Wise v. U.S. Healthcare

30 Pa. D. & C.4th 162, 1996 Pa. Dist. & Cnty. Dec. LEXIS 347
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJanuary 19, 1996
Docketno. 91-04390-20-1
StatusPublished

This text of 30 Pa. D. & C.4th 162 (Wise v. U.S. Healthcare) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wise v. U.S. Healthcare, 30 Pa. D. & C.4th 162, 1996 Pa. Dist. & Cnty. Dec. LEXIS 347 (Pa. Super. Ct. 1996).

Opinion

McANDREWS, J.,

— This matter is before the court following defendant U.S. Healthcare’s appeal to the Superior Court of an order the court entered on August 21, 1995, denying defendant’s petition to disqualify Thomas C. Zielinski, Esquire, and the law firm of Cozen & O’Connor from continuing its representation of plaintiff Allen F. Wise in this litigation. Defendant appealed this order. A motion to quash the appeal was filed with the Superior Court on September 26, 1995, and denied by order dated December 18, 1995. This opinion is written in response to the appeal.

[164]*164A review of the record and the docket presents the court with a lengthy and complex employment/trade secrets case. This action was commenced on May 2, 1991. Following an extensive and protracted period of discovery and motion practice between the parties, plaintiff filed a certification of trial notice under Bucks County Local Rule 261(b) on November 23, 1994. Defendant U.S. Healthcare subsequently had 60 days in which to complete all discovery in the case.

On February 1, 1995, 10 attorneys from the law firm of Wolf, Block, Schorr & Solis-Cohen joined the firm of Cozen & O’Connor. This case first appeared on the Bucks County trial list for the two-week period beginning May 30, 1995. On May 19, 1995, defendant USH filed a petition to disqualify Attorney Zielinski and the firm of Cozen & O’Connor from continuing their representation of plaintiff.

The basis of defendant’s petition to disqualify stems from the fact that Wolf, Block, Schorr & Solis-Cohen once served as outside general counsel for defendant and, thus, because Cozen & O’Connor hired some 10 attorneys from the Wolf, Block firm, defendant maintained that Attorney Zielinski and the entire Cozen firm were precluded from continuing their representation of plaintiff.

Because of this petition, the court granted defendant’s request for a continuance of the trial until September 1995. The court specified in its order of July 7, 1995, that no further continuances would be granted. After reviewing the briefs, and after extensive oral argument, the court by order dated August 21, 1995, determined that plaintiff’s counsel should not be disqualified from [165]*165representing Mr. Wise in this action and denied the petition. Defendant filed a timely appeal as well as an emergency petition to stay the trial of this case pending this appeal.

Preliminarily, the court notes that disqualification is a harsh measure and is generally not favored by the courts. As the United States Court of Appeals for the Third Circuit has explained, a 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 counterprevailing policies, such as permitting a litigant to retain the counsel of her choice and enabling attorneys to practice without excessive restrictions.” United States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980), quoted in, Commonwealth Insurance Co. v. Graphix Hot Line Inc., 808 F. Supp. 1200, 1203 (E.D. Pa. 1992).

The court is also aware that a litigant’s right to choose counsel is entitled to substantial deference. Commonwealth Insurance Co., supra, citing, Hamilton v. Merrill Lynch, 645 F. Supp. 60, 61 (E.D. Pa. 1986). Additionally, the court must prevent parties from using motions to disqualify opposing counsel for tactical purposes. Id.

The burden of proof in this case lies with the party seeking the disqualification of counsel. See e.g., INA Underwriters Insurance Co. v. Nalibotsky, 594 F. Supp. 1199, 1207 (E.D. Pa. 1984). The party seeking to disqualify opposing counsel must make a clear showing that continued representation would be impermissible. Commercial Credit Business Loans Inc. v. Martin, 590 F. Supp. 328, 335 (E.D. Pa. 1984).

[166]*166Defendant’s petition to disqualify counsel in this case focuses on the Rules of Professional Conduct relating to conflicts of interest involving former clients. More specifically, Rule 1.9(a) provides that an attorney may not represent a person in the same or a “substantially related” matter where that person’s interests are materially adverse to the interests of the former client, absent the former client’s consent following disclosure of the facts and circumstances. Rule 1.9(b) precludes the disclosure of non-public information relating to the representation of a former client to the former client’s disadvantage, except where such disclosure is mandatory or permissive under Rule 1.6 relating to confidentiality of information.

Rule 1.10 of the Rules of Professional Conduct provides that an attorney at a law firm may not represent a client if any other attorney at the firm would be precluded from doing so under Rule 1.9, unless the attorney who previously represented the party whose interests are materially adverse to the firm’s other client is “screened” from any participation in the matter. See Rule 1.10(b)(1). In order for the “screening” requirement to be in effect, however, the current representation must be in the same or a substantially related matter. In this case, the matters at issue clearly are not the same, and, in the court’s opinion, neither matter is substantially related.

The substantial relationship test requires the court to consider the following three factors:

“(1) The nature and scope of the prior representation at issue;
“(2) The nature of the present lawsuit against the former client; and
“(3) Whether the former client disclosed confidences to the attorney which could be relevant and detrimental [167]*167to the former client in the present action.” Reading Anthracite Co. v. Lehigh Coal & Navigation Co., 771 F. Supp. 113, 115 (E.D. Pa. 1991).

After applying these principles of law to the facts of this case, the court determined that the requirements of the substantial relationship test had not been met and that, as such, defendant’s petition to disqualify should be denied and the trial should proceed.

In their petition, defendant alleges that, among the attorneys who left Wolf, Block to join Cozen & O’Con-nor was Robert Fiebach, Esquire, a senior litigator. Defendant claims that Attorney Fiebach is presently one of Cozen & O’Connor’s senior litigators and that plaintiff Wise’s counsel, Attorney Zielinski, now reports directly to Fiebach concerning commercial litigation matters such as this case.

Defendants further allege that, from at least 1985-89, the Wolf, Block firm served as “outside general counsel” to defendant U.S. Healthcare. Defendant avers that, in this capacity, the firm, and those attorneys who left to join the Cozen firm, had access to a “range of confidential and privileged communications” with the defendant in this case. Defendant argues that these attorneys have acquired “information which can now be used against USH” in this case. The only specific representation of defendant USH by the Wolf, Block firm that was asserted in the petition was the case captioned, In re U.S. Healthcare Inc. Securities Litigation,

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Related

United States v. Miller, William G.
624 F.2d 1198 (Third Circuit, 1980)
Commonwealth Insurance v. Graphix Hot Line, Inc.
808 F. Supp. 1200 (E.D. Pennsylvania, 1992)
Hamilton v. Merrill Lynch
645 F. Supp. 60 (E.D. Pennsylvania, 1986)
Reading Anthracite Co. v. Lehigh Coal & Navigation Co.
771 F. Supp. 113 (E.D. Pennsylvania, 1991)
INA Underwriters Insurance v. Nalibotsky
594 F. Supp. 1199 (E.D. Pennsylvania, 1984)
Commercial Credit Business Loans, Inc. v. Martin
590 F. Supp. 328 (E.D. Pennsylvania, 1984)

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Bluebook (online)
30 Pa. D. & C.4th 162, 1996 Pa. Dist. & Cnty. Dec. LEXIS 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wise-v-us-healthcare-pactcomplbucks-1996.