Polyagro Plastics, Inc. v. Cincinnati Milacron, Inc., Civ. A. No. 94-1443 (HL)

• Decision Date: 27 February 1995
• Docket Number: Civ. A. No. 94-1443 (HL),94-2732 (HL).
• Citation: 903 F. Supp. 253
• Parties: POLYAGRO PLASTICS, INC., Plaintiff, v. CINCINNATI MILACRON, INC., et al., Defendants. NORTH AMERICAN FILM, CO., Plaintiff, v. CINCINNATI MILACRON, INC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

903 F. Supp. 253

POLYAGRO PLASTICS, INC., Plaintiff, v. CINCINNATI MILACRON, INC., et al., Defendants.

NORTH AMERICAN FILM, CO., Plaintiff, v. CINCINNATI MILACRON, INC., et al., Defendants.

Civ. A. Nos. 94-1443 (HL), 94-2732 (HL).

United States District Court, D. Puerto Rico.

February 27, 1995.

Eric Perez-Ochoa, Martinez, Odell & Calabria, San Juan, PR, Bruce Martin Ginsburg, Ginsburg & Associates, Philadelphia, PA, for Polyagro Plastics, Inc., North American Film Corp.

Rafael Perez-Bachs, McConnell Valdes, San Juan, PR, David C. Horn, Frost & Jacobs, Cincinnati, OH, for Cincinnati Milacron, Inc., Sano, Inc.

OPINION AND ORDER

LAFFITTE, District Judge.

Before the Court is plaintiff Polyagro Plastics, Inc.'s motion to disqualify. The Court held an evidentiary hearing on the motion to disqualify on February 21, 1995, during which attorney Bruce Ginsburg, Carol Sherman, and Samuel Cespedes testified. Having considered both plaintiff's and defendants' motions and the evidence and testimony presented during the evidentiary hearing, the Court is now ready to rule.

BACKGROUND

This case involves the following causes of action: breach of contract, breach of express and implied warranty, negligence, misrepresentation, and res ipsa loquitur. Plaintiff Polyagro Plastics, Inc. has filed a motion to disqualify defendant Cincinnati Milacron, Inc. and Sano, Inc.'s counsel, the McConnell Valdes law firm. The basis for the disqualification motion is a nine- to ten-minute telephone conversation between plaintiff's attorney, Bruce Ginsburg, and attorney Cespedes discussing the possible retention of Cespedes' law firm, McConnell Valdes, to represent plaintiff as co-counsel in this matter. After the telephone conversation, plaintiff ended up retaining another law firm and McConnell Valdes ended up representing defendants in this action.

Specifically, plaintiff argues that its stateside attorney, Ginsburg, of Ginsburg & Associates, telephoned attorney Cespedes, of McConnell Valdes, in order to "seek general advice and to seek local co-counsel for litigation in Federal Court on behalf of the Plaintiff." (Aff. of Ginsburg). Ginsburg states that the conversation covered the relationship of North American Film and Polyagro Plastics, the "potential legal and damages theories for the litigation, including an overview of the machinery at issue and its flaws/defects as sold by the Defendants" and a proposal of a financial agreement. (Aff. of Ginsburg). Cespedes then told Ginsburg he would review the matter, check for conflict, and contact Ginsburg with the firm's decision. Further, Ginsburg states that "It was assumed that all discussions would be confidential, since probing questions were asked and frank mental impressions were provided." (Aff. of Ginsburg).

During the evidentiary hearing, Ginsburg expanded upon his original affidavit. Ginsburg testified that during the nine- to ten-minute telephone conversation with Cespedes in February 1994, Ginsburg informed Cespedes that he was calling regarding a tort/contract case and that he was looking for co-counsel in Puerto Rico and assistance in Ginsburg's admittance pro hac vice. Ginsburg further explained to Cespedes that plaintiff Polyagro had purchased a $650,000.00 piece of equipment from defendants in order to produce diaper liners and the purchased equipment did not function properly. Ginsburg explained that North American Film wanted to produce the same product in the United States and that Ginsburg would be representing them in a similar action in Pennsylvania.

Ginsburg also testified that he told Cespedes that one of plaintiff's engineers had inspected the equipment. The engineer had determined that the crux of the machinery's problem was that the "winder" did not wind because it was too long. Ginsburg told Cespedes that the machinery was unable to work due to computer and electronic problems. Moreover, Ginsburg told Cespedes the defects were irreparable. Ginsburg also informed Cespedes that the machinery's inability to function was putting pressure on the plaintiff financially, and therefore, Ginsburg was calling with a sense of urgency in moving the case along.

