Sierra Vista Hospital, Inc. v. United States, 488-78 and 466-79C.
Decision Date | 14 January 1981 |
Docket Number | No. 488-78 and 466-79C.,488-78 and 466-79C. |
Citation | 639 F.2d 749 |
Parties | SIERRA VISTA HOSPITAL, INC. et al., v. The UNITED STATES. |
Court | U.S. Claims Court |
Robert A. Klein, Washington, D. C., attorney of record for plaintiff. Weissburg & Aronson, Inc., Washington, D. C., of counsel.
Sandra P. Spooner, Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant.
Before FRIEDMAN, Chief Judge, KUNZIG and BENNETT, Judges.
Trial Judge C. Murray Bernhardt has certified for interlocutory review, pursuant to Rule 53(c)(2)(i), his order of September 23, 1980, refusing to disqualify the law firm that represents plaintiff in these consolidated cases, and the government has requested such review. The government sought disqualification because three former government lawyers who allegedly had various connections with the case during their government service joined the law firm while the case was pending. Upon consideration of the briefs, without oral argument, we conclude that the trial judge properly refused to disqualify the firm. We therefore grant the request for interlocutory review and affirm the trial judge's order.
A. In these cases the plaintiff challenges the government's denial of reimbursement under the Medicare program for California franchise taxes. The cases began with a suit the plaintiff filed in the United States District Court for the Northern District of California against the Secretary of Health, Education, and Welfare (HEW) in November 1973. The law firm of Weissburg and Aronson, Inc., located in Los Angeles, California, has represented the plaintiff in this litigation from the beginning.
Both parties moved for summary judgment in the district court, which granted the defendant's and denied the plaintiff's motion and dismissed the case. On appeal, however, the Court of Appeals for the Ninth Circuit in April 1979 remanded the case to the district court with directions to transfer it to this court. Sierra-Vista Hospital, Inc. v. Califano, 597 F.2d 200. That transfer case (No. 466-79C) has been consolidated with another case (No. 488-78) which the plaintiff filed in this court in 1978, apparently as a protective measure.
B. Sometime in the late spring or summer of 1979, Weissburg and Aronson opened a Washington office. The staff of that office consisted of three former government lawyers who, according to the government, had had various connections with these cases while working for the government. The facts relating to these lawyers' connections with the cases, as shown by the record before us (which consists largely of uncontradicted affidavits), are as follows:
1. James Pyles became associated with Weissburg and Aronson on August 1, 1979. Prior to that time he had been a lawyer with the Office of the General Counsel of HEW. Another lawyer in that office originally had handled the Sierra Vista case in the district court and had prepared the government's opening brief in the court of appeals. That lawyer left the General Counsel's office before oral argument was scheduled in the court of appeals.
Pyles prepared the government's reply brief in the court of appeals, which discussed only the jurisdiction of the district court over Medicare cases of this type. The United States Attorney's Office had "primary responsibility for handling the case on appeal," and Pyles' participation was limited to the jurisdictional issue and he had "absolutely no involvement in the development or presentation of the government's defense on the merits." Pyles appeared as "of counsel" on the government's reply brief, which the United States Attorney and an Assistant United States Attorney signed; Pyles also signed a motion for permission to exceed the normal page limit for reply briefs, and a supporting affidavit. Pyles sent the brief and motion to the United States Attorney's Office before August 8, 1977, and the brief and motion were submitted to the court on August 22, 1977. The Assistant United States Attorney in charge of the case "had a number of telephone conversations after that time concerning the various Medicare cases that were being decided" with Pyles, although the record does not show whether any of them related to these cases.
2. Galen Powers became a member of Weissburg and Aronson on or about June 16, 1979. When Pyles joined the firm several weeks later, Powers became his supervisor. "At no time," however, had Powers "ever discussed any aspect of this case with Mr. Pyles, nor has Mr. Pyles had access to any of the records, files or documents concerning this litigation."
3. Arlene Fine became associated with Weissburg and Aronson on June 11, 1979, and left the firm on July 11, 1980. She worked in the Washington office except between November 26, 1979 and February 27, 1980, when she worked in the Los Angeles office. While with the firm she worked on these cases. That work
Prior to joining the firm, Ms. Fine worked in the Civil Division of the Department of Justice. The files of the Department show that the case had been assigned to her but that within two weeks after the petition was filed in this court, the case was reassigned to another lawyer. She did not enter an appearance as counsel of record.
Ms. Fine stated that "to my knowledge and the best of my recollection, I never reviewed any files, conducted any research, generated any correspondence, or communicated with agency staff or opposing counsel concerning this matter, or performed any other work concerning the Sierra Vista case during my tenure with the Department of Justice." She further stated that during her association with Weissburg and Aronson she "never discussed the substance of the Sierra Vista case with either James C. Pyles or Galen D. Powers," or "showed Mr. Pyles any documents relating to this case." Her "conversations with both Mr. Pyles and Mr. Powers concerning Sierra Vista were limited exclusively to the matter of ascertaining their prior involvements, if any, with the case while they were employed as attorneys with the Department of Health, Education and Welfare."
Although the cases originally had been handled out of the firm's Los Angeles office, the cases were transferred to the Washington office.
The government contends that disqualification of Weissburg and Aronson is required by Disciplinary Rules 9-101(B) and 5-105(D) of the American Bar Association. The former states that a lawyer "shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." The latter states that "if a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment." Disciplinary Rule 9-101(B) is set forth after Canon 9 of the Canons of Professional Ethics, which states that "A Lawyer Should Avoid Even the Appearance of Professional Impropriety."
The government argues that Pyles'...
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