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STEEL v. GMC

December 5, 1995

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



The opinion of the court was delivered by: KUGLER

 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. *fn1" 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 authority, in many cases Mr. London would settle cases and explain the reasons why to Ms. Adams later. Mr. London acknowledges that the process by which this settlement authority is carried out is privileged and confidential information. The significance of this settlement authority is shown by the fact that of the approximately 50 firms in Ms. Adams' jurisdiction that have been retained as GM's local counsel, such standing settlement authority has only been provided to three. (Adams, 8/17/95, at 36-38; London, 9/14/95, at 130-31, 134.)

 11. GM'S "Guidelines for Handling Warranty and Lemon Law Litigation" are provided in confidence to all of GM'S local counsel. Although Mr. London claims that he does not remember specifically if he ever received and reviewed a copy of these guidelines and procedures while at the Lavin or McBreen firms, he does recognize the cover page, and he does remember a "several page document" which he identified as "single vehicle breach of warranty guidelines for local counsel" provided by GM. These guidelines also were discussed during the August, 1994 meeting in Detroit between Ms. Adams and members of the McBreen firm where copies were distributed. Mr. London does not believe that these guidelines contain any information about handling lemon law cases that is not otherwise publicly available, except for internal information about the divisions and organization of GM. He also received information about preparing pleadings in a GM lemon law case and sample evaluation letters that were to be submitted to GM. (London, 9/13/95, at 100-01; 9/14/95, at 9-10, 96, 98-99, 106; Adams, 8/17/95, at 9-10, 28.)

 12. Mr. London became dissatisfied with his employment at the McBreen firm, and he resigned on Friday, May 26, 1995. He testified that in order to protect GM's interests, and with the consent of Mr. Kantrowitz, he felt he should contact plaintiff's counsel, Mr. Silverman, to ask for extensions of time in which to file three answers which were due the week of May 29, 1995. That weekend being the Memorial Day holiday, Mr. London telephoned Mr. Silverman at his beach house on Monday, May 29, 1995, ostensibly to ask for these extensions and to notify plaintiff's counsel of his resignation. (London, 9/14/95, at 12-34.)

 During that telephone call, Mr. Silverman asked Mr. London if he would be interested in coming to work for Kimmel & Silverman. According to Mr. Silverman, the firm needed an experienced litigator to help with the workload of cases against manufacturers other than GM. Mr. Silverman testified that he extended this proposal because he knew Mr. London to be a hard-working attorney from his dealings with him at the McBreen firm. *fn2" (Silverman, 8/17/95, at 183-86.)

 13. As a result of this inquiry, Mr. London conducted some research into his ethical obligations. He consulted the Pennsylvania Rules of Professional Conduct, researched Pennsylvania cases, and contacted a lawyer on the Philadelphia Bar Association Professional Guidance Committee, who told him that Pennsylvania recognizes the use of ethics screens -- or "Chinese walls" -- in situations where lawyers effectively "switch sides." He did no research under New Jersey law. Mr. London concluded that he would not violate his ethical obligations to GM as long as there was a proper ethics screen in place at Kimmel & Silverman to prevent the disclosure of GM confidences. *fn3" (London, 9/14/95, at 37-40.)

 14. On Wednesday, May 31, 1995, Mr. London went to the offices of Kimmel & Silverman to discuss the employment proposal. Earlier that morning, he and his wife had prepared a document that contained the parameters of an ethics screen to be implemented at Kimmel & Silverman. When he arrived at Kimmel & Silverman, he sat down with Mr. Kimmel and discussed the ethics screen and how it would work. Mr. Silverman testified that 99% of the discussion that day centered around the implementation of the ethics screen. The final document containing the operation of the screen was distributed to all of Kimmel & Silverman's employees for endorsement. It is undisputed that no inquiry was made into New Jersey ethics rules. (Kimmel, 8/18/95, at 75, 113; Silverman, 8/17/95, at 186-88; London, 9/14/95, at 43-46.)

 The record indicates that Mr. London left the offices of Kimmel & Silverman that afternoon with an offer of employment. Although Mr. London had equal or less legal experience than the other two associates who then had been working at Kimmel & Silverman for over one year, he was offered a substantially higher salary and a more prestigious placement of his name on the firm's letterhead. *fn4" Mr. Silverman testified that the reason for this was his belief that Mr. London would work harder and longer than the other associates. (Silverman, 8/17/95, at 204-06, 209-10.)

 15. On the morning of June 2, 1995, Mr. London called Ms. Adams at her home and notified her that he had resigned from the McBreen firm and was considering joining Kimmel & Silverman. He attempted to assure her that the interests of GM would be fully protected. Later that day, he sent a disclosure letter to GM via certified mail and faxed a copy to Ms. Adams on June 7, 1995, to which GM did not give its consent or otherwise reply. (London, 9/14/95, at 57, 60-61, 64-65.)

