Corn Derivatives Antitrust Litigation, In re
| Citation | 748 F.2d 157 |
| Decision Date | 15 November 1984 |
| Docket Number | O-G,No. 83-5729,83-5729 |
| Parties | , 1984-2 Trade Cases 66,281 In re CORN DERIVATIVES ANTITRUST LITIGATION (MDL 414). Appeal of JOHN E. KOERNER & CO., INC., Imperial Products Corporation, and Pan-old, Inc. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Louis R. Koerner, Jr. (argued), Law Offices of Louis R. Koerner, Jr., New Orleans, La., for John E. Koerner & Co., and Imperial Products Corp.
John A. Cochrane (argued), Cochrane & Bresnahan, St. Paul, Minn., for Pan-O-Gold Baking Co., Inc.
Clive S. Cummis (argued), Charles J. Walsh, Sills, Beck, Cummis, Zuckerman, Radin & Tischman, P.A., Newark, N.J., for Food Foundation, Inc.
Arnold Levin, Levin & Fishbein, Philadelphia, Pa., for Kelco Industries.
David Berger, Berger & Montague, P.C., Philadelphia, Pa., for Golden Quality Ice Cream Co.
Douglas V. Rigler, Foley & Lardner, Washington, D.C., for G. Heileman Brewing Co., Inc.
Joel C. Meredith, Bruce K. Cohen, Steven J. Greenfogel, Meredith & Cohen, P.C., Philadelphia, Pa., for Eastern Candy Co., Inc.
Harold E. Kohn, Dianne M. Nast, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for Bodines, Inc., and Cumberland Farms Dairy, Inc.
Morton M. Maneker, Proskauer, Rose, Goetz & Mendelsohn, New York City, for A.E. Staley Mfg. Co.
Michael H. King, Ross & Hardies, Chicago, Ill., for Consolidated Packaging Corp.
Warren Rubin, Gross & Sklar, P.C., Philadelphia, Pa., for Marstan Industries, Inc.
Stanley D. Robinson, Kaye, Scholer, Fierman, Hays & Handler, New York City, for Nabisco, Inc.
Guido Saveri, Saveri & Saveri, San Francisco, Cal., for Kalva Corp. & Virnelson Bakery, Inc.
William M. Dallas, Jr., Sullivan & Cromwell, New York City, for Amstar Corp.
John P. Ryan, Jr., Robert C. Schnitz, McBride & Baker, Chicago, Ill., for Grain Processing Corp.
Robert A. Skirnick, Wolf, Popper, Ross, Wolf & Jones, New York City, for Eastern Candy Co., Korbro Oil, and Plantation Confection Co., Inc.
Barbara A. Mentz, Hall, McNicol, Hamilton & Clark, New York City, for American Maize-Products Co.
Keith E. Pugh, Jr., Edward P. Henneberry, Howry & Simon, Washington, D.C., for Hubinger Co.
Terrence C. Sheehy, Peter E. Moll, Howry & Simon, Washington, D.C., for Anheuser-Busch, Inc.
Joseph Barbash, Michael E. Wiles, Debevoise & Plimpton, New York City, for National Starch & Chemical Corp. John L. McGoldrick, McCarter & English, Newark, N.J., for Tropical Preserving Co., Inc.
Jeremiah F. Hallisey, O'Brien & Hallisey, P.C., San Francisco, Cal., for Sanitary Bakery.
Perry Goldberg, Specks & Goldberg, Ltd., Chicago, Ill., for Superior Beverage Co.
James R. Irwin, Steven W. Berman, Shidler, McBroom & Gates, Seattle, Wash., for Penick & Ford Ltd.
Sheldon O. Collen, Friedman & Koven, Chicago, Ill., for Federal Bake Shops, Inc.
William A. Garrigle, Garrigle, Chierici & Palm, Cherry Hill, N.J., for Bodines, Inc. & Cumberland Farms Dairy, Inc.
Richard D. Catenacci, Connell, Foley & Geiser, Newark, N.J., liason counsel, for appellees.
Lawrence A. Whipple, Jr., Whipple, Ross & Hirsh, Newark, N.J., for White Oak Ice Cream, Inc. & Oak Point Dairies of New Jersey.
Eugene M. Warlich, Doherty, Rumble & Butler, P.A., St. Paul, Minn., for Land O'Lakes, Inc.
Paul J. Linker, Robinson, Wayne, Levin, Riccio & LaSala, Newark, N.J., for United A.G. Cooperative, Inc.
Burton H. Brody, Standard Brands Inc., New York City, for Standard Brands Inc.
Norman R. Carpenter, Faegre & Benson, Minneapolis, Minn., for Archer Daniels Midland Co.
Robert H. Weir, Robert H. Weir, A.P.C., San Jose, Cal., for Keystone Co.
