WE Bassett Company v. HC Cook Company
Decision Date | 09 January 1962 |
Docket Number | No. 6532.,6532. |
Citation | 201 F. Supp. 821 |
Court | U.S. District Court — District of Connecticut |
Parties | W. E. BASSETT COMPANY, Plaintiff, v. H. C. COOK COMPANY et al., Defendants. |
Samuel A. Persky, Stoddard, Persky, Eagan & Cobey, New Haven, Conn., John B. Cuningham, Cooper, Dunham, Dearborn & Heninger, Roy C. Hopgood, Mitchell & Bechert, Stewart W. Richards (of Beer, Richards & Haller), New York City, for plaintiff.
Lindsey & Prutzman, Hartford, Conn., William K. Bennett, Ansonia Conn., Craig B. Bright, Richard G. Moser, Patterson, Belknap & Webb, New York City, for defendants.
This action was brought on January 29, 1957. The plaintiff at that time and continuously since that time has been represented by Attorney John B. Cuningham of the New York Bar. Samuel A. Persky, Esquire, of New Haven, Connecticut, a member of the Bar of this Court, entered his appearance for the plaintiff. Attorney Cuningham was granted leave actively to present the case in this court. At that time Mr. Cuningham was a partner in the New York law firm of Davis, Hoxie & Faithful. On September 1, 1958 he became a partner in the New York law firm of Cooper, Dunham, Dearborn & Henninger. From the inception of the case there have been extensive discovery and disclosure proceedings by both parties.
On November 16, 1961, Attorney Cuningham, on behalf of the plaintiff, filed a Rule 34 motion seeking, among other items, the disclosure of the following:
This motion was objected to and in the course of considering briefs, correspondence and arguments, it came to this court's attention for the first time that during the years 1950-53 the defendant, the H. C. Cook Company, had been represented by the firm of Cooper, Byrne, Dunham, Keith & Dearborn, predecessor of Cooper, Dunham, Dearborn & Henninger and had been advised by that firm in patent and trade mark matters, in which H. C. Cook Company was at issue with the Bassett Company, including a Connecticut State Court suit, brought in 1951 and dismissed in 1953, by Bassett against the Cook Company, in which the same claims of unfair competition, based on alleged copying of Bassett's design of fingernail clippers, were raised as they are in the present action. The firm had also represented the H. C. Cook Company during this period on the right of the Cook Company to use the trade-mark "Miniclip" and its right to use the lever-locking device, which, in the present action, Bassett attacks as an infringement of its lug patent.
When Mr. Cuningham joined the firm of Cooper, Dunham, Dearborn & Henninger in 1958, he fully advised his prospective partners of the pendency of the present action, and it was agreed that he would be permitted to continue the case as his own without any participation by the new partners. As a partner in Cooper, Dunham, Dearborn & Henninger, Mr. Cuningham's share of the profits of the firm was unaffected by whatever income he might derive from the present case. Mr. Dunham, who was the partner representing the H. C. Cook Company in 1950-53, is still a member of the law firm. His representation of the H. C. Cook Company was concluded in 1953. Just before Mr. Cuningham joined the firm in September, 1958, Mr. Dunham advised the H. C. Cook Company that Mr. Cuningham was about to join the firm as a partner, and that he individually represented the Bassett Company. With this notification Mr. Dunham returned to the H. C. Cook Company all of the files, concerning the Cook Company matter, which the firm had. In his letter dated August 27, 1958, Mr. Dunham said among other things:
The present case has been conducted by Mr. Cuningham at arm's length from his present partners and there has been no discussion or consultation with any of them concerning the case, except for what has been above mentioned.
The defendants were, of course, fully aware of the fact that Mr. Cuningham had become a partner in a firm which had formerly represented the H. C. Cook Company. However, no objection was raised by the defendants until the plaintiff filed its Rule 34 motion on November 16, 1961, and they now claim that the exploration of the non-privileged matters handled by Attorney Dunham for the H. C. Cook Company in 1950-53 will lead to embarrassment and conflicts of interest and may ultimately require the examination of Attorney Dunham by one party or the other. On this state of facts the court felt that there was a possible disqualification of Attorney Cuningham and, on its own motion, held a hearing on December 4, 1961 at which all parties were represented.
Mr. Cuningham, as counsel for the plaintiff, has decided that it is necessary for the proper preparation of the plaintiff's case that there be disclosed to him the non-privileged contents of the file which Attorney Dunham, Mr. Cuningham's present partner, kept while he represented the defendant, the H. C. Cook Company, concerning some of the identical matters now at issue in the present case. This file includes an opinion given by Attorney Dunham to the H. C. Cook Company concerning some of these issues. Mr. Cuningham asserts that the opinion is available because privilege has been waived. What other...
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