IN RE COORDINATED PRETRIAL PROCEEDINGS, ETC., M.D.L. No. 150 WPG.

• Decision Date: 10 November 1980
• Docket Number: M.D.L. No. 150 WPG.
• Parties: In re COORDINATED PRETRIAL PROCEEDINGS IN PETROLEUM PRODUCTS ANTITRUST LITIGATION.
• Court: U.S. District Court — Central District of California

502 F. Supp. 1092

In re COORDINATED PRETRIAL PROCEEDINGS IN PETROLEUM PRODUCTS ANTITRUST LITIGATION.

M.D.L. No. 150 WPG.

United States District Court, C. D. California.

November 10, 1980.

Robert K. Corbin, Atty. Gen., Kenneth R. Reed, Chief Counsel, Antitrust Section, David B. Goldstein, Asst. Atty. Gen., Antitrust Div., Phoenix, Ariz., and Furth, Fahrner & Wong, Kirk A. McKinney, Richard S. E. Johns, San Francisco, Cal., for State of Arizona.

George Deukmejian, Atty. Gen., by Michael Ivan Spiegel, Wayne M. Liao, William S. Clark, Deputy Attys. Gen., Dept. of Justice, State of California, San Francisco, Cal., and Gary James, Deputy Atty. Gen., Dept. of Justice, State of California, Los Angeles, Cal., for State of California.

Robert L. Shevin, Atty. Gen., by Bill L. Bryant, Jr., Jerome W. Hoffman, Asst. Attys. Gen., Dept. of Legal Affairs, Tallahassee, Fla., Jones & Dunne, Stephen L. Dunne, San Diego, Cal., for State of Florida.

James Kirkham Johns, Chief Counsel, Antitrust Div., Salem, Or., for State of Oregon.

Slade Gorton, Atty. Gen. by Thomas L. Boeder, Senior Asst. Atty. Gen., John R. Ellis, Jay Uchida, Asst. Attys. Gen., Seattle, Wash., for State of Washington.

Blecher, Collins & Hoecker, Maxwell M. Blecher, Gary W. Hoecker, Martin J. Trupiano, Brian James Hennigan, Candace E. Carlo, Los Angeles, Cal., for City of Long Beach.

McCutchen, Doyle, Brown & Enersen, Stanton R. Koppel, San Francisco, Cal., and Milbank, Tweed, Hadley & McCloy, Adlai S. Hardin, Jr., Sharon W. Lindsay, Edward I. Handelman, New York City, for defendant Amerada Hess Corp.

Hughes, Hubbard & Reed, Otis Pratt Pearsall, John A. Donovan, Philip H. Curtis, Melinda J. Roberts, New York City, and Donald A. Bright, Associate Gen. Counsel, Howard S. Fredman, Barbara A. Hindin, Thomas H. Reilly, Los Angeles, Cal., and Hughes, Hubbard & Reed, Ronald C. Redcay, Paul M. Smith, Los Angeles, Cal., for defendant Atlantic Richfield Co.

Procopio, Cory, Hargreaves & Savitch, Robert G. Russell, Jr., Paul B. Wells, San Diego, Cal., and Russell H. Smith, Darrell A. Kelsey, Tulsa, Okl., for Cities Service Company-Cities Service Oil Co.

Latham & Watkins, Max Gillam, Fredric J. Zepp, Jon D. Demorest, Carl E. Witschy, Los Angeles, Cal., and Tom Burton, Bruce Merrill, Houston, Tex., for Conoco, Inc.

McCutchen, Black, Verleger & Shea, Philip A. Verleger, David A. Destino, Lisa C. Woods, John C. Mueller, Gregory R. McClintock, Michael A. Morris, Los Angeles, Cal., and C. Kenneth Roberts, John Chiles, James A. Drexler, George F. Safi, Scott Lansdown, Houston, Tex., and Rosemary Stein, New York City, for defendant Exxon Corp.

Dechert, Price & Rhoads, Christopher J. Collins, Robert A. Cohen, New York City, and Philip J. Englund, Los Angeles, Cal., for defendant Getty Oil Co.

John E. Bailey, Harry P. Davis, Jr., Joan B. Oxford, Houston, Tex., and Anderson, Granger & Nagels, Kenton C. Granger, Overland Park, Kan., and George E. Jarvis, Jr., Los Angeles, Cal., for defendant Gulf Oil Company—U. S.

Donovan, Leisure, Newton & Leisure, Washington, D. C., Andrew J. Kilcarr, Charles F. Rice, Thomas Trowbridge, Donald L. Clarke, New York City, Vincent Tricarrico, Maureen O'Bryon, Washington, D. C., Daniel Bukovac, New York City, and Sheppard, Mullin, Richter & Hampton, Don T. Hibner, Jr., Charles W. McCoy, Los Angeles, Cal., Charles B. Straus, III, New York City, for defendant Mobil Oil Corp.

Sullivan & Cromwell, Richard Menaker, John Dickey, New York City, and Adams, Duque & Hazeltine, John H. Brinsley, Robert M. Mitchell, Catherine Hunt Ruddy, Los Angeles, Cal., and Phillips Law Department, Neal Lehman, Bartlesville, Okl., for Phillips Petroleum Co.

