Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation and Chrysler Realty Corporation

ADAMS, Circuit Judge

(concurring):

In this case the plaintiff, Silver Chrysler Plymouth, Inc., presents breach of contract ■ claims against Chrysler Motors Corp. based on diversity jurisdiction and on the Dealers Day in Court Act.1 Chrysler Motors seeks to disqualify plaintiff’s attorney, Dale A. Sehreiber, formerly an associate in the law firm that is, and for an extended period of time hqs been, counsel to Chrysler Motors (“Kelley Drye”). During his tenure at Kelley Drye, Mr. Sehreiber worked on numerous matters relating to Chrysler Motors, and Chrysler alleges that, deriving from such association, Mr. Sehreiber acquired confidential information that would make his continuation on the present case unethical under the Code of Professional Responsibility.

Our role as an appellate tribunal is, of course, a limited one. We are asked to review the facts found below to determine whether they are clearly in error, and to ascertain whether the legal tests applied are correctly formulated.2

Like the majority and the trial court, I believe that the relevant test for disqualification of an attorney under Canons Four and Nine of the Code of Professional Responsibility is the test articulated by Judge Weinfeld in T. C. Theatre Corp. v. Warner Brothers Pictures, Inc., and reaffirmed on a number of occasions by this 'Court: 3 “Where any substantial relationship can be shown between the subject matter of the former representation and that of a subsequent adverse representation, the latter will be prohibited.” 4

In this context, the question of “a substantial relationship” between the two matters is not one whose dimensions are delineated with mathematical precision. However, a case presenting an apt frame of comparison to the present suit is Motor Mart, Inc. v. Saab Motors, Inc.5 There, disqualification of plaintiff’s attorney was ordered in a Dealers Day in Court case. The challenged attorney had previously represented Saab “as its counsel on a regular basis” for a five-year period, during which time he had defended Saab in a state action charac*759terized as “essentially the same type of suit” as the Motor Mart case.6

Surely, were the proof to disclose that, while at Kelley Drye,.Mr. Schreiber had worked in any significant respect on a case implicating issues “essentially the same” as those in dispute here, his disqualification would appear to be mandated. This is so because, given the identity of issues between the earlier and present cases, Mr. Schreiber would be unable to overcome the inference that he was privy to client disclosures germane to the case here, and the appearance of impropriety would be sufficiently strong so as to prohibit his continued subsequent representation.

The district court investigated, thoroughly and meticulously, the serious charges brought forward by Chrysler against Mr. Schreiber. Chrysler did not persuade the district court that Mr. Schreiber, as a Kelley Drye associate, had maintained any but a peripheral involvement in a Chrysler matter bearing a substantial relationship to the matters at issue here. Based on the proof, the district court undertook to catalog Mr. Schreiber’s professional work while at Kelley Drye. The evidence credited by the district court included two affidavits, one by Mr. Schreiber himself, recollecting his cumulative participation in Chrysler matters, and the other by Mr. Clark J. Gurney, a former associate at Kelley Drye who, at the time in question, was the senior associate primarily responsible for Chrysler dealer litigation. These two affidavits complemented each other and disclosed that, generally, cases with which Mr. Schreiber was concerned raised factual and legal issues remote from the allegations in the present case. Mr. Gurney stated that Mr. Schreiber “did not work directly or indirectly on Chrysler dealer cases with the possible exception of researching a few specific points of law that may have been involved in a dealer case.” One example of such legal research had been documented in the affidavit by Mr. Schreiber.

Chrysler was at liberty to substantiate its broad claims that Mr. Schreiber had acquired confidences requiring disqualification. Evidence of his participation in any material aspect of a dealer litigation might well have provided support sufficient to sustain the defendant’s disqualification motion. The district judge suggested possible methods by which Chrysler might counter the affidavits, without breaching the very confidences that it was attempting to preserve. In particular, supportive data might have included the production of time sheets maintained by Kelley Drye that would disclose in detail Mr. Schreiber’s work on Chrysler matters related to the case at hand. No such evidence was forthcoming. Considering all the testimony and other material before it, the district judge made a finding that “the evidence demonstrates that there was no actual knowledge” by Mr. Schreiber of pertinent, confidential information from Chrysler.7

Having found that Mr. Schreiber obtained no actual knowledge that would operate to disqualify him, the district court proceeded to acknowledge its obligation to guard against an appearance of impropriety in a case such as this. Public confidence in the integrity of legal institutions serves as an over-arching consideration beneath which attorneys practice their profession. The semblance of unethical behavior by practitioners may well be as damaging to the public image as improper conduct itself. Thus, charges of potential abuse of client communications merit close scrutiny by courts. In questions such as these, judges are in effect the caryatids charged with upholding the highest of ethical standards in the legal profession.

It cannot be gainsaid that in a civil suit8 disqualification is in order where *760any inference can reasonably be maintained that client confidences may have been, or will be, violated. Here Kelley Drye has demonstrated only tangential involvement by Mr. Schreiber in any case related to the matter here. Therefore, Kelley Drye’s allegations would be tantamount to a claim that a showing of previous work by an attorney for a client would, without more, preclude any subsequent representation antagonistic to that client by the attorney. While the courts must apply the Canons broadly, and are admonished to draw the line at the first hint of unethical behavior, it would not appear appropriate to disqualify attorneys in such a sweeping and speculative fashion.

Rather, disqualification would seem to depend on a more refined assessment of the earlier and later cases. This analysis must be done, in the first instance, by the trial court. The trial judge should focus on the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney’s involvement with the cases. As part of its review, the court should examine the time spent by the attorney on the earlier cases, the type of work performed, and the attorney’s possible exposure to formulation of policy or strategy. Where a threshold quantum of similarity exists between the prior and current representations, courts must be scrupulous to ensure that even the appearance of impropriety is avoided.

The district court stated that, in order to justify disqualification, “Actual activities on specific cases by Schreiber must be demonstrated which would make it reasonable to infer that he gained some information about his former client of some value to his present client.”9 However, following a careful and conscientious review of the facts before it, the district court determined that the requisite showing of such a relationship was absent. I cannot conclude that such finding is erroneous.

Accordingly, I concur in the judgment affirming the district court. In so doing, however, candor requires that I express misgivings respecting the wisdom of attorneys accepting representations when former clients are involved. Although it was not established that the representation here warrants disqualification, my concurrence should not be. understood as an approval of the practice, a practice which ofttimes necessitates an examination of the obligation due a former law firm and client, and imposes on the court the duty to probe the outer reaches of the Canons of Ethics.

. 15 U.S.C. § 1221 et seq. (1974).

. Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946); Van Meter v. United States, 47 F.2d 192 (2d Cir. 1931).

. Hull v. Celanese Corp., No. 74-2126, 513 F.2d 568 (2d Cir. 1975); Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268 (2d Cir. 1975); General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973).

. 113 F.Supp. 265, 268 (S.D.N.Y.1953).

. 359 F.Supp. 156 (S.D.N.Y.1973).

. Id. at 157.

. 370 F.Supp. 581, 586 (E.D.N.Y.1973).

. Additional, constitutional considerations are present in the criminal field. See, United States v. Wisniewski, 478 F.2d 274 (2d Cir. 1973); United States v. Sheiner, 410 F.2d 337 (2d Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969).

. 370 F.Supp. at 589.