attorney's law partner as an adverse witness, coupled with the mere suggestion that his testimony "may prejudice" the plaintiff-client, was insufficient to support a disqualification under DR5-102(B).
The District Court for the Eastern District of Pennsylvania in Freeman v. Kulicke & Soffa Industries, Inc., 449 F. Supp. 974 (E.D.Pa.1978), held, after discussing the Kroungold decision, that "the moving party bears the burden of demonstrating specifically how and as to what issues in the case the prejudice will occur and that the likelihood of prejudice occurring is substantial." Id. at 978. Defendants in the case sub judice, by merely alleging Mr. Pickett to be a "potential witness" have not demonstrated how Mr. Pickett's projected testimony would or may be prejudicial to his client and have not specified in what respect the prejudice would occur. Having failed to meet the burden required by DR5-102(B), the subsection does not mandate the disqualification of Mr. Pickett as counsel to the plaintiff.
Defendants also seek to disqualify Mr. Pickett based upon the alleged conflict of interest arising out of his former representation of the alleged victim, ICC, and his present representation of the alleged wrongdoer. Such sanction is appropriate "whenever the subject matter of the second representation is "so closely connected with the subject matter of the earlier representation that confidences might be involved.' " Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385 (3rd Cir. 1972) (quoting ABA Informal Opinion No. 1233 (1972)) (emphasis supplied). See American Roller Co. v. Budinger, 513 F.2d 982, 984 (3rd Cir. 1975); Renshaw v. Ravert, 460 F. Supp. 1089, 1092 (E.D.Pa.1978); Baglini v. Pullman, Inc., 412 F. Supp. 1060, 1064 (E.D.Pa.1976), aff'd, 574 F.2d 1158 (3rd Cir. 1978). This is usually referred to as the "substantial relationship" test. It is also well established that "a court may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety." Richardson, supra, 469 F.2d at 1385-86. See United States v. Miller, 624 F.2d 1198, 1202 (3rd Cir. 1980); American Roller Co., supra, 513 F.2d at 984; Renshaw, supra, 460 F. Supp. at 1092; Baglini, supra, 412 F. Supp. at 1064.
Canon 4, which underlies the "substantial relationship" test, provides that "(a) lawyer should preserve the confidences and secrets of a client." Such obligation continues beyond the termination of the attorney's employment. Under this test defendants need not show that Mr. Pickett, did in fact obtain information in the course of the previous representation which is to be used in the present representation; they need only show that Mr. Pickett "might" have acquired substantially related material. Richardson, supra, 469 F.2d at 1385. Although denied by Mr. Pickett, defendants have produced an affidavit stating that plaintiff's involvement in matters related to the charges in the indictment were discussed at an ICC meeting at which Mr. Pickett was present in his capacity as counsel to ICC and as a corporate officer. Thus, defendants have made the requisite showing that Mr. Pickett, through his prior representation of ICC, might have obtained information substantially related to the present representation. Accordingly, to allow Mr. Pickett to continue as counsel to the plaintiff places him potentially in a position to breach confidences owed to ICC in violation of Canon 5.
To prevent the erosion of public confidence in the legal system and the legal profession, "a court may disqualify an attorney for . . . failing to avoid the appearance of impropriety." Richardson, supra, 469 F.2d at 1385-86. This standard in effect enforces Canon 9 which provides that "(a) lawyer should avoid even the appearance of professional impropriety." Most of the cases construing this standard for disqualification are civil cases whereas the present case concerns a criminal prosecution. The plaintiff's liberty is in issue, and plaintiff's choice of counsel, therefore, is entitled to greater weight. The right to choice of counsel, however, even in a criminal context, may be overridden by the need to maintain high standards of professional conduct. A recent Third Circuit decision affirmed a district court's order disqualifying a criminal defendant's attorney on the basis of an appearance of professional impropriety. The appellate court reasoned that disqualification was proper where "an informed and concerned private citizen could conclude that (the attorney's) appearance on behalf of (the criminal defendant) involved a conflict of interest . . . ." United States v. Miller, supra, 624 F.2d 1198 at 1202.
Accordingly, in view of Mr. Pickett's former representation of the alleged victim; his present representation of the alleged wrongdoer who was the president of the victim, while Mr. Pickett was counsel to the victim; and the sworn affidavit stating that Mr. Pickett acquired information concerning the criminal indictment in his capacity as counsel to the alleged victim, it appears that Mr. Pickett has placed himself in the untenable position of serving conflicting loyalties. The result is the appearance of professional impropriety.
Given that Mr. Pickett during the prior representation might have obtained information substantially related to the present representation, coupled with the appearance of impropriety which clouds the case, Mr. Pickett is disqualified from representing the criminal defendant. The Court so concludes even if the sole disputed fact as to Mr. Pickett's presence at an ICC meeting wherein the Davis matter was discussed was resolved as he contends. In all other respects, the facts referred to hereinabove are undisputed based upon this Court's review of the testimony and affidavits submitted during the State court hearing and the hearing before this Court.
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