dissenting. The majority opinion has fairly and succinctly stated the factual background which precipitated the motion to disqualify the law firm of Wright, Lindsey & Jennings (the Wright Firm). In addition, it should be noted that the accident occurred on a Wednesday, that the two lawyers were contacted on the next day, and that the following Monday the firm discovered the potential conflict and immediately notified CNA that it could not represent the CNA insured, Kroger Stores, in the matter. Thus, only one full work day, Friday, elapsed between the time that the insurance carrier contacted Edwin L. Lowther, Jr., and his notifying CNA that he must decline further representation. As noted by the majority, and of paramount importance, no confidential information of any type was obtained by the Wright Firm from CNA or Kroger. Finally, it should be noted that Roger Glasgow, who had been contacted by Ryder, according to the undisputed testimony had been immediately and considerably involved at the outset, which involvement had consisted of meeting with a Ryder representative and a consulting expert and visiting the scene of the accident.
It is the manner in which the majority has applied the Model Rules of Professional Conduct and the policy considerations implicit in such application which provokes this dissent. The Preamble to the Model Rules contains the following recognition of the practical side of the practice of law:
In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.
At another point, the Preamble states:
The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.
The Preamble also contains a pertinent caveat:
The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.
In the instant case the contacts were solely between the Wright Firm and CNA and were minimal in nature, taking place over the span of one work day and parts of two others. Upon discovering the situation, the Wright Firm properly notified CNA that it was declining further representation of Kroger. There was no contact whatsoever between Kroger and the Wright Firm, and absolutely no confidential information was imparted to the Wright Firm from CNA.
What policy basis can require the disqualification of the Wright Firm from representing the interest of Ryder in this fact situation? The majority analogizes this case to situations where the public’s confidence in attorneys might be eroded by the appearance of a conflict of interest. But if one looks at the public’s confidence in attorneys, one must consider the impact of this decision on Ryder. On the day after the accident its representatives met with its chosen lawyer and a consulting expert who visited the scene and began supervising defense efforts. Now, Ryder is being told that it cannot have the benefit of further representation of the attorney who orchestrated its original defense strategy because this would erode the public’s confidence in attorneys. How does this revelation increase the confidence in the legal system of a client in the position of Ryder?
From the standpoint of the public at large it is difficult to fathom how this decision can be perceived as anything other than one of those endless rules which lawyers constantly argue over. The Preamble warns against the use of the Model Rules as procedural weapons and the commentary to Rule 1.7 notes that disqualification motions can be misused as a technique of harassment. When the only contact is from an insurance carrier and did not impart confidential information, disqualification amounts to exalting form over substance. It can hardly be justified as adding to the public’s confidence in the legal system.
If one looks at this by balancing the interests of the respective clients, how has this affected Kroger? They did not talk directly with the Wright Firm. Under their insurance contract with CNA, the carrier typically chooses the defense counsel. As has been repeatedly underscored no confidential information was revealed. Certainly if the respective effects on CNA/Kroger and Ryder are balanced, there is harm to Ryder without corresponding harm to CNA/Kroger.
Finally, how does this decision affect lawyers? If this result is mandated by Rule 1.9, does not a law firm which is retained by CNA have a Rule 1.9 conflict in any instance in which the interest of another carrier is adverse to CNA? Must such firm then withdraw from representing both carriers? When one considers the subrogation claims in the casualty insurance field, the logical extension of such reasoning is that a law firm may only represent one carrier at a time. The effect of such a decision on defense practice, and large law firms, should be readily apparent. It is submitted that such a result is not intended by the language and policy of Rule 1.9.
Of course, the answer to this problem is that the insured is the defense firm’s client from the standpoint of any Rule 1.9 analysis. Yet if this perspective is used in the instant case, the absence of any contact between Kroger and the law firm means that Rule 1.9 can not be the underpinning for disqualification.
As another basis for disqualification, one turns to the question of appearance of impropriety. This is a familiar and oft-quoted phrase but does not actually appear in the language of the Model Rules of Professional Conduct as adopted by this Court. Further, it should not be used to explain the end result of reasoning rather than to explain the exact policies and intricacies of such reasoning. This phrase should not be used as a tool for disqualification when the facts do not justify its invocation. See International Electric Corp. v. Flanzer, 527 F.2d 1288 (2nd Cir. 1975).
In summary, there simply is no practical reason nor is there a discernible policy behind the decision to disqualify. The effects on one of the litigants, the law firm, the practice of law, and indeed the public are unnecessary and unwarranted. Moreover, the potential mischief for the future in the logical extensions of this reasoning is apparent. For all of these reasons, I respectfully dissent.