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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRANKLIN C. BROWN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RITE AID CORPORATION, BALLARD : No. 1362 MDA 2021
SPAHR, LLP, AND WILLIAM A. :
SLAUGHTER :
Appeal from the Order Entered September 21, 2021
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 2018-02654
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 27, 2023
Franklin C. Brown (“Brown”) appeals from the order denying his motion
to disqualify William A. Slaughter, Esquire (“Attorney Slaughter”) and the law
firm of Ballard Spahr, LLP (“Ballard”) from representing Rite Aid Corporation
(“Rite Aid”). We affirm.
Brown was an officer, director, and chief counsel for Rite Aid for many
years. In 1999, Rite Aid misstated its fiscal financial reporting results,
resulting in numerous shareholder derivative lawsuits filed against Rite Aid
and its board of directors, including Brown. Rite Aid retained Ballard to
represent it and its board of directors and officers in its defense of those
actions (“derivative actions”). Attorney Slaughter from Ballard was one of the
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* Retired Senior Judge assigned to the Superior Court.
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lead attorneys for Rite Aid. Rite Aid hired another law firm, Swidler & Berlin,
to conduct an internal investigation of Rite Aid’s accounting practices. Brown
alleges that during this internal investigation, Swidler & Berlin obtained
confidential information about him and shared the information with Attorney
Slaughter and Ballard. However, Brown alleges that he was not aware of this
until April 2019 when Attorney Slaughter disclosed this in a deposition.
In December 2000, Ballard and Attorney Slaughter successfully
negotiated a settlement of the derivative actions. The settlement agreement
defined the “Settling Defendants” as Rite Aid and its current and former
directors, which included Brown. All “Settling Defendants” were also “Released
Parties” under the settlement agreement. The settlement agreement also
contained a “Bar Order” and permanent federal injunction whereby the
Settling Defendants were “permanently barred, enjoined and restrained from
commencing, prosecuting, or asserting any other claim, however styled,
whether for indemnification, contribution or otherwise, and whether arising
under state, federal or common law, against the Released Parties based upon,
arising out of or relating to the Settled Claims.” The late United States District
Judge Stewart Dalzell approved the settlement agreement on August 15,
2001.
A little more than a year later, on October 9, 2002, Rite Aid, through its
attorneys at Ballard, including Attorney Slaughter, sued Brown in the Court of
Common Pleas of Cumberland County (“Underlying Action”). Rite Aid asserted
numerous claims against Brown, including breach of fiduciary duty, civil
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conspiracy and breach of contract. This litigation continued for approximately
14 years. In 2016, Brown’s attorneys alleged that they discovered that Ballard
and Attorney Slaughter had caused Rite Aid to initiate the Underlying Action
against Brown illegally in violation of the settlement agreement, the Bar Order,
and the permanent federal injunction.1 In March 2016, Brown filed a motion
in the Eastern District of Pennsylvania to enforce the settlement agreement,
Bar Order, and permanent injunction. In June 2016, Judge Dalzell found that
Rite Aid had violated the settlement agreement, Bar Order, and injunction
when it commenced the Underlying Action against Brown. The court enjoined
Rite Aid from proceeding with the Underlying Action.
In March 2018, Brown filed the current action against Rite Aid, Ballard,
and Attorney Slaughter based on their allegedly wrongful initiation of the
Underlying Action. He asserted claims of wrongful use of civil proceedings,
abuse of process, and civil conspiracy. In April 2019, Brown deposed Attorney
Slaughter in a separate case in Dauphin County. Brown alleges that during
that deposition, “Brown learned for the first time that substantial personal and
confidential information that Brown had provided to Swidler & Berlin’s
attorneys during their internal investigation had been shared with” Ballard and
Attorney Slaughter. Brown’s Br. at 9 n.3.
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1Brown maintains that for many years, he was unaware of the settlement
agreement and Bar Order, as well as his status as a “Released Party.”
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Some two and a half years later, in August 2021, Brown filed a motion
to disqualify Ballard and Attorney Slaughter from representing Rite Aid due to
a conflict of interest. The court heard argument on the motion to disqualify
and denied the motion on September 20, 2021. This appeal followed. 2, 3
Brown raises two issues for our review:
1. Whether William Slaughter, Esq. should be disqualified
from representing his codefendant Rite Aid Corporation
in this case[?]
