Borges v. Our Lady of Sea Corp.

• Decision Date: 07 March 1991
• Docket Number: No. 90-1686,90-1686
• Citation: 935 F.2d 436
• Parties: John BORGES, Plaintiff, Appellee, v. OUR LADY OF THE SEA CORP., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 436

935 F.2d 436

1991 A.M.C. 2937

John BORGES, Plaintiff, Appellee, v. OUR LADY OF THE SEA CORP., Defendant, Appellant.

No. 90-1686.

United States Court of Appeals First Circuit.

Heard March 7, 1991.

Decided June 10, 1991.

Thomas E. Clinton with whom Clinton & Muzyka, Boston, Mass., were on brief, for defendant, appellant.

Joseph M. Orlando with whom David C. Nunheimer and Orlando & Associates, Gloucester, Mass., were on brief, for plaintiff, appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

In this admiralty case defendant-appellant, Our Lady of the Sea Corp., appeals a jury verdict in favor of plaintiff-appellee John Borges. The appeal is somewhat unusual in that appellant does not attack head-on the finding of liability or assessment of damages. Four issues are presented to us: (1) whether plaintiff's counsel should have been disqualified; (2) whether a statement given by one of the witnesses should have been excluded; (3) whether the courtroom testimony of the same witness was properly stricken and further testimony by him properly excluded; and (4) whether the district court erred in its application of prejudgment interest.

DISQUALIFICATION

At the outset we reject plaintiff's rather far-fetched argument that this issue was not properly preserved for appeal. Defendant moved to disqualify plaintiff's counsel well in advance of trial, and the motion was denied. The matter was brought up again at trial and, after discussion, the court again refused to disqualify plaintiff's counsel. Defendant duly objected to the ruling and filed a timely appeal. Defendant did not lose his right to have us consider the question because it did not bring a post-trial motion asking for a new trial on the grounds that plaintiff's counsel should have been disqualified. This claim was made pretrial and at trial. Defendant's timely appeal preserved it as an appellate issue.

An understanding of the disqualification issue requires an explanation of the genesis of the case and plaintiff's theory of liability. The defendant corporation, Our Lady of the Sea Corp., was formed in 1979. Its purpose was to own and operate a commercial fishing vessel. At all relevant times there were three equal shareholders: the plaintiff, John Borges, and two brothers, John and Antonio Pata. All three worked on board the vessel for the defendant corporation. All three were originally from Portugal and spoke only broken English. They testified at trial through an interpreter. Borges had considerable experience as a commercial fisherman. The Pata brothers asked Borges in 1979 to become master of the corporation's fishing vessel which was built and delivered in 1979. They loaned him the money to become an equal shareholder with the other corporate shareholders.

On October 9, 1986, Borges was injured while he was overseeing the securing of a spare net to a rail on the upper deck. This required the use of a block and tackle attached to a winch. The wire cable that attached the winch to the block and tackle broke; the block fell and struck Borges on the head, severely injuring him. Borges alleged and proved to the jury's satisfaction that one of Antonio Pata's duties was With this as a prelude, we now get to the disqualification facts, which are somewhat complex. On May 22, 1986, a complaint alleging fuel contamination was filed by the defendant corporation in the United States District Court for Massachusetts against Rose's Oil Service. The attorney who drew up the complaint, Stephen Ouelette, was associated at the time with Joseph Orlando, plaintiff's counsel. The complaint in the instant case was filed by Attorney Orlando on October 22, 1986.

the maintenance of the cable and that his failure properly to carry out this duty resulted in its breaking. There was testimony to the following effect: A fishing boat has two captains, a fishing (or sea) captain and a "shore" captain. The "shore" captain is responsible for the proper care and repair of all the equipment on the vessel. The fishing (or sea) captain's responsibility is to get the ship to productive fishing grounds so that fish can be caught. Navigation and fishing are the sea captain's main concern. There was evidence from which the jury could find, as it did, that Antonio Pata was the "shore" captain of Our Lady of the Sea, that the cable that held the block broke because it was "rotten," due to lack of proper care by Antonio Pata.

