Opinion
Civil Action No. 01-1913, C/W 01-2052, Section "R"(1)
November 14, 2001
ORDER AND REASONS
The matter before the Court is defendant's motion to disqualify counsel for plaintiff Larry Hampton and the firm of Lewis, Kullman Sterbcow on the grounds of conflict of interest. For the reasons set forth below, the motion is DENIED.
I. Background
This case arises out of Larry Hampton's suit against Daybrook Fisheries, Inc., for injuries he allegedly sustained while working aboard the M/V FRANCES T. CARINHAS. Daybrook moves to disqualify plaintiff's counsel because the firm that represents plaintiff, Lewis, Kullman Sterbcow, has a partner, David Abramson, who as an associate at Phelps Dunbar, represented Daybrook from 1992-1995 in various Jones Act personal injury cases. Defendant submits an affidavit from Jim Hill, a human resources employee, asserting that Abramson was privy to — confidential information regarding Daybrook's financial status, claims evaluation procedures and trial strategies. (Def.'s Mot. to Disqualify, Ex. A, Aff. Hill.) The affidavit neither details the extent of Abramson's involvement in those cases, nor does it describe the specific nature of those cases. ( Id.) Plaintiff submits an affidavit from Abramson in which he testifies that he only performed routine tasks as an associate on the Daybrook cases and that the last time he represented Daybrook was six years ago, when Daybrook ended its relationship with Phelps Dunbar. (Pl.'s Mot. Opp'n. Disqualification, Ex. 1, Aff. Abramson.)
II. Discussion
The Fifth Circuit has made clear that "[m]otions to disqualify are substantive motions affecting the rights of the parties and are determined by applying standards developed under federal law." In re American Airlines, Inc. 972 F.2d 605, 610 (5th Cir. 1992) (citing In re Dresser Indus., 972 F.2d 540, 543 (5th Cir. 1992)). Although federal courts may adopt state or ABA rules as their ethical standards, whether and how these rules apply are questions of federal law. Id.
The United States District Court for the Eastern District of Louisiana has adopted the Rules of Professional Conduct adopted by the Supreme Court of Louisiana for its Rules of Disciplinary Enforcement. LR 83.2.10E. The following Rules of Professional Conduct are relevant to this motion:
Rule 1.9(a): A lawyer who has formerly represented a client in a matter shall not thereafter [r]epresent 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 consents after consultation.
Rule 1.10(a): 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 Rules 1.7, 1.8(c), 1.9, or 2.2.
Rule 1.10(b): When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.
Although the local rules are the most immediate source of guidance for deciding a motion to disqualify, national ethical rules are also relevant to this Court's determination. See FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1312 (5th Cir. 1995). Canon 9 of the ABA Code proscribes that "(a) lawyer avoid even the appearance of impropriety." This Court should also take into account the standards of the profession, the public interest, and the litigants' rights. See In re Dresser, 972 F.2d at 543. The Fifth Circuit has considered the following factors in the disqualification analysis: whether the conflict has (1) the appearance of impropriety in general; or (2)a possibility that a specific impropriety will occur; or (3) the likelihood of public suspicion from the impropriety outweighs any social interest that will be served by the lawyer's continued participation in the case. See id. at 544; see also United States Fire Ins., 50 F.3d at 1314.
In the Fifth Circuit, disqualifications based on prior representation are governed by the "substantial relationship" test:
A party seeking to disqualify opposing counsel on the ground of a former representation must establish two elements: (1) an actual attorney-client relationship between the moving party and the attorney he seeks to disqualify and (2) a substantial relationship between the subject matter of the former and present representations.American Airlines, 972 F.2d at 614 (citing Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1569 (5th Cir. 1989). The test is "categorical in requiring disqualification once a substantial relationship between past and current representations is established." Id. There are two underlying concerns of the substantial relationship test: "the duty to preserve confidences and the duty of loyalty to a former client." Id. at 618.
Two irrebuttable presumptions apply under the substantial relationship test in this circuit: First, once it is established that the prior matters are substantially related to the present case, "the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation." Id. at 614 (citing Duncan v. Merrill Lynch, 646 F.2d 1020, 1028 (5th Cir. 1981)). Second, there is an irrebuttable presumption that "confidences obtained by an individual lawyer will be shared with the other members of his firm." Id. at 614, n. 1. See also In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1346 (5th Cir. 1981) ("[K]nowledge is imputed to partners of the lawyer disqualified. . . .").