Mario N. Alioto, Alioto & Alioto, San Francisco, Cal., for Falstaff Brewing Corp.
Jack L. Block, Sachnoff, Weaver & Rubenstein, Chicago, Ill., for Health Care Industries.
Seymour Kurland, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for Finkelstein Farms, Inc.
Allen S. Joslyn, Denis McInerney, Cahill, Gordon & Reindel, New York City, for CPC Intern., Inc.
Albert G. Besser, Hannoch, Weisman, Stern, Berkowitz & Kinney, Newark, N.J., for Grain Processing Corp.
Before SEITZ and ADAMS, Circuit Judges, and LATCHUM, Senior District Judge. *
A group of attorneys representing certain members of the plaintiff class, 1 who are consumers of corn derivative products, move for the disqualification of Cochrane & Bresnahan as attorneys for the appellant Pan-O-Gold Baking Company. This motion was made during the pendency of this appeal challenging a order of the district court approving the settlement of the class action.
The parties tacitly agree that this court should decide this motion on the present record. The pertinent facts are not in dispute. The St. Paul, Minnesota, law firm of Cochrane & Bresnahan ("C & B") was privately retained by the Pan-O-Gold Baking Company, Inc. ("Pan-O-Gold") and Land O'Lakes, Inc. ("Land O'Lakes") to file separate antitrust complaints against the major producers of corn derivative products. Several other actions were brought throughout the country, and all the actions were consolidated by the Multidistrict Litigation Panel into the present action in the district court in New Jersey. C & B continued to represent both Pan-O-Gold and Land O'Lakes, who were named plaintiffs, as well as a plaintiff class member, General Mills, in this litigation.
After consolidation, a partner of C & B, John Cochrane, was named by the district court to be a member of the plaintiffs' steering committee, the group of attorneys that guided the litigation of this matter.
Before this action reached trial, a settlement was negotiated. Prior to the hearing by the district court on the fairness of the settlement, John Cochrane filed a written objection to the settlement on behalf of Pan-O-Gold and Land O'Lakes. Later, on July 30, 1983, Cochrane was informed by an attorney for Land O'Lakes and General Mills that those companies had decided to accept the settlement if it were approved by the district court.
On September 7, 1983, the district court approved the settlement. On October 4, 1983, John E. Koerner & Company, Imperial Products Corporation and Pan-O-Gold, filed a notice of appeal. C & B mailed to the district court a notice of withdrawal as counsel of record for Land O'Lakes on October 18, 1983. 2 On this appeal, C & B does not purport to represent anyone other than Pan-O-Gold.
The movants then filed this motion to disqualify C & B as attorneys for Pan-O-Gold before this court on the ground that C & B's continued representation of Pan-O-Gold would violate the controlling standards of professional conduct. 3
This disqualification issue was not raised in the district court. We believe, however, that this motion is properly before us. One of the inherent powers of any federal court is the admission and discipline of attorneys practicing before it. See Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. den., 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975) (); Ramos Colon v. United States Attorney, 576 F.2d 1, 3 (1st Cir.1978). See also Fed.R.App.P. 46(C) ().
To resolve this motion, we must determine the governing standard for professional conduct before this court. Our court of appeals has never formally adopted any particular formulation of the standards of professional conduct. The lack of formal standards, however, cannot mean that the attorneys appearing before us do not have ethical obligations and duties. See United States v. DeFalco, 644 F.2d 132 (3d Cir.1979) (en banc) (). Also, while the exact contours of that duty have not been stated, the vast majority of the courts in this country have adopted, with slight variation, the Code of Professional Responsibility promulgated by the American Bar Association, and thus, the basic principles of an attorney's duties and responsibilities are clear and easily applied. Further, since each of the attorneys in C & B are bound by the duties imposed by the bars of their respective states, they have notice of the common principles against conflicts of interests imbedded in the national standards of current practice.
We believe that the appropriate guidance for finding the current national standards of ethical norms lies in the standards promulgated by the American Bar Association. Cf. Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (). Accordingly, we will apply the principles and rules set forth in the ABA Model Code of Professional Responsibility, and in the recently approved Model Rules of Professional Conduct.
The movants, purporting to speak for the plaintiff class, claim that C & B breached its duty of professional responsibility by taking a position on appeal for Pan-O-Gold adverse to that of Land O'Lakes in litigation in which C & B had previously represented both parties.
C & B contends that the plaintiff class, as an entity, lacks standing to challenge the alleged breach of duty to Land O'Lakes. They argue that the correlative right to C & B's duty belongs only to the former client, Land O'Lakes. See In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88-89 (5th Cir.1976) (). But see Kevlik v. Goldstein, 724 F.2d 844 (1st Cir.1984) (). Assuming without deciding that a motion to disqualify must be brought by a former client, we believe that the requirement is satisfied because the present record discloses that...
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