Motor Mart, Inc. v. Saab Motors, Inc., 72 Civ. 5214.
| Decision Date | 14 May 1973 |
| Docket Number | No. 72 Civ. 5214.,72 Civ. 5214. |
| Citation | 359 F. Supp. 156 |
| Parties | MOTOR MART, INC., Plaintiff, v. SAAB MOTORS, INC. and Saab-Scania of America, Inc., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Morrow D. Mushkin, Garden City, N. Y., for plaintiff.
Wiggin & Dana, New Haven, Conn., for defendants; by William J. Doyle, New Haven, Conn., of counsel and Brotman & Dolin, New York City, by Lester Dolin, New York City, of counsel.
The defendants move to disqualify plaintiff's attorney from appearing herein and for an order dismissing the First and Fifth causes of action pursuant to Fed.R.Civ.P. 12(b)(1), (4) and (5), or in lieu thereof quashing the return of service of summons with respect to such claims, for lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process. Defendants also seek clarification of ¶ 24 of the Complaint. Fed.R.Civ.P. 12(e).
This case is brought for damages pursuant to the Dealers' Day in Court Act, 15 U.S.C. § 1221 et seq., alleging unlawful termination of an automobile dealership. Defendants contend that Morrow D. Mushkin, Esq., plaintiff's attorney herein, was employed professionally by Saab Motors, Inc. as its counsel on a regular basis from 1957 until 1962. In 1958-59, Mr. Mushkin represented Saab Motors as its counsel in a claim against Saab Motors which, although brought under New York State law, is characterized by the moving parties herein as being essentially the same type of suit as is now before this Court i.e., for alleged violation of Section 197 of the General Business Law of the State of New York, McKinney's Consol. Laws, c. 20. That statute is shorter than the present Federal law but is similar in intent. Defendants assert that through such representation as well as through his more general representation, Mr. Mushkin was exposed to and received information on defendant Saab Motors' policies, trade practices, and its methods of operation and procedures which are pertinent to and might be used in the present case with adverse impact upon the defendants.
Mr. Mushkin replies that during the course of his relationship with Saab Motors he did not, in fact, receive either confidential information or information relevant to the present case. He states that nearly twelve years* have lapsed since he represented Saab Motors, and contends that, in any event, his connection with that defendant was not extensive. Moreover, Mr. Mushkin states that the prior state court action never proceeded to trial and that it was brought before the Federal Act underlying the present suit was enacted.
Canon 4 of the Code of Professional Responsibility provides that "a lawyer should preserve the confidences and secrets of a client." This Court may be requested to enforce this provision, since "without firm judicial support, the Canons of Ethics would be only reverberating generalities." Empire Linotype School v. United States, 143 F.Supp. 627, 633 (S.D.N.Y. 1956).
The standard to be applied in enforcing Canon 4 was recently stated by the Court of Appeals for this Circuit, Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir., 1973):
Without strict enforcement of such high ethical standards, a client would hardly be inclined to discuss his problems freely and in depth with his lawyer, for he would justifiably fear that information he reveals to his lawyer on one day may be used against him on the next. A lawyer's good faith, although essential in all his professional activity, is, nevertheless, an inadequate...
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