These presumptions are reflected in Rules 1.10(a) and (b) of the Rules of Professional Conduct adopted by this Court. Rule 1.10 provides the general rule for imputed disqualification, i.e., when an entire law firm is disqualified due to a single attorney's former representations. The Rules presume that confidences obtained by an individual lawyer are shared with members of his or her firm. The Fifth Circuit has never recognized the possibility of a "Chinese Wall" to rebut this presumption. Further, disqualification may occur despite evidence that confidences have not — and are not likely to be — breached. See, e.g., Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168, 172 (5th Cir. 1979) (disqualifying former counsel even though there was no chance that confidential information might be used against former client); see also Fortner v. International Diving Consulting Servs., Civ. A. No. 95-1035, 1996 WL 50807, at *3 (E.D. La. 1996).
In this case, only one element of the substantial relationship test has been met. It is undisputed that Abramson had an attorney-client relationship with Daybrook Fisheries; as an associate at Phelps Dunbar, he represented Daybrook in approximately twenty maritime personal injury cases. (Pl.'s Mot. Opp'n Disqualification, Ex. 1, Aff. Abramson.) Defendant, however, has not met its burden of showing that a "substantial relationship" exists between the subject matter of the former and present representations.
Daybrook gives no specifics on the subject matter and issues involved in any of Abramson's cases so that the Court can determine if the substantial relationship test has been met. Daybrook has pointed to only a superficial resemblance between the present and prior representations and has made no showing that the parties or issues in the cases are substantially related. It is undisputed that the subject matter of the previous suits is in no way connected to the subject matter of the current suit. Defendant argues that the test is met simply because Abramson defended Daybrook in personal injury lawsuits filed by Menhaden fishermen six years ago, and this case involves a personal injury claim by a Menhaden fisherman. Daybrook asserts in a general way that Abramson was privy to information regarding Daybrook's financial status, defense strategies, claims evaluation procedures and settlement goals in these types of personal injury suits that he now could use against Daybrook in this litigation. (Def.'s Mot. to Disqualify, Ex. A, Aff. Hill.) It submits an affidavit that is factually inaccurate and otherwise so conclusory to be of little value on the substantial relationship issue. The affiant asserts, for example, that Abramson represented Daybrook from 1988 to 1992 when Abramson was not even admitted to the bar until 1992. The Fifth Circuit requires much more than superficial similarities to satisfy the "substantial relationship" test.
Indeed, the Fifth Circuit has stressed that a motion to disqualify is a fact-intensive inquiry. Duncan v. Merrill Lynch, 646 F.2d 1020, 1029 (5th Cir. 1981) ("In a disqualification case, the focus of the district court's inquiry should be on the precise nature of the relationship between the present and former representations.") In Duncan, a customer sued Merrill Lynch for securities fraud. Merrill Lynch sought to disqualify plaintiff's counsel on the basis that counsel previously represented Merrill Lynch in securities cases and was involved in "securities work, conferences with Merrill Lynch employees, and the preparation of various legal documents." Id. The Fifth Circuit found that these statements were not specific enough to allow the district court to determine whether a substantial relation exists. Id. Indeed, the Court stressed that "[o]nly when the moving party delineates with specificity the subject matters, issues, and causes of action presented in former representation can the district court determine if the substantial relationship test has been met." Id. Finding that Merrill Lynch presented the court with nothing more than a "superficial resemblance" between the past and present representation, the Fifth Circuit reversed the district court's disqualification of plaintiff's counsel. Id. Similarly, defendant's general assertion that Abramson's previous representation involved maritime personal injury work provides the Court with no opportunity to engage in the "painstaking analysis of the facts" required by the Fifth Circuit. Id. at 1029.
In addition, based on the facts before it, the Court does not find that counsel's representation violates Canon 9 of the ABA Code. The Court has already found that no actual impropriety exists here because there was no substantial relationship between the past and present representation. Further, no appearance of impropriety arises in this case because Abramson's representation of Daybrook occurred six years ago. The Court does not find that any appearance of impropriety would attach, any possibility of a specific impropriety will occur or that any likelihood of public suspicion would arise here by allowing Lewis and Sterbcow, and the firm of Lewis, Kullman Sterbcow to represent plaintiff, Larry Hampton.
II. Conclusion
Accordingly, the Court DENIES Daybrook's motion to disqualify the firm of Lewis, Kullman Sterbcow.