BLUEBEARD'S CASTLE, INC., Plaintiff,
v.
DELMAR MARKETING, INC., Defendant.
Civ. No. 1993-125.
District Court, Virgin Islands, D. St. Thomas and St. John.
February 7, 1995. Opinion Denying Reconsideration March 31, 1995.*1205 *1206 Samuel Hall, Jr., Birch, de Jongh, Hindels & Hall, St. Thomas, VI, for plaintiff.
Charles Engeman, Dudley, Topper & Feuerzeig, St. Thomas, VI, for defendant.
MEMORANDUM
MOORE, Chief Judge.
This matter came before the Court on December 16, 1994 for oral argument on the defendant's motion to disqualify plaintiff's counsel. Having reviewed the parties' briefs, the Court will grant defendant's motion and disqualify the plaintiff's counsel, and the firm in which he practices, from further participation in this litigation.
Certain facts are undisputed. Defendant Delmar Marketing, Inc. ("Delmar") is owned by Simon Macauley, who is also its managing director. In 1991, Macauley began working for Bluebeard's Castle, Inc. ("Bluebeard's") selling time-shares, pursuant to the time-share marketing contract which is the subject of this litigation. In or around October of 1991, Macauley had an altercation with an unrelated third party, Mr. Al Perkins. The following day, at the suggestion of plaintiff's manager, John Cavanaugh, Macauley met with Attorney Richard Farrelly, one of plaintiff's attorneys at the firm of Birch, de Jongh, Hindels & Hall, Bluebeard's counsel in this litigation. While this consultation did not directly involve the contract, Macauley did seek and obtain advice regarding possible legal action against Perkins. As a result of the consultation, Macauley decided not to pursue the matter.
The defendant's motion presents very close and difficult questions concerning the responsibility of counsel to avoid affirmatively both the appearance and occurrence of conflict when representing interests adverse to a former client. Compounding the difficulty of these issues is the fact that disqualification of counsel represents an extreme remedy in any litigation. In light of all the circumstances of this case, however, the Court has determined that disqualification of plaintiff's attorney is appropriate for the following reasons.
Model Rule 1.9(a) of the ABA Model Rules of Professional Conduct, as judicially *1207 adopted in this jurisdiction, V.I. Bar Association v. Boyd-Richards, 765 F.Supp. 263, 26 V.I. 299 (D.V.I.1991),[1] addresses the question of attorney disqualification specifically:
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 a former client unless the former client consents after consultation. (emphasis added).
Courts which have interpreted this rule generally focus inquiry on the question whether a "substantial relationship" exists between the earlier and later representations.[2] The courts of the Virgin Islands have followed the decisions of the Third Circuit, most of which are grounded in the older Code of Professional Responsibility, to attach certain presumptions to the analysis of potential attorney disqualification under Model Rule 1.9. The Territorial Court has noted that the substantial relationship test "presumes that confidences were disclosed during the previous relationship and that such confidences would be used against the former client ... [and] does not require that the moving party be able to show that confidences actually were passed or to detail their contents." Lynch v. Lampkin, 27 V.I.R. 152, 155 (1992) (citing American Roller Co. v. Budinger, 513 F.2d 982 (3d Cir.1975) and Richardson v. Hamilton International Corp., 469 F.2d 1382 (3d Cir.1972), cert. denied 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973)). This approach, which obviates certain factual showings by the movant, emphasizes the essentially prophylactic aims of Model Rule 1.9. While some other jurisdictions require additional showing by the movant,[3] the courts of the Virgin Islands avoid the difficulty of weighing alternative descriptions of past confidential consultations by assuming "that confidential information has passed between the attorney and the former client, notwithstanding the attorney's declaration to the contrary." McNamara v. Boehm, Civ No. 141/92 (Terr.Ct.V.I. July 8, 1992).
Applying Model Rule 1.9., the Court must first examine whether an attorney-client relationship arose between Attorney Farrelly and Mr. Macauley. If such a relationship existed, the Court must then examine whether a substantial relationship exists between that representation and the present litigation.[4] Not surprisingly, the parties disagree in both respects.