Sometime after October 9, 1986, it is not clear exactly when, Borges retained Orlando to represent him. On October 20, all the members of the crew, according to Attorney Orlando, went to his office so he could discuss the facts of the accident with them. At that time Orlando obtained statements from the crew, including Antonio Pata. Pata's statement admitted that he was "shore" captain, that the cable attached to the block and tackle was rusting, and that he was responsible for its condition.

John Pata testified at trial that he and his brother had gone to Orlando's office that day to discuss the fuel contamination case with Attorney Ouelette. He said that as he and his brother were leaving, they saw the plaintiff and Orlando, that Orlando called them into the conference rooms where the other crew members were. According to John Pata, Orlando browbeat his brother Antonio into signing the statement, telling Antonio that Borges would not have a case unless he signed the statement. John Pata testified that the statement was not true. He further testified that later he and Antonio unsuccessfully tried to get Orlando to return the statement to them.

On or before February 14, 1987, Orlando became aware of the conflict of interest and arranged for substitute counsel to take over the oil contamination case.

On February 6, 1989, defendant moved to disqualify the firm of Orlando and Associates from prosecuting the actions.

The grounds stated were:

that the conduct of the firm in prosecuting this cause of action has constituted a conflict of interest in violation of the ABA Code of Professional Responsibility Canon 5 in that the firm failed to exercise judgment solely for the benefit of its client and free of compromising influences, Canon 9, in that the firm has exhibited an appearance of impropriety and that the firm has compromised the integrity of the judicial system, and Canon 4, in that the firm failed to preserve confidences of its client and abused the confidential relationship to the detriment of the defendant.

On March 1, 1989, the district court denied the motion, stating: "Motion denied. However, should the matter be presented to the Massachusetts Board of Bar Overseers and should it rule that an ethical impropriety has occurred, the court will reconsider." The matter was presented to the Massachusetts Board of Bar Overseers, no complaint was issued and the matter was closed.

The standard of review of a district court's disqualification of counsel decision is abuse of discretion. In re Bushkin Assocs., Inc., 864 F.2d 241, 246 (1st Cir.1989); Fiandaca v. Cunningham, 827 F.2d 825, 828 (1st Cir.1987); Kevlik v. Goldstein, 724 F.2d 844, 847 (1st Cir.1984). In a conflict of interest situation, which is what defendant asserts here, the relevant inquiry is whether the subject matter of the two representations is "substantially related"; could the attorney have obtained confidential information in the first suit that Although we do not condone a lawyer suing his own client, we find no basis in the unique circumstances of this case for finding that the district court abused its discretion in denying the disqualification motion. Except for Orlando himself there was no link between the fuel contamination suit and the personal injury action brought by Orlando on behalf of Borges. Defendant has not pointed to any confidential information that Orlando obtained, or could have obtained, during the time his office represented it in the fuel suit. Moreover, Orlando did not need access via the fuel suit for information about the defendant corporation. His client, Borges, in addition to being the fishing captain of the vessel, was one-third owner of the defendant corporation and its treasurer. Orlando had all the corporate information he needed for Borges' personal injury case available at his client's fingertips. Moreover, in addition to the fact that there was no actual conflict of interest, the simultaneous representation had ceased by the time the disqualification issue arose.

would have been relevant to the second. Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir.1983). See also Kevlik v. Goldstein, 724 F.2d at 850-51.

We are disturbed by the fact that Orlando would appear to have run afoul of the requirements of professional ethics at the time he took the statement from Antonio Pata. Orlando acted in the capacity of an attorney for Borges while a member of a firm still engaged in the active representation of Borges' prospective opponent, the defendant corporation, in another matter. Further, Orlando took this statement from Antonio Pata, a principal of the defendant corporation, under circumstances where it may have been unclear to Pata on whose behalf Orlando was acting. It would seem, therefore, that Orlando acted with an actual, impermissible conflict of interest in taking the statement. See, e.g., Rule 1.7 of the American Bar Association Model Rules of Professional Conduct (1984). We cannot condone such a practice.

Still, we also point out that it was not established, contrary to what defendant seems to assume, that the substance of Pata's statement was improperly and unethically influenced by Orlando. The circumstances surrounding how the statement was obtained were hotly disputed. There was testimony from which it could be found that Pata gave the statement voluntarily and with full understanding of what he was saying. There was contrary evidence by John...