In Re Corn Derivatives Antitrust Litigation (Mdl 414). Appeal of John E. Koerner & Co., Inc., Imperial Products Corporation, and Pan-O-Gold, Inc

748 F.2d 157, 1984 U.S. App. LEXIS 16681, 53 U.S.L.W. 2282
CourtCourt of Appeals for the Third Circuit
DecidedNovember 15, 1984
Docket83-5729
StatusPublished
Cited by140 cases

This text of 748 F.2d 157 (In Re Corn Derivatives Antitrust Litigation (Mdl 414). Appeal of John E. Koerner & Co., Inc., Imperial Products Corporation, and Pan-O-Gold, Inc) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Corn Derivatives Antitrust Litigation (Mdl 414). Appeal of John E. Koerner & Co., Inc., Imperial Products Corporation, and Pan-O-Gold, Inc, 748 F.2d 157, 1984 U.S. App. LEXIS 16681, 53 U.S.L.W. 2282 (3d Cir. 1984).

Opinions

OPINION OF THE COURT

SEITZ, Circuit Judge.

I.

A group of attorneys representing certain members of the plaintiff class,1 who are consumers of corn derivative products, move for the disqualification of Cochrane & Bresnahan as attorneys for the appellant Pan-O-Gold Baking Company. This motion was made during the pendency of this appeal challenging a order of the district court approving the settlement of the class action.

II. FACTS

The parties tacitly agree that this court should decide this motion on the present record. The pertinent facts are not in dispute. The St. Paul, Minnesota, law-firm of Cochrane & Bresnahan (“C & B”) was privately retained by the Pan-O-Gold Baking Company, Inc. (“Pan-O-Gold”) and Land O’Lakes, Inc. (“Land O’Lakes”) to file separate antitrust complaints against the major producers of corn derivative products. Several other actions were brought throughout the country, and all the actions were consolidated by the Multidistrict Litigation Panel into the present action in the district court in New Jersey. C & B continued to represent both Pan-O-Gold and Land [160]*160O’Lakes, who were named plaintiffs, as well as a plaintiff class member, General Mills, in this litigation.

After consolidation, a partner of C & B, John Cochrane, was named by the district court to be a member of the plaintiffs’ steering committee, the group of attorneys that guided the litigation of this matter.

Before this action reached trial, a settlement was negotiated. Prior to the hearing by the district court on the fairness of the settlement, John Cochrane filed a written objection to the settlement on behalf of Pan-O-Gold and Land O’Lakes. Later, on July 30, 1983, Cochrane was informed by an attorney for Land O’Lakes and General Mills that those companies had decided to accept the settlement if it were approved by the district court.

On September 7, 1983, the district court approved the settlement. On October 4, 1983, John E. Koerner & Company, Imperial Products Corporation and Pan-O-Gold, filed a notice of appeal. C & B mailed to the district court a notice of withdrawal as counsel of record for Land O’Lakes on October 18, 1983.2 On this appeal, C & B does not purport to represent anyone other than Pan-O-Gold.

The movants then filed this motion to disqualify C & B as attorneys for Pan-O-Gold before this court on the ground that C & B’s continued representation of Pan-O-Gold would violate the controlling standards of professional conduct.3

III. DISCUSSION

A. A DISQUALIFICATION MOTION BEFORE THE COURT OF APPEALS

This disqualification issue was not raised in the district court. We believe, however, that this motion is properly before us. One of the inherent powers of any federal court is the admission and discipline of attorneys practicing before it. See Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. den., 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975) (each court may create independent standards and rules for the admission and discipline of attorneys before it); Ramos Colon v. United States Attorney, 576 F.2d 1, 3 (1st Cir.1978). See also Fed.R.App.P. 46(C) (granting courts of appeals broad powers to discipline attorneys).

To resolve this motion, we must determine the governing standard for professional conduct before this court. Our court of appeals has never formally adopted any particular formulation of the standards of professional conduct. The lack of formal standards, however, cannot mean that the attorneys appearing before us do not have ethical obligations and duties. See United States v. DeFalco, 644 F.2d 132 (3d Cir. 1979) (en banc) (duty of professional conduct required before the court of appeals). Also, while the exact contours of that duty have not been stated, the vast majority of the courts in this country have adopted, with slight variation, the Code of Professional Responsibility promulgated by the American Bar Association, and thus, the basic principles of an attorney’s duties and responsibilities are clear and easily applied. Further, since each of the attorneys in C & B are bound by the duties imposed by the bars of their respective states, they have notice of the common principles against conflicts of interests imbedded in the national standards of current practice.

We believe that the appropriate guidance for finding the current national standards of ethical norms lies in the standards promulgated by the American Bar Association. Cf. Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (looking to ABA standards in determining prevailing norms of practice for sixth amendment claim). Accordingly, we will apply the principles and rules set forth in the ABA Model Code of Professional Responsibility, and in the re[161]*161cently approved Model Rules of Professional Conduct.

B. STANDING

The movants, purporting to speak for the plaintiff class, claim that C & B breached its duty of professional responsibility by taking a position on appeal for Pan-O-Gold adverse to that of Land O’Lakes in litigation in which C & B had previously represented both parties.

G & B contends that the plaintiff class, as an entity, lacks standing to challenge the alleged breach of duty to Land O’Lakes. They argue that the correlative right to C & B’s duty belongs only to the former client, Land O’Lakes. See In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88-89 (5th Cir.1976) (requiring disqualification motion to come from former client). But see Kevlik v. Goldstein, 724 F.2d 844 (1st Cir.1984) (disqualification motion may be made by any opposing attorney under his duty to report disciplinary violations). Assuming without deciding that a motion to disqualify must be brought by a former client, we believe that the requirement is satisfied because the present record discloses that Land O’Lakes, through their current attorneys, joined this motion to disqualify C & B. We, therefore, consider this motion as brought by Land O’Lakes.

Further, because there is a conflict between the positions of two clients who had individually and privately retained C & B, we may consider this case solely in the context of a conflict of interest between the attorney and those clients. We consider this to be a case where two clients retained the same law firm to file suit, and where, later, that law firm chose to represent one of those clients against the other in the course of the same litigation.

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Bluebook (online)
748 F.2d 157, 1984 U.S. App. LEXIS 16681, 53 U.S.L.W. 2282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-corn-derivatives-antitrust-litigation-mdl-414-appeal-of-john-e-ca3-1984.