Mr. Macauley states by way of affidavit that he sought and obtained advice from Attorney Farrelly regarding whether he should sue Mr. Perkins. Delmar claims that this consultation established an attorney-client relationship between Macauley and Farrelly. Both parties agree that Mr. Cavanaugh recommended that Macauley consult Farrelly, yet they disagree about Cavanaugh's intentions. Plaintiff claims that the consultation was initiated at Mr. Cavanaugh's direction for the purpose of investigating an "altercation that might adversely impact Bluebeard's if Mr. Macauley was a Bluebeard's employee or agent and was acting within the course and scope of his employment." (Pl.'s Resp., at 2). Cavanaugh's deposition testimony, however, directly undermines the plaintiff's position:
*1208 Simon came to work the next morning and ... [h]e said he wanted to sue the guy.... And I sent him down to our law firm to see if he wanted to do anything.... (Def.'s Br. in Support of Motion for Disqualification, Ex. D, at 3).
The affidavit and deposition testimony irrefutably demonstrates that both Macauley and Cavanaugh understood in 1991 that Macauley would consult with Farrelly for the sole purpose of deciding what legal actions, if any, to pursue against Perkins. Nonetheless, plaintiff asserts that no attorney-client relationship arose between Mr. Macauley and Attorney Farrelly because "[a]t no point during the meeting did Mr. Macauley ever asked [sic] Mr. Farrelly to serve as his counsel, nor did Mr. Farrelly ever offer to serve as Mr. Macauley's counsel." (Pl.'s Resp., at 2).
Plaintiff's characterization of the consultation not only lacks credibility but also betrays a serious misunderstanding of the standards of ethical and professional behavior adopted in this jurisdiction as reflected in the Model Rules of Professional Responsibility. Most people who consult lawyers have never studied the intricate ethical concerns of professional advocacy; rather, they rightly expect the attorneys they consult to look out for their interests. Thus, it is up to counsel to remain conscious of the obligation to preserve confidences and maintain loyalty. When a potential conflict arises, threatening the strict requirements of confidentiality and loyalty, counsel must avert the conflict by, at the very least, informing the person seeking help or, more definitively, by refusing the representation. Plaintiff's insinuation that the duty to probe for possible conflicts somehow remains with the prospective client has no precedent in law or legal literature.[5]
Faced with a choice between the parties' diverse accounts of the purpose of the consultation, the Court finds Macauley's version more credible. Were plaintiff's story true, Cavanaugh himself would likely have consulted first with Farrelly instead of sending the very person whose actions might adversely affect Bluebeard's. Furthermore, plaintiff's position exposes a disturbing attitude towards the role and responsibilities of the advocate. Attorney Farrelly had a clear duty to fully inform Mr. Macauley, at the outset of the consultation, that he viewed himself as an attorney for Bluebeard's and that any information revealed by Mr. Macauley would not necessarily be kept confidential.[6] There is no evidence that Attorney Farrelly made any such warning. The Court finds that an attorney-client relationship was established, however briefly, between Mr. Macauley and Attorney Farrelly, based upon the avowed purpose and result of the 1991 consultation, Mr. Macauley's reasonable subjective impressions, and Attorney Farrelly's failure to disabuse Mr. Macauley of his expectations of loyalty.
Plaintiff also argues that Delmar and its principal, Mr. Macauley, are not the same "client" for the purpose of disqualification analysis. Mr. Macauley's personal consultation with Mr. Farrelly, plaintiff asserts, has no relevance to Delmar's corporate litigation against a client represented by Mr. Farrelly. In the context of this case, plaintiff's argument has no merit. Not only is Macauley the managing director and owner of Delmar, but he is also the individual primarily responsible for performance under the contract between Delmar and plaintiff. Furthermore, in a complaint signed by Attorney Farrelly, Bluebeard's cited various personal actions of Macauley as evidence of defendant's breach of the parties' contract. From the outset of this case, plaintiff has acknowledged and relied on the virtual identity of Macauley and Delmar for the purposes of the litigation of its contract dispute. As a practical matter, plaintiff's present attempt to draw such fine distinctions neither accounts for the virtual *1209 identity of Macauley's and Delmar's interests nor comports with the prophylactic aims of Model Rule 1.9.[7] Thus, the Court finds that, for the purposes of this motion to disqualify, Mr. Macauley and Delmar are the same client.