2. Whether Ballard Spahr, LLP should be disqualified from
representing its codefendant Rite Aid Corporation in this
case[?]
Brown’s Br. at 4.
Brown’s two issues are related so we address them together. Brown
argues that Attorney Slaughter should be disqualified from representing Rite
Aid because during the internal investigation of Rite Aid, Swidler & Berlin
obtained confidential information about Brown and shared this information
with Attorney Slaughter. Brown’s Br. at 32. Brown contends that Attorney
Slaughter and Ballard may not use this information against him in the instant
lawsuit. Id. Citing Rule of Professional Conduct 1.9, Brown argues that an
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2 An “order denying a motion to disqualify a law firm based on conflict of
interest is immediately appealable as a collateral order.” See Rudalavage v.
PPL Elec. Util. Corp., 268 A.3d 470, 478 (Pa.Super. 2022); see also
Pa.R.A.P. 313 (governing collateral orders).
3In the same notice of appeal, Brown also appealed the court’s order denying
his motion to file an amended complaint. However, we quashed that portion
of the appeal as a non-appealable collateral order. See Order, 3/14/22.
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attorney who has formerly represented a client in a matter is prohibited from
representing another person in a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client.
Id. at 28-29. According to Brown, Judge Dalzell has already ruled that the
derivative litigation in which Attorney Slaughter represented Brown involved
the same transactions and legal disputes in the Underlying Action which forms
the basis of Brown’s claims in the current case. Id. at 30. Brown thus contends
that the instant lawsuit is “substantially related” to the earlier derivative
litigation and Attorney Slaughter should be disqualified from representing Rite
Aid. Id. at 37. Brown also argues that Ballard should likewise be disqualified
under Rule of Professional Conduct 1.10 because the duty owed by an attorney
to his client extends to members of the attorney’s law firm. Id. at 37-38.
Brown additionally argues that Attorney Slaughter and Ballard should
be disqualified from representing Rite Aid under Rule of Professional Conduct
1.7. Id. at 38. That Rule, discussed below, prohibits an attorney from
representing a client if a concurrent conflict of interest exists, that is, the
representation of one client is directly adverse to the interests of another
client. Brown argues that a concurrent conflict of interest exists because “[a]s
codefendants, Rite Aid on the one hand and [Attorney Slaughter and Ballard]
on the other, are aligned directly against each other because each would
potentially benefit from blaming the other for the misconduct alleged in the
Complaint.” Id. at 40-41. Brown concludes that because “[Attorney]
Slaughter and Ballard [] cannot reasonably ignore their own financial interests
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and wellbeing as codefendants with Rite Aid, this Court should not permit the
concurrent conflicts of interest to continue.” Id. at 47.
This Court employs a plenary standard of review when reviewing a trial
court’s order on disqualification of counsel. Rudalavage, 268 A.3d at 478. A
court may disqualify an attorney for violating ethical rules. Id. Although
disqualification is an appropriate sanction in some cases, “it is a serious
remedy which must be imposed with an awareness of the important interests
of a client in representation by counsel of the client’s choice.” McCarthy v.
Se. Pa. Transp. Auth., 772 A.2d 987, 991 (Pa.Super. 2001) (internal
quotation marks and citation omitted). Indeed, “courts should not lightly
interfere with the right to counsel of one’s choice. Thus, disqualification is
appropriate only when both another remedy for the violation is not available
and it is essential to ensure that the party seeking disqualification receives the
fair trial that due process requires.” Rudalavage, 268 A.3d at 478 (citation
omitted).
An attorney owes its client a fiduciary duty, which prohibits the attorney
from engaging in conflicts of interest. Dougherty v. Phila. Newspapers,
LLC, 85 A.3d 1082, 1086-87 (Pa.Super. 2014). Rule 1.9 of the Rules of
Professional Conduct is a recognition of the common-law duty attorneys owe
to their current and former clients. It provides, in pertinent part:
(a) A lawyer who has formerly represented a client in a matter
shall not thereafter represent another person in the same or a
substantially related matter in which that person’s interests are
materially adverse to the interests of the former client unless the
former client gives informed consent.
