Uniweld Products, Inc. v. Union Carbide Corporation
| Citation | 385 F.2d 992 |
| Decision Date | 29 January 1968 |
| Docket Number | No. 24355.,24355. |
| Parties | UNIWELD PRODUCTS, INC., David S. Pearl and Ephraim Werner, Appellants, v. UNION CARBIDE CORPORATION, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Robert M. McClosky, Miami Beach, Fla., Roger L. Davis, Fort Lauderdale, Fla., Hyman F. Glass, Alexandria, Va., John J. Donnelly, Washington, D. C., for appellants.
Walter J. Halliday, New York City, Darrey A. Davis, Miami, Fla., Nathaniel G. Sims, New York City, Nims, Halliday, Whitman, Howes & Collison, New York City, for appellee.
Before WASHINGTON,* TUTTLE and SIMPSON, Circuit Judges.
Certiorari Denied January 29, 1968. See 88 S.Ct. 853.
This is an interlocutory appeal from the denial by the trial court of a motion entered by the appellants here, the defendants in a suit in the Southern District of Florida, to disqualify a law firm of Miami, Florida, from representing the plaintiff on the ground that such representation offends the ethical standards set out in Canons 6 and 37, of the Canons of Professional Ethics.1
The underlying action here is a suit for trademark infringement and unfair competition brought by Union Carbide v. Uniweld Products, Inc., and its president, David S. Pearl. The claimed disqualification rests upon the prior representations of the present defendants by the firm of Smathers and Thompson in two cases involving claims of patent infringement and unfair competition. In 1959, Union Carbide Corporation (the plaintiff here) filed a complaint charging Uniweld (then known by its previous name, Universal Cutting & Welding Corporation), its President Pearl, and others, charging patent infringement and unfair competition. The defendants retained Honorable David W. Dyer, then a partner in the firm of Smathers, Thompson and Dyer, to represent them. After Judge Dyer's appointment to the bench, the representation was continued by another partner in the firm, Louis S. Bonsteel. A consent judgment was entered in this action in 1960, and jurisdiction was retained by the court for the purpose of enforcing compliance with the judgment. The last activity undertaken by the firm with respect to this suit was the delivery of certain exhibits back to the defendants in September, 1964.
In October, 1962, Pearl consulted the Smathers firm on another matter involving charges of unfair competition being made by the Harris Calorific Company. This matter did not reach the litigation state. Negotiations were undertaken and a conference was eventually held in March, 1963, at which the defendants were represented by Mr. Bonsteel. The record discloses that the correspondence between the parties ended with a letter from Pearl to Harris Calorific dated September 16, 1963. In October, 1964, Bonsteel wrote Pearl that there appeared to be nothing further required in the matter and submitted his statement for services. Pearl paid the statement and in his transmittal letter advised that he had heard nothing from Harris Calorific in over a year and considered the matter closed.
In April, 1966, another partner of the Smathers firm, a Mr. Yancey, was reached by a New York trademark law firm about the possibility of representing Union Carbide in a trademark infringement suit against Uniweld. At that time Pearl was not named to Mr. Yancey as a defendant in the suit, and upon a search of the client index files of the Smathers firm, there was no record of there having been a representation of any company named Uniweld, Inc., it appearing that the index had not been changed to show the change of name from Universal Cutting & Welding Equipment Corporation to the present name. Yancey accepted the representation of Union Carbide.
Several months later the New York firm again got in touch with Yancey and advised him that it had been determined to make Pearl and another officer of Uniweld joint defendants in the case. Yancey obtained their...
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