From there, Ginsburg testified, he informed Cespedes of the various legal theories that Ginsburg was planning to pursue: breach of contract, fraud, and misrepresentation. Ginsburg informed Cespedes that plaintiff had discovered that despite the representation by defendant that they had previously built said machinery, defendant's machinery delivered to plaintiff was a prototype. Ginsburg also testified that he informed Cespedes of the damage theories for this action and the fact that Ginsburg could document loss of income. Ginsburg told Cespedes that this case was a winner. Ginsburg and Cespedes discussed a fee arrangement, but left the conversation that Cespedes would check for a conflict and then get back in touch with Ginsburg. Ginsburg testified that Cespedes appeared interested in the case. Further, Ginsburg testified that he understood his conversation with Cespedes to be confidential and that Cespedes never steered Ginsburg away from certain topics or details.

Ginsburg further testified that he never heard from Cespedes again. In June 1994, Cespedes telephoned Ginsburg & Associates. Because Ginsburg was out of the office, Cespedes spoke with attorney Sherman. Sherman testified during the evidentiary hearing that Cespedes stated that defendants had contacted McConnell Valdes, and if plaintiff was not interested in hiring McConnell for this action, McConnell would be representing defendants in same.

During the hearing, the Court repeatedly asked Ginsburg what information relayed to Cespedes would actually prejudice plaintiffs. Ginsburg testified that the confidential information that would prejudice plaintiffs entailed the disclosures that there was an engineer who had been monitoring the problem, the identity of the father and son who own Polyagro, the reasons for the defects in the machinery, the theories for damages, and the financial situation of Polyagro. The Court also asked Ginsburg whether or not all this information relayed to Cespedes during the telephone conversation was actually less specific than what was in the complaint. Ginsburg appeared to agree with the Court that the information relayed was less specific than that contained in the complaint, which had not been filed at the time that Ginsburg and Cespedes held their telephone conversation.

Ginsburg also testified that defendants' interrogatory number 14 indicated defendants were utilizing confidential information gained during Cespedes' conversation with Ginsburg. Ginsburg testified that but for the information relayed to Cespedes, defendants would not have written said interrogatory. Moreover, in the motion to disqualify, plaintiff states that the information contained in defendants' motion to dismiss, concerning the relationship between Polyagro and North American Film, related directly to the information conveyed to Cespedes by Ginsburg during their telephone conversation.

Finally, Ginsburg explained that his testimony during the hearing was more specific than that in his affidavit for two reasons. First, Ginsburg chose to make his affidavit less detailed because he did not want to repeat confidential information again to the advantage of defendants. Second, Ginsburg explained that because he was under time constraints during the drafting of his affidavit's testimony, it was more vague than his testimony during the hearing.

On the other hand, in his affidavit and during the hearing, Cespedes testified that during their telephone conversation in February 1994, Ginsburg spoke in generalities only about the overall nature of the matter. Ginsburg did tell Cespedes that Ginsburg was exploring whether McConnell Valdes would represent Polyagro Plastics, plaintiff herein, against Cincinnati Milacron, defendant herein, in a potential breach of contract/tort action. Cespedes testified, however, that although Ginsburg discussed that there was a defect in the machinery, Ginsburg never mentioned the "winder". Cespedes discussed the resources of the McConnell Valdes law firm and responded to Ginsburg's inquiries about other San Juan law firms. At the end of the conversation, Ginsburg promised to get back to Cespedes.

Cespedes further testified that on June 7, 1994, David Horn, an Ohio attorney for Cincinnati Milacron and Sano, attempted to contact attorney Rafael Perez-Bachs of McConnell Valdes in regards to representing said defendants in this action. Because Perez-Bachs was not in the office, Cespedes took the telephone message. Cespedes telephoned Ginsburg, advised Ginsburg's firm that the other side had requested McConnell's representation, and requested Ginsburg's decision as to which firm would represent plaintiff. Ginsburg's firm then advised Cespedes that plaintiff had selected the law firm of Martinez, Odell.

APPLICABLE RULES

Under Local Rule 211.4(B), this Court adopts the Model Rules of Professional Conduct adopted by the American Bar Association on August 2, 1983. In re Cordova-Gonzalez, 996 F.2d 1334, 1335 n. 1 (1st Cir. 1993). Under Rule 1.9(a) of the Model Rules of Professional Conduct "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation." Model Rules of Professional Conduct Rule 1.9 (1983). And under Rule 1.10, "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules .. 1.9...." Model Rules of Professional Conduct Rule 1.10 (1983).

DISCUSSION

Courts must balance two competing interests when deciding a motion to disqualify another party's attorney: (i) the client's...