Trinity Amb. Serv. v. G & L AMB. SERV.

• Decision Date: 23 January 1984
• Docket Number: Civ. No. H 82-969.
• Court: U.S. District Court — District of Connecticut
• Parties: TRINITY AMBULANCE SERVICE, INC. and Aetna Ambulance Service, Inc. v. G & L AMBULANCE SERVICES, INC., the City of Hartford, L & M Ambulance Corp., and Professional Ambulance Service, Inc.

578 F. Supp. 1280

TRINITY AMBULANCE SERVICE, INC. and Aetna Ambulance Service, Inc. v. G & L AMBULANCE SERVICES, INC., the City of Hartford, L & M Ambulance Corp., and Professional Ambulance Service, Inc.

Civ. No. H 82-969.

United States District Court, D. Connecticut.

January 23, 1984.

Eliot B. Gersten, Alan W. Koerner, Gersten & Gersten, Hartford, Conn., for plaintiff Trinity Ambulance Service, Inc.

Sidney T. Schulman, Hartford, Conn., for plaintiff Aetna Ambulance Service, Inc.

Morton W. Appleton, Bromberg & Appleton, Hartford, Conn., for defendant Professional Ambulance Service, Inc.

Dennis L. Pieragostini, Office of Corp. Counsel and Theodore Tucci, Robinson, Robinson & Cole, Hartford, Conn., for defendant City of Hartford.

RULING ON MOTIONS TO DISQUALIFY COUNSEL

JOSE A. CABRANES, District Judge:

This is an action challenging the method by which the City of Hartford directs requests for emergency ambulance services to private companies. Plaintiffs contend that the designation of two private firms as "sole providers" of emergency ambulance services within the city violates federal and state antitrust laws.

Plaintiff Trinity Ambulance Service, Inc. ("Trinity") has filed a motion, supported by plaintiff Aetna Ambulance Service, Inc. ("Aetna"), requesting that counsel for Professional Ambulance Service, Inc. ("Professional"), initially a plaintiff and now a party defendant in this action, be disqualified. Trinity's disqualification motion is premised on the contention that Professional's counsel was privy to confidences and secrets of Trinity during the period, prior to realignment of the parties, when Aetna, Trinity and Professional were all plaintiffs in two consolidated actions challenging the city's policy. Professional has responded with a motion to disqualify Trinity's counsel. Professional asserts that its relationship to Trinity's counsel is a "mirror image" of the relationship of Professional's counsel to Trinity, hence if Professional's counsel is to be disqualified, then Trinity's counsel must be disqualified as well.

At a hearing held December 5, 1983, a number of facts relevant to the pending disqualification motions were established. Eliot Gersten, Trinity's counsel, stated that he had had conversations with Harvey Kagan, a principal and officer of Professional, see Certified Official Transcript of Hearing Held December 5, 1983 (filed Dec. 20, 1983) ("Tr.") at 5-6, and Morton Appleton, Professional's counsel, stated that he had talked directly with principals of Aetna, and possibly with those of Trinity as well, id. at 14-15; see id. at 6, 23. The parties jointly retained an expert witness to assist in the prosecution of their antitrust claims, and they are each in possession of a copy of his report. Id. at 7-8, 19. Aetna, Trinity and Professional also had an informal agreement whereby other costs of litigation, including transcripts, subpoenas, photocopying and sheriff's fees, were shared. Id. at 7-8, 12, 19. Sometimes these costs were paid on a rotating basis by one or another of the parties, see id. at 8, and sometimes bills were sent from Gersten's office to Aetna and Professional requesting reimbursement for their share of expenses incurred, see id. at 12. Fees for legal work were paid only by each party to its counsel of record. Id. at 11-12, 21. Business records and other potentially confidential documents, other than those produced in the course of discovery, were not exchanged between the parties to these motions. Id. at 9-10, 19-20. However, the work product of the attorneys was circulated. Id. at 12, 18-19, 21. Finally, Gersten and Appleton stated that they each had "open access" to litigation files of the other and that Appleton had worked on the case for some period of time out of Gersten's offices. Id. at 12-13, 15-16.

I.