Having found that an attorney-client relationship existed, the Court turns to the question of the substantial relationship between the 1991 consultation and the present litigation. In determining the existence of a substantial relationship, the Court will examine: (1) the nature and scope of the earlier representation; (2) the nature of the present lawsuit; and (3) the possibility that the client might have disclosed confidences during the earlier representation which could be relevant and detrimental to the present action. See, Reading Anthracite, supra at 115.[8]
Though the nature of the earlier representation and the present lawsuit bear little or no facial resemblance, plaintiff has, perhaps unwittingly, brought the two circumstances together. Paragraph 18 of the plaintiff's complaint alleges that Mr. Macauley "physically assault[ed] a sales manager." In its response to defendant's interrogatories, the plaintiff clarified that paragraph 18 referred to the incident which prompted Mr. Macauley's 1991 consultation with Attorney Farrelly, the scuffle with Mr. Perkins. Plaintiff's subsequent attempts to repudiate the accuracy of the interrogatory response, after the instant motion was filed, appear disingenuous.[9] It is abundantly clear to this Court that plaintiff originally intended to employ the altercation between Mr. Macauley and Mr. Perkins as an element in its claim for breach of contract. That such an altercation, in point of fact, could have little relevance to the outcome of a breach of contract suit does not change the fact that Attorney Farrelly thought it somehow relevant and incorporated it as a substantial part of plaintiff's complaint. Though the relationship between the earlier representation is not strikingly "substantial," the plaintiff has made it so by its own unequivocal invocation.
Furthermore, the scope of the prior representation could, as defendant argues, have reasonably encompassed Mr. Macauley revealing to Mr. Farrelly a host of information regarding, for instance:
Macauley's personal background, his citizenship and visa status, the details of his company's organization and status, its relationships and contractual arrangements with Bluebeard's and other entities, the prospective value of the contract, and matters that might possibly work to Macauley's detriment in a case in a local Virgin Islands court. (Defendant's Brief, at 2).
As noted above, it is not this Court's task to determine whether such confidences were in fact revealed, rather, in determining the substantial relationship between representations, the Court must only assess the possibility that such confidences were exchanged and the relevance and detriment that such confidences might carry in the present litigation. The Court finds that the aforementioned information might indeed have been revealed to Attorney Farrelly in 1991 and that such information might have placed defendant at a disadvantage in the present litigation. The defendant need not detail the unspecified "matters that might possibly work to Macauley's detriment in a case in a local Virgin Islands court." Id. It is sufficient that the *1210 Court finds it possible that such detrimental matters were discussed.[10]
On November 3, 1994, plaintiff cited the following alleged facts in its motion for summary judgment with respect to defendant's counterclaims:
"[defendant] is not entitled to prosecute and maintain a counterclaim ... where it has: (1) Failed to register to do business in the Virgin Islands; (2) Failed to obtain a real estate license for itself ... (3) Failed to pay gross receipts taxes on 1991 and 1992 Virgin Islands source income; (4) Failed to pay income taxes on 1991 and 1992 Virgin Islands source income; (5) Failed to get a business license to do business in the Virgin Islands in 1991 and 1992; and (6) Failed to withhold or pay payroll taxes in 1991 and 1992, such as workmen's compensation, unemployment compensation, social security, and FUTA for its employees.
Even if some of the information alleged above emerged from Attorney Farrelly's 1991 consultation with Mr. Macauley, all such facts would likely be discovered in the normal course of competent representation. As defendant has made no other assertions of actual prejudice which may have accrued from the adverse representation, the Court can discern no reason to grant any of the remedies, beyond disqualification of plaintiff's counsel, requested by the defendant.
