqualification cases where only a purely legal question is at issue. Woods v. Covington Cty. Bank, 537 F.2d 804 (5 Cir. 1976); Kroungold v. Triester, 521 F.2d 763, 765, n.2 (3 Cir. 1975); American Roller Company v. Budinger, 513 F.2d 982, 985, n.3 (3 Cir. 1975). We are inclined to agree with the Fifth Circuit that “[i]n disqualification cases such as this, where the facts are not in dispute, District Courts enjoy no particular functional advantage over appellate courts in their formulation and application of ethical norms,”4

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The Aetna Casualty And Surety Company v. United States
570 F.2d 1197 (Fourth Circuit, 1978)

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Bluebook (online)
570 F.2d 1197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-casualty-surety-co-v-united-states-ca4-1978.