Kadison, Pfaelzer, Woodard, Quinn & Rossi, Lawrence A. Cox, Los Angeles, Cal., for defendant Powerine Oil.

Pillsbury, Madison & Sutro, Richard J. MacLaury, Anthony P. Brown, Philip L. Judson, James L. Wanvig, Mary B. Cranston, Robert P. Taylor, Robert A. Mittelstaedt, W. Jeffrey Schmidt, David C. Stegall, Mary Kay Sheridan, San Francisco, Cal., for Standard Oil Company of California.

M. J. Keating, Chicago, Ill., and Paul, Hastings, Janofsky & Walker, Oliver F. Green, Jr., Robert S. Span, Los Angeles, Cal., for Standard Oil Company (Indiana).

J. King Rosendale, Cleveland, Ohio, and Payne, Hilgendorff, Morehouse & Shafer, Paul C. Shafer, Jr., Fairfield, Conn., for Standard Oil Company (Ohio).

Robert M. Dubbs, Andrew Derman, Radnor, Pa., and Pepper, Hamilton & Sheefs, John G. Harkins, Joseph Zulli, Patricia Burrall, Philadelphia, Pa., for Sun Oil Co.

R. D. Wilson, White Plains, N. Y., and Kaye, Scholer, Fierman, Hays & Handler, Barry Willner, New York City, and Sullivan, Jones & Archer, Robert L. Simmons, Richard W. Page, Christopher Q. Britton, William D. Hughes, San Diego, Cal., and Leslie C. Randall, Los Angeles, Cal., for Texaco, Inc.

Brobeck, Phleger & Harrison, John Sparks, William J. "Zak" Taylor, Paul T. Dye, San Francisco, Cal., and Harold E. Zahner, Los Angeles, Cal., for Union Oil Co.

MEMORANDUM OF DECISION

WILLIAM P. GRAY, District Judge.

In these cases, which charge major oil companies with having conspired to violate the antitrust laws of the United States, the plaintiffs (Attorneys General of several states) currently are in process of noticing the depositions of employees and retired employees of the defendant corporations. It often happens that when such a prospective deponent receives a subpoena for his deposition, or otherwise learns that he is a target of inquiry, he, understandably, contacts an appropriate representative of his employer (or former employer) and inquires as to what the dispute is all about and where he fits into the picture. He promptly is referred to the firm of attorneys that are representing the company in these actions and, from the first interview, it is mutually and tacitly inferred that an attorney-client relationship has been established, at no cost to him, which carries through the preparation for the deposition and its accomplishment.

The plaintiffs contend that they are prejudiced by such a process and have moved that counsel in these actions be precluded from simultaneously representing a party and an individual non-party deponent. This court agrees with the plaintiffs, for reasons herein set forth, and will issue an order accordingly.

The employees and former employees that the plaintiffs seek to depose are not defendants, nor are they, through any stretch of imagination, likely to become defendants. They presumably are independent witnesses whose duty and only appropriate objective is to tell "the truth, the whole truth, and nothing but the truth." Such goals, as defense counsel point out, are basically in harmony with their own, as respected members of the profession and officers of the court. "Basically," but not quite. Unlike the independent witnesses, counsel are not supposed to be disinterested. Their duty is to cause the record of a deposition or of a trial to be just as favorable to their clients as they can. I do not mean to imply that the interests of the witness and of the attorney are likely to be out of harmony with each other or that counsel would be willing to suborn perjury. However, "the whole truth" often becomes a matter of subjective judgment, and a factual conclusion that is deeply held by a party and its counsel may diverge substantially from the honest recollection of a perceptive witness. If such a witness is represented at a deposition by counsel for a defendant company, the possibility cannot be discounted that the attorney may become faced with the need to impeach the testimony of his own client.

I have little doubt that if a clear conflict of this nature were to be perceived in advance, counsel immediately would disqualify himself from further representation of the witness. It also is true that, under the Code of Professional Responsibility of the American Bar Association,

"... a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." Section DR 5-105(C).

In all likelihood, each of the employee or former employee witnesses that the plaintiffs may want to depose would consent gladly to the dual representation, in order to have the services of a knowledgeable attorney without cost to him. The alternative of appearing without counsel or of using his own funds to employ an attorney without previous experience in this litigation, is hardly of comparable attraction.

The defendants contend that once the witness has consented to the dual representation after full disclosure of a potential or actual conflict has been made, that is the end of the matter. They refer to In re Taylor, 567 F.2d 1183, 1191 (2d Cir. 1977), in support of the proposition that under these circumstances the court is "... without power unilaterally to obstruct the choice of counsel."

Thus far, the discussion in this memorandum has focused upon the application of Canon 5 of the Code of Professional Responsibility.¹ There, the concern is limited to the interests of the respective clients that are the subjects of dual representation. In such context, I believe it correct to say that if the clients consent after full disclosure, neither an opposing party nor the court is in position to complain. Melamed v. ITT Continental Baking Co., 592 F.2d 290 (6th Cir. 1979).

However, in the present situation, there are troublesome ethical considerations that are not limited to the protection of the interests of a prospective witness or of a defendant corporation.

A. The Determination Of The Need For Counsel.

From the papers submitted and the comments made at the hearing on this issue, I have considerable doubt that the prospective deponents have any idea that they need an attorney when, upon being advised that their deposition...