At the hearing, plaintiff offered a "laches" argument to the effect that the defendant had waived its right to object to adverse representation by not filing the instant motion immediately after receiving the plaintiff's complaint. Defendant explained that it did not discover the grounds for disqualification until plaintiff provided the answer to the defendant's interrogatory which explicitly identified Mr. Perkins as the person Macauley had allegedly assaulted. While the defendant's explanation tends to undermine its own claim that the earlier representation is significantly relevant to the present lawsuit, the Court finds it reasonable that a layperson such as Macauley would not immediately grasp the potential significance of the 1991 consultation. The Court will not foreclose a defendant's opportunity to raise an objection to adverse representation unless it comes so late in the course of the litigation that plaintiff would be prejudiced by disqualification. The Court finds that disqualification in this instance, some three months before a scheduled trial, does not unreasonably burden the plaintiff.
By comparison to the disqualification cases cited above, the facts of this case seem pedestrian. However, any doubts that the Court may have about the appropriateness of disqualification should be resolved in favor of the movant in order to preserve the confidences of the former client. INA Underwriters Ins. v. Nalibotsky, 594 F.Supp. 1199, 1207 (E.D.Pa.1984). Moreover, reflection upon the prophylactic purposes of the Model Rules dispels any inconsistency which may appear in the Court's disqualification of plaintiff's counsel where actual prejudice to defendant's interests may not be readily apparent:
A rule against representation of interests adverse to a former client in the same or substantially related litigation has several purposes. It is a prophylactic rule to prevent even the potential that a former client's confidences and secrets may be used against him. Without such a rule, clients may be reluctant to confide completely in their attorneys. Second, the rule is important for the maintenance of public confidence in the integrity of the bar. Finally, and importantly, a client has a right to expect loyalty of his attorney in the matter for which he is retained.
In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 162 (3d Cir.1984), cert. denied, Cochrane & Bresnahan v. Plaintiff Class Representatives, 472 U.S. 1008, 105 S.Ct. 2702, 86 L.Ed.2d 718 (1985).
*1211 Model Rule 1.10(a) clearly disfavors the notion that a firm may continue to represent a client when one of its attorneys has been prohibited from doing so:
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9 or 2.2.
This Court also concludes that the prophylactic force of the Model Rules would be substantially diminished if it were to allow Attorney Farrelly's firm to continue to represent the plaintiff in this matter. Accordingly, the disqualification shall extend to the firm, Birch, de Jongh, Hindels & Hall, as well.
Plaintiff cannot cry foul when it cites in its own complaint an event, in relation to which plaintiff's attorney had served as defendant's counsel, as evidence of breach of a seemingly unrelated contractual matter. The Court will grant the defendant's motion to disqualify. An appropriate order follows.
MEMORANDUM ON MOTION TO RECONSIDER
This matter is before the Court on plaintiff's motion to reconsider its Order of February 7, 1995 which disqualified the plaintiff's counsel, the firm of Birch, de-Jongh, Hindels, & Hall, from further representation of the plaintiff in the course of this litigation. Since plaintiff's arguments merely rehash those proffered in its opposition to defendant's original motion to disqualify, the Court will deny the plaintiff's motion to reconsider. Resolution Trust Corp. v. Holmes, 846 F.Supp. 1310 (S.D.Tex.1994) ("neither Rule 59 nor a Rule 60 motion provides the proper vehicle for rehashing old arguments"). However, because plaintiff appears still to misapprehend why its counsel's actions merit sanctions, and because of the importance of this issue to the bar in general, the Court reiterates and expands upon some of the rationales for its original decision.
Assuming that this District Court Judge is bound by the decision of another coequal District Judge, plaintiff argues that the Court's disqualification Order does not comport with the principles of law set out in Brice v. Hess Oil Virgin Islands Corp., 769 F.Supp. 193 (D.V.I.1990) (Brotman, J.).[1] Not only is Brice factually inapposite, but that case merely applies the same "substantial relationship" analysis used in this case. The Court in Brice did note, however, that a balancing test has been employed, after and in addition to the substantial relationship analysis, in determining the appropriateness of the disqualification of an attorney in cases where relevant countervailing considerations exist. One party's request for disqualification is balanced against the opposing litigant's interest in retaining its chosen counsel who has familiarity with the factual and legal issues involved and its interest in avoiding the time and expense required to familiarize a new attorney with the matter. Id. at 195.