Thirty years ago, Judge Weinfeld enunciated the general test for deciding disqualification motions involving the successive representation of adverse parties by a single attorney, the situation most closely analogous to the one presented here. In T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F.Supp. 265 (S.D.N.Y.1953), the defendant, a motion picture distributor, moved to disqualify counsel for the plaintiff, a theatre operator, because the attorney had previously represented the defendant in an antitrust action instituted by the United States arising out of the same alleged conspiracy to restrain trade in the motion picture exhibition industry that formed the basis of the plaintiff's complaint. In order to have the attorney disqualified, Judge Weinfeld held,

the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature or extent.

Id. at 268 (emphasis in original).¹ Disqualification in such circumstances functions to "prevent a lawyer from consciously or unconsciously using or manipulating a confidence acquired in an earlier representation and then transforming it into a telling advantage...." Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir. 1973); see Model Code of Professional Responsibility, Canon 4 (1980) (requiring "preservation of the confidences and secrets of a client");² Model Rules of Professional Conduct, Rule 1.9 (1983) (restating the substantial relationship test).³

This case does not involve successive representation of adverse parties in the ordinary sense, because the adversity of interests arose during the pendency of a single litigation and because the attorneys who are targets of the disqualification motions continue to represent the same clients. Unlike the typical situation giving rise to a disqualification motion of this sort, it is a client, not an attorney, who has "changed sides." See Allegaert v. Perot, 565 F.2d 246, 251 (2d Cir.1977); Interstate Properties v. Pyramid Co., 547 F.Supp. 178, 182 (S.D.N.Y.1982). The question arises whether the concern for preserving confidences and secrets which underlay T.C. Theatre Corp. and its progeny mandates application of the substantial relationship test to the largely distinguishable facts of this case.

II.

Recent decisions of our Court of Appeals have indicated that disqualification under Canon 4 is justified only when necessary "to preserve the integrity of the adversary process" and to eliminate the possibility that use of confidential information will "disturb the balance of the presentations" and thereby "taint the underlying trial," Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979); see, e.g., Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir.1981) (Newman, J.) ("disqualification ... should ordinarily only be granted when a violation of the Code of Professional Responsibility poses a significant risk of trial taint"); Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir.1980) (en banc), vacated on other grounds and remanded, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981); W.T. Grant Co. v. Haines, 531 F.2d 671, 678 (2d Cir.1976).⁴ The unwillingness to disqualify attorneys solely on the basis of Canon 9 of the Code of Professional Responsibility, which instructs lawyers to avoid "even the appearance of professional impropriety,"⁵ is grounded on a recognition of the "immediate adverse effect of disqualification on the client by separating him from counsel of his choice," Board of Education v. Nyquist, supra, 590 F.2d at 1246; see Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-740 (2d Cir.1978). Disqualification of attorneys during the course of litigation may also exacerbate the existing perception that judicial procedures are slow and overly dependent on technicalities.⁶ Moreover, courts have recognized that disqualification motions "are often interposed for tactical reasons" and inevitably result in delay. Board of Education v. Nyquist, supra, 590 F.2d at 1246.⁷ Accordingly, "although Canon 9 dictates that doubts should be resolved in favor of disqualification, it is not intended completely to override the delicate balance created under Canon 4 and the decisions thereunder." Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., supra, 518 F.2d at 757 (citation omitted).⁸

III.

Turning to the applicability of the substantial relationship test of T.C. Theatre Corp. to these motions, the court must determine, as a threshold matter, whether an attorney-client relationship existed between Professional's counsel and Trinity and between Trinity's counsel and Professional. As a general proposition, it is well-established that "the duty to preserve confidences and secrets only attaches when an attorney-client relationship exists...." Premium Products Sales Corp. v. Chipwich, Inc., 539 F.Supp. 427, 433 (S.D.N.Y. 1982); see also In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 90 (5th Cir.), reh'g denied, 536 F.2d 1025 (1976); American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1129 (5th Cir.1971).

In Westinghouse Electric Corp. v. KerrMcGee Corp., 580 F.2d 1311 (7th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978), the Court of Appeals outlined a subjective approach to determining the existence of an attorney-client relationship for purposes of disqualification motions. Id. at 1319-1320; see Liebman, The Changing Law of Disqualification: The Role of Presumption and Policy, 73 Nw.U.L.Rev. 996, 1031-1043 (1979). "Under this approach, the court looks to the nature of the work performed and to the circumstances under which the confidences were divulged." Developments in the Law—Conflicts of Interest in the Legal Profession, 94 Harv.L.Rev. 1244, 1321-1322 (1981)...