Steel v. General Motors Corp.

• Decision Date: 05 December 1995
• Docket Number: Civil Action No. 95-2506.
• Parties: Paul STEEL, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendants.
• Court: U.S. District Court — District of New Jersey

912 F. Supp. 724

Paul STEEL, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendants.

Civil Action No. 95-2506.

United States District Court, D. New Jersey.

December 5, 1995.

COPYRIGHT MATERIAL OMITTED

Thomas V. Convery, Sharon McConvery, Morley, Cramer, Tansey, Haggerty & Fanning, Woodbridge, New Jersey, for Petitioner General Motors Corporation.

James L. Griffith, Sr., Peter Garcia, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pennsylvania, for Respondents Kimmel & Silverman, P.C.

OPINION

KUGLER, United States Magistrate Judge:

This matter comes before the court upon motion by Defendant General Motors Corporation to disqualify plaintiff's counsel, the firm of Kimmel & Silverman, due to that firm's recent hiring of Jay M. London, Esquire, former counsel for GM. The abovecaptioned matter involves a single-vehicle breach of warranty action, commonly referred to as a "lemon law" case. In addition to the above-captioned matter, there currently are twenty (20) lemon law cases pending in the District of New Jersey against GM filed by Kimmel & Silverman, and this motion, by agreement of counsel, shall apply to all of them. These cases are:

                  Weisen v. GMC,     Civ. No. 95-2483  (JHR)
                  Bove v. GMC,       Civ. No. 95-1453  (JBS)
                  Abendroth v. GMC,  Civ. No. 95-1454  (JHR)
                  Eisenberg v. GMC,  Civ. No. 95-2505  (JHR)
                  Buckley v. GMC,    Civ. No. 95-2503  (SSB)
                  Wohlforth v. GMC,  Civ. No. 95-1032  (JBS)
                  Brophy v. GMC,     Civ. No. 95-500   (MLP)
                  Worth v. GMC,      Civ. No. 95-499   (AET)
                  Marazzo v. GMC,    Civ. No. 95-1476  (AET)
                  Dilks v. GMC,      Civ. No. 95-1471  (MLP)
                  Klosinski v. GMC,  Civ. No. 95-1829  (AET)
                  Koheil v. GMC,     Civ. No. 95-2496  (AET)
                  Lyszczak v. GMC,   Civ. No. 95-2497  (GEB)
                  Ragolia v. GMC,    Civ. No. 95-1474  (MLP)
                  Bodolosky v. GMC,  Civ. No. 95-998   (GEB)
                  Bradin v. GMC,     Civ. No. 95-2975  (JEI)
                  Cardona v. GMC,    Civ. No. 95-2936  (WGB)
                  Kerns v. GMC,      Civ. No. 95-2970  (JHR)
                  Sitko v. GMC,      Civ. No. 95-2973  (JHR)
                  Mascio v. GMC,     Civ. No. 95-2976  (SSB)
                

Because of factual disputes contained in the parties' affidavits and moving papers, the court convened a hearing to inquire into the extent of Mr. London's involvement as GM counsel. Six witnesses testified: (1) Laurie Adams, GM Legal Assistant; (2) Paul Logue, GM Zone Manager; (3) Robert Silverman, Esquire, of Kimmel & Silverman; (4) Craig Kimmel, Esquire, of Kimmel & Silverman; (5) Jay London, Esquire, of Kimmel & Silverman; and (6) Ann Marie E. Musick, Mr. London's former secretary, and the parties submitted over twenty exhibits into the record.¹ Having considered the testimony and exhibits set forth at the hearing, along with the motion papers, briefs, and other submissions of the parties, the following constitute my findings of fact and conclusions of law.

FINDINGS OF FACT

1. Jay M. London, Esquire, is an attorney currently employed by the law firm of Kimmel & Silverman, P.C., in Bluebell, Pennsylvania. He is licensed in both Pennsylvania and New Jersey and has been practicing for approximately eight years. From August, 1988 through March, 1993, Mr. London was employed as an associate at the Philadelphia law firm of George J. Lavin, Jr. and Associates, which subsequently became known as Lavin, Coleman, Finarelli & Gray (the "Lavin firm"). In March, 1993, he left the Lavin firm and joined the firm of Harvey, Pennington, Herting, & Rennelsen ("Harvey Pennington") as a litigation associate. In April, 1994, he left the Harvey Pennington firm and joined the firm of McBreen, McBreen & Kopko (the "McBreen firm"). (London, 9/13/95, at 88-89, 117.) Mr. London resigned from the McBreen firm on May 26, 1995 and joined the firm of Kimmel & Silverman on June 2, 1995. (London, 9/14/95, at 28, 56.)

2. Laurie Adams is employed by General Motors Corporation ("GM") as a legal assistant in Farmington Hills, Michigan. Her department is responsible for handling single vehicle breach of warranty cases, otherwise known as "lemon law" cases. She has been involved in lemon law cases since September, 1988, and her jurisdiction currently covers sixteen states, including New Jersey and Pennsylvania. Her responsibilities include supervising local counsel and managing lemon law cases on behalf of GM. Although Ms. Adams reports to a supervisor, she has the primary authority for selecting local counsel and making decisions regarding the progress of individual cases. (Adams, 8/17/95, at 4-9.)