In the case at bar, the Court expressly balanced these two factors against disqualification and found them insufficient to outweigh Mr. Macauley's interest in the continued loyalty of counsel and other prophylactic justifications for enforcing the applicable disciplinary rule.[2] Although we did not explicitly state that we had balanced the third factor mentioned in Brice, namely, "the policy that attorneys be free to practice without excessive restrictions," the Court's lengthy discussion of counsel's duties to avoid conflicts at the outset of any consultation makes it clear that this factor was also considered and found insufficient. A requirement that attorneys warn clients of any and all conflicting loyalties cannot be said to hamper or excessively restrict the practice of law. In fact, such a duty lies at the core of professional responsibility.
In short, our Order in this case is completely consistent with the law as set out in Brice. In that case, the judge concluded that the attorney in question could not have acquired *1212 "any substantive confidences or secrets of [its former client] relating to this action." Brice at 197 (emphasis added). By contrast, we have determined here that it was indeed possible, if not likely, that relevant, detrimental confidences had been revealed during the 1991 consultation. The Court in Brice essentially found that no substantial relationship existed between the attorney's prior representation of the opposing party in similar, but unrelated actions, and the case then before the Court. Here, we found that a substantial relationship does in fact exist. Moreover, we have determined that the precedents which presume that confidential information has been passed between client and counsel during prior representation more perfectly reflect the dictates of Model Rule 1.9.
Claiming that Farrelly could not have perceived a conflict when Macauley, allegedly, could not identify the person with whom he scuffled, the plaintiff misses the point of the Court's analysis. The Order does not concern any conflict based upon Attorney Farrelly's friendship with Al Perkins. The disqualification Order addresses a conflict, which began with the potential divergence of interests between Mr. Macauley and Bluebeard's when Macauley sought Farrelly's advice in 1991 and culminated in Farrelly's representation of Bluebeard's in the present lawsuit against Macauley and Delmar. The affidavit and deposition testimony of Mr. Macauley, Mr. Cavanaugh (the plaintiff's manager), and Mr. Jones (a former employee of the plaintiff) incontrovertibly establishes that Cavanaugh arranged a meeting between Farrelly and Macauley for the sole purpose of deciding whether Macauley should initiate a personal injury lawsuit against a person whom he claimed had assaulted him. (See, Decl. of J.D. Jones, Def.'s Br., Ex. B, ¶ 4; Dep. of J. Cavanaugh, p 3; Decl. of S. Macauley, Def.'s Br., Ex. A, ¶ 10).
Although Attorney Farrelly may have thought at the outset of the 1991 consultation that it involved Macauley's work for Bluebeard's,[3] counsel soon learned that the altercation took place at night in a nightclub/restaurant. Mr. Farrelly then concluded from this that "the altercation had nothing to do with my client, Bluebeard's Castle." (Farrelly 10/31/94 Aff. ¶ 5). While the altercation itself may have had nothing to do with Bluebeard's, Macauley's intent to sue over it did involve the plaintiff. Mr. Farrelly's failure to appreciate the limitation his responsibilities to Bluebeard's imposed upon his ability to give unbiased legal advice to Macauley laid the groundwork for the conflict of interest addressed by our Order.[4] Mr. Farrelly is charged with having known that his loyalty to Bluebeard's would likely cause him to try to dissuade Macauley from taking any action that might adversely affect Bluebeard's. Before undertaking to give any advice, Attorney Farrelly was required to obtain Mr. Macauley's consent after explaining how his representation of Bluebeard's might affect the advice he would give Macauley.[5] The Court has determined that, since Farrelly did, in fact, give legal to Macauley during the 1991 consultation, he assumed the role of Macauley's counsellor.[6] The circumstances of the 1991 consultation required an express admonition and explanation of the nature of Farrelly's preexisting, conflicting loyalty to Bluebeard's.