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***
(c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in
a matter shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules
would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except
as these Rules would permit or require with respect to a
client.
Pa.R.P.C. 1.9(a), (c).
To establish grounds for disqualification, the former client must
demonstrate three elements:
(1) that a past attorney/client relationship existed which was
adverse to a subsequent representation by the law firm of the
other client; (2) that the subject matter of the relationship was
substantially related; (3) that a member of the law firm, as
attorney for the adverse party, acquired knowledge of confidential
information from or concerning the former client, actually or by
operation of law.
Dougherty, 85 A.3d at 1087 (citation omitted).
Rule 1.7 of the Rules of Professional Conduct governs conflicts involving
current clients and forbids concurrent conflicts of interest. Pa.R.P.C. 1.7(a). A
concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or (2) there is a significant risk that the
representation of one or more clients will be materially limited by
the lawyer’s responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
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Id. Rule 1.7(b) also outlines four circumstances that must be present that
permits an attorney to engage in a representation despite the existence of a
concurrent conflict of interest. It provides:
(b) Notwithstanding the existence of a concurrent conflict of
interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be
able to provide competent and diligent representation to
each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a
claim by one client against another client represented by the
lawyer in the same litigation or other proceeding before a
tribunal; and
(4) each affected client gives informed consent.
Pa.R.P.C. 1.7(b).
Here, in denying Brown’s motion to disqualify counsel, the trial court
observed that Ballard’s representation of Brown in the derivative litigation
terminated 21 years ago when Brown retained separate counsel to represent
his interests. Trial Court Opinion, filed 12/29/21, at 2. The court found that
Ballard’s representation of Brown involved no communication of confidential
information between Brown and Ballard that could be used to Brown’s
detriment in the present case. Id. The court determined that Rule 1.9 was not
applicable because this matter is not the “same or substantially related” to the
derivative action. Id. It further found that there was no conflict between the
interests of Rite Aid and Ballard under Rule 1.7, “and even if there were, . . .
Rite Aid has selected Ballard as its counsel in this matter and has waived any
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asserted conflict that would preclude Ballard from undertaking that
representation.” Id. at 3.
We discern no error by the trial court in denying the motion for
disqualification. Brown does not allege that he communicated any confidential
information to Attorney Slaughter or Ballard. Rather, he claims he
communicated information to another firm, Swidler & Berlin, who was retained
by Rite Aid to conduct an internal investigation of its accounting practices.
Thus, Brown cannot claim any confidentiality interest in the unidentified
information he allegedly provided to Swidler & Berlin since he did not have an
attorney-client relationship with Swidler & Berlin.
Further, this case is not the “same or substantially related” to the
derivative actions. The derivative actions involved shareholders bringing
lawsuits against Rite Aid and its directors for accounting misreporting. This
case arises from Brown’s claims of wrongful use of civil proceedings, abuse of
process, and civil conspiracy against Rite Aid and its counsel based on their
wrongful initiation of the Underlying Action. Additionally, although a party
requesting disqualification need not disclose the specific confidential
information that was obtained by their former counsel, see Pa.R.P.C. 1.9 cmt.
3, Brown fails to demonstrate how the information that Ballard allegedly
obtained in its representation of Brown as a board member in the derivative
action would be used to his detriment in the present case. Brown’s conclusory
arguments do not carry his burden. Thus, disqualification under Rule 1.9 is
not warranted.
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Disqualification under Rule 1.7 is also not warranted. By its plain terms,
Rule 1.7 relates to a current client’s interest as it relates to his attorney. Brown
is not the current client of Ballard or Attorney Slaughter. Therefore, Rule 1.7
is inapplicable. Even if Rule 1.7 applied, Rite Aid has given its informed consent
to Ballard’s concurrent representation of it, Ballard, and Attorney Slaughter in
the defense of this case. Brown is not conceivably harmed by that concurrent
representation. Thus, the court did not err in denying Brown’s motion for
disqualification under Rule 1.7.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2023
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