Meat Price Investigators Ass'n v. Iowa Beef Processors, Inc.

• Decision Date: 24 June 1977
• Docket Number: Civ. No. 76-252-2.
• Citation: 448 F. Supp. 1
• Parties: MEAT PRICE INVESTIGATORS ASSOCIATION et al., Plaintiffs, v. IOWA BEEF PROCESSORS, INC., a Delaware Corporation, MBPXL Corporation, a Delaware Corporation, Flavorland Industries, Inc., a Delaware Corporation, Spencer Foods, Inc., a Delaware Corporation, Defendants.
• Court: U.S. District Court — Southern District of Iowa

448 F. Supp. 1

MEAT PRICE INVESTIGATORS ASSOCIATION et al., Plaintiffs, v. IOWA BEEF PROCESSORS, INC., a Delaware Corporation, MBPXL Corporation, a Delaware Corporation, Flavorland Industries, Inc., a Delaware Corporation, Spencer Foods, Inc., a Delaware Corporation, Defendants.

Civ. No. 76-252-2.

United States District Court, S. D. Iowa, Central Division.

June 24, 1977.

Lex Hawkins, Glenn L. Norris, Hawkins, Hedberg & Ward, Des Moines, Iowa, John A. Cochrane, John E. Thomas, Cochrane & Bresnahan, St. Paul, Minn., for plaintiffs.

Stephen F. Avery, Cornwall & Avery, Spencer, Iowa, Gordon G. Busdicker, James B. Loken, Faegre & Benson, Minneapolis, Minn., for defendant Spencer Foods, Inc. Bernard B. Marks, Gerald Kraai, Shull, Marshall & Marks, Sioux City, Iowa, (Charles Naylor, Jr., Gen. Counsel, Flavorland Industries, Inc., Denver, Colo.), and Jeffrey J. Scott, Gareth Morris, Kutak, Rock, Cohen, Campbell, Garfinkle & Woodward, Omaha, Neb., for defendant Flavorland Industries, Inc.

Herschel G. Langdon, Richard G. Langdon, Herrick, Langdon, Belin, Harris, Langdon & Helmick, Des Moines, Iowa, Edward W. Rothe, Lee A. Freeman, Sr., Freeman, Rothe, Freeman & Salzman, James Malysiak, Chicago, Ill., and Wm. L. Heubaum, Gen. Counsel, Iowa Beef Processors, Inc., Dakota City, Neb., for defendant Iowa Beef Processors, Inc.

John A. McClintock, Hansen, Wheatcraft & McClintock, Des Moines, Iowa, and Leslie H. Williams, Gen. Counsel, MBPXL Corp., Wichita, Kan., Charles L. Bacon, John C. Dods, James T. Newsom, Steven C. Parrish, Shook, Hardy & Bacon, Kansas City, Mo., for defendant MBPXL Corp.

ORDER

HANSON, Chief Judge.

The Court has before it the April 11, 1977 motion of defendant Spencer Foods, Inc., seeking severance pursuant to Rule 21 of the Federal Rules of Civil Procedure and a disqualification of plaintiffs' counsel, Lex Hawkins, John Cochrane and their respective law firms, from prosecuting the severed action or any related or similar action against Spencer Foods. Said motion, which alleges a violation by plaintiffs' counsel of Disciplinary Rule 7-104(A)(1) of the Iowa Code of Professional Responsibility, was resisted and came on for a hearing before this Court on April 29 and May 10, 1977. Pursuant to those hearings and the post-hearing briefs and replies of the respective parties, the Court herein finds that the motion must be overruled.

Defendant Spencer's motion for severance and disqualification is predicated upon its contention that plaintiffs' counsel's January 30, 1977 interview of Mr. Hughes Bagley, a vice president of Spencer, was in violation of Disciplinary Rule 7-104(A)(1).

DR 7-104. Communicating with One of Adverse Interest.

(A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Knowing Bagley to be a party represented by Mr. Gordon G. Busdicker and Stephen Avery, counsel for defendant Spencer, Hawkins and Cochrane are said to have prejudiced Spencer's ability to defend itself in this action by extensively questioning Bagley, without counsel or authorization, in preparation for the deposition of one Alan Booge, an official for Iowa Beef Processors, Inc. Defendant Spencer, while claiming that the questioning did touch upon its operations, argues that such unauthorized interviewing of any defendant as to the operations of other defendants is unethical and prejudicial. To permit such activity, defendant maintains, would "wreak havoc upon the judicial system."

In submitting its severance and disqualification argument, defendant Spencer, unable to offer caselaw squarely in support of its position, implores the Court to invoke certain Informal Decisions of the ABA Standing Committee on Ethics and Professional Responsibility and bring the conduct of Messrs. Hawkins and Cochrane under the dictates of DR 7-104. To ultimately do so, the Court would have to make several determinations with respect to corporate interrelationships and the workings of DR 7-104. It would have to determine that the Disciplinary Rule was meant to cover corporate parties and find that Bagley, because of his apparent membership in the control group of Spencer, was in fact a "party" within the meaning of the Rule. The Court would further have to determine whether the interests of the corporate entity and Bagley were coterminous to the extent that it was encumbent upon plaintiffs' counsel to notify Spencer's attorney of discussions with an officer. If those discussions were found not to have touched upon Spencer, then the Court would confront the problem of whether the language of DR 7-104 forbidding communication on the "subject of representation" means that no communication may be had on any aspect of a multi-defendant lawsuit without notification of all defendants' counsel.

This Court does not shy from decision making simply because it may be of a difficult or precedential nature. However, it also does not make determinations or seek to establish precedents which go beyond the facts of the case before it. This is particularly true with a case involving charges of unethical conduct, for the case-law is clear that a "broad brush approach" to matters of disqualification is to be avoided. Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); W. T. Grant Co. v. Haines, 531 F.2d 671, 675 (2d Cir. 1976).

In ruling upon defendant's motion, the Court...