*1213 Three other aspects of the plaintiff's motion papers require comment. First, plaintiff's observation that "Mr. Perkins is a personal friend of Attorney Farrelly's"[7] undermines the credibility of its continued claim that including the scuffle with Mr. Perkins as evidence in this case of the breach of the parties' contract was the result of "mistake" in preparing its interrogatory responses. It is highly unlikely that an attorney would "inadvertently" entangle a personal friend in litigation between two wholly unrelated parties. Moreover, defendant attached to its original opposition papers the affidavit of Mr. Ryan "Robb" Robinson, who plaintiff now claims should have been named in its interrogatory responses, in which Mr. Robinson denies that any assault or altercation has ever occurred between himself and Macauley. (Robinson Aff. ¶ 20). Finally, whether defendant knew that Mr. Perkins was not the proper party referenced in the complaint, as plaintiff contends, is completely irrelevant to the disqualification analysis.
Second, plaintiff's counsel would have the Court draw a firm conclusion from his want of recollection: "The fact that I do not recollect the necessity to warn Mr. Macauley is indicative to me that the need to do so never arose." (Farrelly 2/24/95 Aff. ¶ 3).[8] In and of itself, Attorney Farrelly's failure to recollect a need to inform Macauley of his loyalties is simply not probative that no such need arose.[9]
Third, there is no basis for plaintiff's contention that information relevant to the present litigation could not have come up during the 1991 consultation. Of necessary concern to a prospective litigant are any areas of potential embarrassment or vulnerability, particularly where, as in the case of a physical altercation at a nightclub, one bringing suit may expect to be met with counterclaims for battery and damages. It is more logical than not that Macauley would have touched on one or more of the following topics: his personal background, his legal status in the United States, his payment of taxes, and the organization of his business, including its assets, liabilities, and licensing status. The difficulty of assessing exactly what subjects may or may not have been broached only confirms the advisability of the prophylactic application of the Model Rules.
In closing, the Court reiterates that an attorney must give a prospective client a clear description of any possible limitations which might adversely affect his ability to represent that client whenever those limitations are or should be known. In this case, counsel was required to explain to Mr. Macauley that he could not even discuss the advisability of a suit over the altercation unless Mr. Macauley understood that Farrelly's primary loyalty lay with Bluebeard's and until Macauley consented to such representation.[10]
Attorney Farrelly's failure to adequately address his conflicting loyalties in 1991 lies on the periphery of the issue in this case, and should not be confused with the Court's essential rationale for disqualification, namely, the adverse use of information gleaned during the 1991 representation in the present lawsuit. Since Mr. Farrelly did not explain the potential conflict to Mr. Macauley in 1991, but instead offered him legal advice, an attorney client relationship arose between them. Counsel's use of the very subject matter of the 1991 consultation, and perhaps other information disclosed during that consultation, on behalf of an adverse party in a subsequent lawsuit is not condoned by the Model Rules of Professional Conduct.
A motion for reconsideration serves to "correct manifest errors of law or fact or to present newly discovered evidence." Harsco v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). Plaintiff has neither demonstrated any errors of law nor presented *1214 any newly discovered evidence. Accordingly, plaintiff's motion will be denied. An order to that effect is attached.
NOTES
[1] The Boyd-Richards decision was rendered on May 28, 1991. Though neither party has alleged an exact date of the 1991 consultation between Macauley and Farrelly, the consultation apparently took place at least four months after the judicial adoption of the ABA Model Rules.
[2] See, Kaselaan & D'Angelo v. D'Angelo, 144 F.R.D. 235 (D.N.J.1992); Reading Anthracite Co. v. Lehigh Coal & Navigation Co., 771 F.Supp. 113 (E.D.Pa.1991); Webb v. E.I. Du Pont de Nemours & Co., 811 F.Supp. 158 (D.Del.1992); Prisco v. Westgate Entertainment, Inc., 799 F.Supp. 266 (D.Conn.1992).
[3] See, e.g., Harris v. Agrivest Ltd. Partnership II, 818 F.Supp. 1035 (E.D.Mich.1993) (three part test including a showing of prior representation, substantial relation, and actual acquisition of confidential information); Complaint of Maritima Aragua, S.A., 847 F.Supp 1177 (S.D.N.Y. 1994) (three part test including prior representation, substantial relationship, and access to relevant privileged information).