3. The employees of GM's field offices, called "zone personnel," actively participate and cooperate with local counsel in the litigation of lemon law cases. These zone personnel are individuals with automotive technical background and experience, and, as part of their litigation duties, they review repair records, conduct inspections of allegedly defective vehicles, and provide their analysis and recommendations to GM and local counsel. (Adams, 8/17/95, at 18-19, 89-90.)

4. Kimmel & Silverman, P.C., is a law firm of five attorneys with offices in Bluebell, Pennsylvania and Haddonfield, New Jersey. Since 1991, the firm has engaged almost exclusively in lemon law matters. Robert Silverman, Esquire, and Craig Kimmel, Esquire, are the firm's managing partners. (Silverman, 8/17/95, at 169-70.)

5. GM and Kimmel & Silverman have jointly created an early resolution program in which plaintiff's counsel and GM legal and technical personnel attempt to work out a particular claim prior to a lawsuit being instituted. If a matter cannot be settled, then it is referred to local counsel for litigation. Through this program, approximately half of all claims settle before suit is filed. (Silverman, 8/17/95, at 175-78.)

6. The Lavin firm was designated as local counsel for GM during the time that Mr. London was employed there. From March, 1990 through his departure from the Lavin firm in March, 1993, Mr. London was assigned to work on approximately 25-30 lemon law cases on behalf of GM, all in Pennsylvania. None of those cases involved Kimmel & Silverman as plaintiffs' counsel. (London, 9/13/95, at 92, 104, 106.)

7. Although none of the lemon law cases that Mr. London handled on behalf of GM went to trial, Mr. London had significant responsibilities with respect to the management of individual cases. He propounded and responded to interrogatories and other discovery requests, conducted depositions of plaintiffs, participated in vehicle inspections along with GM zone personnel, and discussed the technical aspects of a case with zone personnel. (London, 9/13/95, at 104, 106-07; 9/14/95, at 8, 87-88; Logue, 8/17/95, at 133.) He arbitrated one case, contacting Ms. Adams for her consent with respect to the arbitration strategy and tactics. (Adams, 8/17/95, at 24.)

He provided opinion letters to GM on individual cases which included his analysis of the facts, his legal opinion as to whether the facts of a particular case met the statutory requirements for a claim for damages, and his advice on what types of defenses should be raised and whether to settle or proceed to arbitration and/or trial. He also orally communicated this information to Ms. Adams on a regular basis. In addition, Ms. Adams discussed with Mr. London information that she had received from other local counsel regarding defense of GM lemon law cases. (London, 9/13/95, at 107, 112; 9/14/95, at 88-89, 90-91; Adams, 8/17/95, at 19-21, 23.)

8. At the time that Mr. London joined the McBreen firm, that firm was not representing GM in any capacity. GM subsequently retained the McBreen firm as local counsel in the Philadelphia area after a meeting was held in August, 1994 at GM headquarters between GM legal staff, including Ms. Adams, and Mr. London and Steven Kantrowitz on behalf of the Philadelphia office of the McBreen firm. One topic of discussion at that meeting was GM's concern over the increasing number of cases being filed by Kimmel & Silverman in the Philadelphia area. (London, 9/13/95, at 117, 119-20; Adams, 8/17/95, at 25-27.)

9. While at the McBreen firm, Mr. London worked on approximately 25-30 GM lemon law cases in which the firm of Kimmel & Silverman represented the plaintiffs. On each particular GM lemon law case, he would initially receive an analysis and recommendation from a GM zone representative. He would then conduct a preliminary evaluation of a particular case, contact Mr. Silverman via telephone or in person to discuss the case, and, if necessary, contact the GM zone representative—usually Mr. Logue — to confirm GM's initial position and/or provide further information that Mr. London had received. He participated in a vehicle inspection on one occasion. He discussed settlement and evaluation of the cases with his supervisor, Steven Kantrowitz, and with Ms. Adams. At Ms. Adams' request, Mr. London coordinated his defense of Kimmel & Silverman's cases with the Lavin firm and attended joint defense committee meetings on behalf of GM in the Philadelphia area. (London, 9/14/95, at 5, 8, 10-11; 9/15/95, at 17; Adams, 8/17/95, at 38-39; Logue, 8/17/95, at 134-35.)

He designed and prepared case information statements which were analogous to the opinion letters he had prepared for GM while at the Lavin firm and which contained his analysis, comments, suggestions, and legal advice and opinions regarding each case. On the top of each of these statements was stamped "Attorney-Client Privilege." He acknowledges that these statements contained privileged and confidential information. He often transmitted these statements to GM, and otherwise communicated with Ms. Adams, through GM's electronic mailing system, to which he was issued a user password. (London, 9/14/95, at 109-11; Adams, 8/17/95, at 30-33.)

10. At some point, GM, through Ms. Adams, provided the McBreen firm with standing settlement authority; Mr. London did not have to contact her to confirm settlement unless the claim for settlement exceeded a certain pre-authorized amount. Under this settlement...