Euell v. Rosemeyer

153 F.R.D. 576, 1993 U.S. Dist. LEXIS 20015, 1993 WL 603169
CourtDistrict Court, W.D. Pennsylvania
DecidedDecember 9, 1993
DocketCiv. A. No. 91-218 E
StatusPublished
Cited by2 cases

This text of 153 F.R.D. 576 (Euell v. Rosemeyer) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Euell v. Rosemeyer, 153 F.R.D. 576, 1993 U.S. Dist. LEXIS 20015, 1993 WL 603169 (W.D. Pa. 1993).

Opinion

OPINION

SENSENICH, United States Magistrate Judge.

Petitioner, Eddie Euell, has filed a motion to disqualify the entire Erie County District Attorney’s Office from participation in this habeas corpus action because of an alleged conflict of interest. A hearing was held on November 22, 1993 in which Petitioner was represented by Assistant Federal Public Defender Jay Finkelstein, and the Commonwealth was represented by Assistant District Attorney Kenneth Zak. This court will deny petitioner’s motion.

Petitioner was represented at trial in the Erie County Court of Common Pleas, No. 769 of 1986, by attorney James Vogel of the Erie County Public Defender’s Office. Attorney Vogel is now the First Assistant District Attorney of the Erie County District Attorney’s Office. Petitioner has argued that because attorney Vogel represented him when he was a member of the public defender’s office, his present employment with the district attorney’s office creates a conflict of interest necessitating the disqualification of the entire district attorney’s office.

Attorney Vogel testified that he is aware that petitioner filed a habeas corpus petition that involves a case in which he served as defense counsel, and that the standard practice of the district attorney’s office for dealing with such situations was followed in this case. He explained that the standard policy, enforced by the administrative first assistant district attorney, is to screen assistant district attorneys from any contact with the files of cases involving former clients. Accordingly, he has had no contact with the file of this case and if petitioner’s name is mentioned in his presence, he leaves the room. He further testified that the only discussion he has had in reference to this petitioner was a conversation with Assistant District Attorney Zak regarding his testimony in the instant hearing.

The determination as to whether to disqualify counsel because of a conflict of interest is within the discretion of the court. Akerly v. Red Barn System, Inc., 551 F.2d 539 (3d Cir.1977). The Pennsylvania Rules of Professional Conduct, adopted by the Supreme Court of Pennsylvania in 1988 [hereinafter Rules of Conduct], have been adopted by the United States District Court for the Western District of Pennsylvania, and this court must apply those rules when determining the appropriate professional conduct of an attorney practicing in Pennsylvania. Local Rule 22. See also Reading Anthracite Co. v. Lehigh Coal & Nav. Co., 771 F.Supp. 113, 114 (E.D.Pa.1991).

[578]*578While none of the Rules of Conduct specifically addresses the instant situation, several of the Rules do provide guidance. The Rules of Conduct prohibit an attorney from representing a client in either the same or a substantially related matter in which the attorney represented another client, unless there is full disclosure and consent. Pa. Rules of Professional Conduct 1.9. Furthermore, all attorneys in a firm are prohibited from representing a client when any one of them practicing alone would be prohibited from doing so. Pa. Rules of Professional Conduct 1.10. The Comment to Rule 1.10 defines the term “firm,” and instructs that because of the extensiveness of Rule 1.10 and the potentially burdensome effect on the government, “the government is much better served ... by the protections stated in Rule 1.11.” Pa. Rules of Professional Conduct, 1.10 cmt.

Looking to Rule 1.11, we are provided with limited guidance as it does not specifically address this particular situation. Rather, Rule 1.11 addresses the conflict of interest created when an attorney leaves private practice to begin working for the government, or leaves government employment to begin private practice. No rule addresses the situation where an attorney remains in government employment, but switches agencies. It is helpful to note, however, that Rule 1.11 does not require disqualification of the other lawyers in the agency in which the lawyer in question has become associated. Pa. Rules of Professional Conduct, 1.11 cmt.

Finally, Rule 1.6 provides that while an attorney is prohibited from revealing information relating to representation of the client even after the lawyer-client relationship is terminated, an attorney may reveal such information to respond to allegations concerning the lawyer’s representation of the client. Therefore, attorney Vogel is expressly permitted to disclose information regarding his representation of petitioner in any proceeding regarding the effectiveness of that representation. See Reading Anthracite Co., 771 F.Supp. at 117. However, the Court of Appeals has ordered this court to determine whether petitioner’s ineffectiveness claims are procedurally barred or unex-hausted. Therefore, we will not hear the merits of these claims unless petitioner shows cause and prejudice.

The Pennsylvania courts have addressed situations similar to the instant case. In Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525 (1980), the court considered the conflict of interest problem created when a former public defender joins the district attorney’s office and a defendant moves for disqualification of the entire office because a different member of the public defender’s office previously represented a co-defendant. The court followed the reasoning of Commonwealth v. Grucella, 58 Luz.L.R. 137 (1968), aff'd 214 Pa.Super. 716, 249 A.2d 821 (1969) , as well as the majority of other jurisdictions 1, and determined that disqualification of the entire office was not necessary because the attorney took no part in the trial of the defendant and had not imparted any information concerning the case to the district attorney or his staff. Miller, 422 A.2d at 528.

The court was unable to “ignore the devastating impact that disqualifying the entire district attorney’s office would have” if such a broad disqualification were ordered. Id., at 529. Rather,

[ijnstead of opting for such an extravagant^ ly indulgent application of the ‘appearance of impropriety’ standard, [the court] prefer[s] to rely on the integrity of the district attorneys of this Commonwealth not to participate in the prosecution of cases when such prosecution would generate an appearance of impropriety.

Id., at 529.

Similarly, in Commonwealth v. Harris, 501 Pa. 178, 460 A,2d 747 (1983), the Pennsylvania Supreme Court relied on Millet’s rejection of the “appearance of impropriety” standard,2 and declined to disqualify the entire district attorney’s office from representing the Commonwealth when the District Attorney, a former Chief Public Defender, had [579]*579once represented the defendant in a prior Post Conviction Hearing Act appeal. The court so aptly noted that the difficulty with the defendant’s argument is that

taken to its logical extreme, it would allow a defendant to have his case dismissed any time a special prosecutor was not appointed to his case when a member of the public defender’s staff has been appointed to the staff of the District Attorney during the pendency of defendant’s post-trial proceedings.

Harris, 460 A.2d at 749.

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Cite This Page — Counsel Stack

Bluebook (online)
153 F.R.D. 576, 1993 U.S. Dist. LEXIS 20015, 1993 WL 603169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/euell-v-rosemeyer-pawd-1993.