[4] As a preliminary matter, the Court must also determine whether Mr. Macauley's and Delmar's interests are sufficiently identical to warrant application of the Model Rules' prohibition of adverse representation.
[5] See, generally, Pl.'s Resp. at 2-3 ("Had Mr. Macauley ever ask [sic] Mr. Farrelly to serve as his counsel ... Mr. Farrelly would have reminded him ... that Mr. Farrelly was counsel to Bluebeard's....").
[6] Plaintiff's attorney should compare the MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7(b), comments 1, 4, 5, and Rule 1.4(b) with his own characterization of the consultation. ("Mr. Farrelly understood that he was seeing Mr. Macauley on behalf of Bluebeard's and not on Mr. Macauley's behalf." (Pl.'s Resp., at 3)). The Rules clearly show that it matters little what Mr. Farrelly "understood" if he did not explicitly share that understanding with Mr. Macauley.
[7] Model Rule 1.9 refers specifically to the adversity of the parties' "interests" rather than the adversity of named parties.
[8] Although the "substantial relationship" analysis suggested in Reading Anthracite, supra, might appear to conflict with the presumption of confidential disclosures in this jurisdiction, some showing of possible relevance and detriment should be required to avoid disqualification in situations where relevant confidences obviously could not have been disclosed. This Court will not inquire whether relevant and detrimental confidences were in fact disclosed, but will instead make a basic determination whether such disclosures possibly occurred.
[9] The interrogatory response which Attorney Farrelly claims he "inadvertently answered incorrectly" is not the only evidence that plaintiff sought to incorporate the 1991 altercation into its cause of action. The answer to Defendant's Interrogatory Number 1 also identifies the person with whom Mr. Macauley scuffled, Mr. Perkins, as a person having knowledge of the facts described in the complaint.
[10] The Court is not blindly crediting the defendant's "boilerplate" assertion that relevant, detrimental confidences were exchanged; rather, it has determined that the defendant's account appears reasonably possible in light of the context of the 1991 consultation.
[1] While the ruling of a judge of this Court deserves a great deal of respect, especially when made by such a distinguished jurist, it is nonetheless only persuasive to another judge of the same court.
[2] "The district 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." Brice v. Hess Oil Virgin Islands Corp., 769 F.Supp. 193, 195 (citing U.S. v. Miller, 624 F.2d 1198, 1201 (3d. Cir.1980).
[3] Farrelly states that he considered the 1991 consultation an investigation into an "altercation that might adversely impact Bluebeard's Castle Hotel if [Mr. Macauley] was a Bluebeard's employee or agent ... acting within the course and scope of his employment." (Farrelly 10/31/94 Aff. ¶ 3).
[4] See, Model Rule 1.7(b) which reads, in part:
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, ... unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation.
Rule 1.4(b) reads:
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
[5] For instance, Mr. Farrelly might have explained that his advice would be influenced by Bluebeard's preference to avoid publicity over a lawsuit involving a manager of its timeshare sales program who participated in a brawl at a nightclub.
[6] Attorney Farrelly concedes that Macauley's claim that Farrelly advised Macauley not to file suit "is certainly consistent" with Farrelly's recollection of their consultation. (Farrelly 10/31/94 Aff. ¶ 8).
[7] Farrelly 10/31/94 Aff. ¶ 11.
[8] Mr. Farrelly has previously conceded that he took no notes and has little, if any, recollection of the 1991 consultation with Mr. Macauley. (Farrelly 10/31/94 Aff. ¶ 8). The contradictory inferences which the affiant seeks to draw from his lack of memory further support the Court's earlier conclusion regarding the credibility of the parties' respective accounts of the 1991 consultation.
[9] Similarly, counsel's assertion that the consultation with Macauley "was a brief, casual contact in which minimal information was exchanged" is also based solely upon Mr. Farrelly's foggy memory. (Pl's Mot. for Recon. at 1).
[10] See, Model Rule 1.7(b).