Chugach Elec. Ass'n v. United States DC for Dist. of Alaska, 20568.

• Citation: 370 F.2d 441
• Decision Date: 06 February 1967
• Docket Number: No. 20568.,20568.
• Parties: CHUGACH ELECTRIC ASSOCIATION, a corporation, Petitioner, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF ALASKA AT ANCHORAGE and the Honorable Raymond E. Plummer, Judge, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 441 (1966)

CHUGACH ELECTRIC ASSOCIATION, a corporation, Petitioner, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF ALASKA AT ANCHORAGE and the Honorable Raymond E. Plummer, Judge, Respondents.

No. 20568.

United States Court of Appeals Ninth Circuit.

December 22, 1966.

Rehearing Denied February 6, 1967.

Ronald McKinstry, of Bogle, Gates, Dobrin, Wakefield & Long, Seattle, Wash., for petitioner.

Donald J. Merriman, Edgar Paul Boyko, Los Angeles, Cal., Charles Tulin, William J. Moran, Raymond E. Plummer, U. S. Dist. Judge, Groh & Benkert, Anchorage, Alaska, for respondents.

Before MERRILL, BROWNING and DUNIWAY, Circuit Judges.

MERRILL, Circuit Judge.

Petitioner is defendant in an action before respondent court brought by the trustee in bankruptcy of Mrak Coal Company. Petitioner moved to disqualify the trustee's attorney, Edgar Paul Boyko, on the ground of conflict of interest contrary to the Canons of Ethics.¹ The motion was denied by respondent court. That ruling not being appealable, Cord v. Smith, 338 F.2d 516 (9th Cir. 1964), petitioner brought this proceeding for a writ of mandamus directing the disqualification under 28 U.S.C. § 1651 (1964).

We here rule that disqualification is required. The decision is regretfully reached since an actual conflict of interest is not clearly established and from a study of the record we are satisfied of Mr. Boyko's good faith in resisting disqualification. Nevertheless, we conclude that this is a case in which an attorney must, at the instance of the adversary, his former client, stand aside.

Petitioner generates and sells electrical power in south central Alaska. Mr. Boyko served as its general counsel from October 1954 to April 1956 and subsequently served as consultant from July 1956 to April 1957.

The action brought by Mrak's trustee with Mr. Boyko as counsel charges petitioner with violations of the federal antitrust laws in efforts to retain its monopoly position as the sole company in the area engaged both in the generating and sale of electrical power. It is alleged that Mrak's bankruptcy resulted from these violations.

The trustee alleges that petitioner's monopoly position was threatened by the plans of another power retailer, Matanuska Electric Association, to acquire its own generating facilities; that petitioner conspired to deprive Matanuska of its source of coal by destroying the two principal coal suppliers, Mrak and Evan Jones Coal Co.; that a part of its scheme was to maneuver Mrak into a position of economic dependence on petitioner and then destroy Mrak by withdrawing its support and switching to natural gas as fuel.

Further background is recited in the opinion of the District Court:

"Over a period of time a very definite cleavage developed among the Chugach Board members. This eventually resulted in four Board members being strongly pro-management and three Board members anti-management. Both groups were vigorous and publicly vocal in their criticism of the other group and in advocating their respective positions.

"For a period of at least several years the open and public disputes between the Board members and the efforts of the majority members to remain a majority and the efforts of the minority members to become the majority resulted in many public statements and discussions. As a result the annual meeting and election of directors of C.E.A. was a matter of general interest to those residing in the Anchorage area.

* * * * * *

"At the annual meeting and election of C.E.A. in 1957 the anti-administration forces succeeded in electing a majority of the Board and the principal officers of the corporation.

"Inasmuch as Boyko had been in direct conflict with the advocated programs and policies of what had theretofore been a minority of the Board and subsequent to the election became a majority, he, on April 6, 1957, submitted his resignation."

The court concluded:

"Subsequent to the acceptance of Boyko\'s resignation on April 6, 1957, and sometime in or about July, 1957, the exact date being unknown, the activities on which the present case is predicated began.

"There has been no showing that during Boyko\'s employment as general counsel for C.E.A. prior to April 6, 1957, he received or had access to secret or confidential information related to the issues in the present case.

"The court

...