 16. Mr. London reported for work on Wednesday, June 7, 1995 under the supervision of Mr. Kimmel who, along with Mr. London, would work on all lemon law cases that did not involve GM. Mr. Silverman would work on all GM cases, and the ethics screen would purportedly prevent from Mr. London or Mr. Kimmel -- as the managing partner with GM clients -- from having any intentional or inadvertent contact with GM cases.

 Since Mr. London has joined Kimmel & Silverman, he has represented plaintiffs in approximately one hundred lemon law cases against auto manufacturers other than GM. The cases that are the subject of this motion were brought by Mr. Silverman or Michael power, Esquire, a Kimmel & Silverman associate. (London, 9/14/95, at 77; Kimmel, 8/18/95, at 78; Silverman, 8/17/95, at 183, 214.)

 17. The office space of Kimmel & Silverman at Blue Bell, Pennsylvania houses all of the clients' files. The firm leases approximately 10,000 square feet of office space which includes fourteen separate offices and two conference rooms. Each attorney's office locks by a separate key. There are three entrances to the space, each locking with a master key possessed by Mr. Silverman only. (Kimmel, 8/18/95, at 83.)

 As a result of Mr. London joining the firm, Mr. Silverman spent a "significant amount of money" to knock down a wall in his office to create a "sub-office" where all the GM files are housed. The only access to this room is through Mr. Silverman's office. Each GM file is labelled and marked with blue electrical tape on the front for easy identification. There is a sign-out log for anyone removing a GM file. Neither Mr. London nor Mr. Kimmel is allowed in this sub-office or in any other room containing a file marked with the blue GM tape. (Silverman, 8/17/95, at 189.)

 All telephone calls to Mr. London are received first by a receptionist and then by Mr. London's secretary who verify that the call does not involve GM matters. When Mr. Kimmel, Mr. Silverman, and the office manager leave the building, all telephone calls are forwarded to an answering service. Mr. Silverman also receives and reviews all incoming mail before Mr. London sees it. (Silverman, 8/17/95, at 192-95; London, 9/14/95, at 79-80.)

 18. Although the operation of this ethics screen seems straightforward, there are inconsistencies in the witness' testimony with respect to certain incidents which lead this court to conclude that the operation may not always run so smoothly and that the contours of the screen may not be so clear. Mr. Silverman testified that under the ethics screen, he receives all incoming faxes. If he is away for a short period of time during the day, all incoming faxes are placed on his chair to await his return. Under no circumstances are Mr. Kimmel or Mr. London to see any faxed correspondence before Mr. Silverman has had a chance to review it. When asked what happens to the faxes when he goes on vacation, Mr. Silverman responded that there had not been occasion to address that situation as he had not taken a vacation from the time the ethics screen was implemented to the time of the hearing. (Silverman, 8/17/95, at 195, 210-11.)

 Despite this recitation of the fax procedure in place under the ethics screen, the court was presented with a document dated July 11, 1995 which Mr. Kimmel signed on behalf of a plaintiff in a lemon law case. The document accepted a settlement offer in a pre-suit case against GM. (Def. Ex. 3.) When asked how it could have happened that Mr. Kimmel signed his name on a GM matter, Mr. Kimmel responded that it was included in a packet of documents that he had received via telefax, not from GM, but from the Better Business Bureau, that a quick response was required, and that Mr. Silverman was on trial. Mr. Kimmel testified that he neither looked at the file nor consulted with the client. (Kimmel, 8/18/95, at 79-87.)

 When Mr. Silverman was asked whether this constituted a violation of the ethics screen, he responded that the letter should not have been written, that it was a violation of the firm's policy, and that if it had been done by one of the firm's employees, that employee would be reprimanded and subject to termination for a second violation. (Silverman, 8/17/95, at 223, 225.) He testified:

 
There is no excuse for this. He should not have written this letter. I could look into it to see why he wrote the letter but that still wouldn't give an excuse. He shouldn't have written the letter, and he will be talked to.

 (Silverman, 8/17/95, at 226.)

 During the next day's testimony, however, Mr. Silverman's position changed:

 
If I testified that there was a breaching of the wall, I mis-spoke. There was in my opinion a violation of our firm administrative policy with regard to the segregation of cases. But at no time has there ever been a violation of or a breach of the actual screening procedures or of the wall.

 (Silverman, 8/18/95, at 21.) According to Mr. Silverman's clarified testimony, the assignment of GM files to Mr. Silverman and non-GM files to Mr. Kimmel is an administrative decision only and is not a component of the ethics screen, despite its incorporation into the screening document prepared by Mr. Kimmel and Mr. London. (Silverman, 8/18/95, at 21; Resp. Br. Ex. G.)

 Further questions by the court prompted the following dialogue:

 
THE WITNESS: My testimony yesterday -- after I looked into it and looked at the file, I think he had to do that to protect (the client's) interest. The offer would lapse, and I was on trial.
 
THE COURT: The question I had, did you think it was wrong for him to have sent that letter marked Exhibit D-3?
 
THE WITNESS: I believe that it was -- he had to do it, but I ...

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