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AMATUZIO v. GANDALF SYS. CORP.

July 5, 1996

DOLORES AMATUZIO, et al., Plaintiffs
v.
GANDALF SYSTEMS CORPORATION, GANDALF TECHNOLOGIES, INC., and INFOTRON SYSTEMS CORPORATION, Defendants; WILLIAM F. CHAMBERS, et al., Plaintiffs v. GANDALF SYSTEMS CORPORATION, GANDALF TECHNOLOGIES, INC. and INFOTRON SYSTEMS CORPORATION, Defendants



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 I

 Defendants move to disqualify plaintiffs' counsel, Mattioni, Mattioni & Mattioni ("Mattioni"), on the ground that one plaintiff, Vincent Messina ("Messina"), has disclosed to Mattioni confidential communications between the defendants and their attorney. Defendants further allege that this disclosure violated the rules of ethics and the attorney-client privilege. Because we hold that plaintiffs' counsel breached no rule of ethics or duty of confidentiality, the motion to disqualify will be denied.

 We note at the outset that the attorney-client privilege is a rule of evidence more than a rule of ethics, and we are not now being asked to rule on the admissibility of a particular confidential communication. Nevertheless, when an attorney learns of communications between the adverse party and the adverse party's attorneys -- communications which might be protected by the attorney-client privilege -- it is proper to consider whether there has been a violation of RPC 4.2 or RPC 4.4 *fn1" RPC 4.2 forbids an attorney from communicating directly with a party whom he knows to be represented by counsel, while RPC 4.4 enjoins attorneys from using "methods of obtaining evidence that violate the legal rights" of third parties. *fn2"

 A finding that an attorney has violated a particular ethical rule does not automatically require disqualification. The court's first concern is the integrity of the litigation process, not the disciplining of attorneys. However, because the right of a client to communicate confidentially with his attorney goes to the very core of the litigation process, the court can disqualify an attorney if necessary to protect this fundamental value.

 II

 The plaintiffs are former employees in the Cherry Hill, New Jersey, office of defendant Gandalf Systems Corporation ("GSC"). They claim that their termination violated the WARN Act, 29 U.S.C. § 2101 et seq., and that severance benefits under a long-existing plan were reduced in violation of ERISA, 29 U.S.C. § 1001 et seq., or applicable state law. One of the plaintiffs is Messina, who was GSC's Director of Human Resources.

 In early January of 1994 GSC began planning a major reduction of personnel in its Cherry Hill office. As part of the planning process GSC also considered what severance would have to be paid to terminated employees. Specifically, there was to be an evaluation of whether GSC could decrease the severance benefits provided for in a plan used years earlier by GSC's predecessor corporation, Infotron Systems Corporation ("Infotron"). The person charged with downsizing was Jeffrey Singer ("Singer"), the Director of Human Resources for GSC's parent, Gandalf Technologies, Inc. ("GTI"). Messina reported to Singer, who would be making the final recommendation to the board of directors. GSC also sought legal advice and retained for this purpose Obermayer Rebman Maxwell and Hippel ("Obermayer"). James Penny, Jr. ("Penny") was one of the Obermayer lawyers who worked on the case.

 On January 7, 1994, a meeting was held to discuss and consider the legal ramifications of the proposed layoffs and a possible reduction in severance benefits. Messina, Singer and Penny were present. While the record does not reflect everything that was said at that meeting, it seems clear that Messina was present primarily to provide information to Singer and Penny, particularly as to the existence and terms of the Infotron severance plan and whether it had been adopted by GSC. In his deposition Singer testified that at the meeting of January 7 he reached an understanding that GSC had, in fact, been following the Infotron severance plan. Deposition of March 19, 1996, p. 30, lines 15-22. Defendants also contend that subsequent to January 7 Messina participated in other conversations with counsel and received copies of written communications to and from Obermayer.

 Messina was not the corporate officer charged with making the decision as to whether to close the Cherry Hill office, whether to make a reduction in force, how large a particular layoff would be, the timing of the layoffs or the reduction in severance pay. He may have provided factual and historical input, but Singer and his superiors made the final decisions. Indeed, Messina lost his job when the office closed, and received reduced severance as a result of GSC's amendment of the Infotron severance plan. Even with respect to the first round of terminations made in the middle of January it was Singer and his superiors who made the final decision, although Messina may have selected the particular individuals to be let go. Deposition of March 19, 1996, p. 16, lines 11-23

 The defendants have not challenged the following description of the manner in which Messina became a plaintiff in the already pending suit against defendants:

 
During discovery in the initial litigation, the Mattioni firm spoke with Mr. Messina by telephone when attempting to coordinate a convenient date to take his deposition. During these telephone calls, the Mattioni firm did not discuss with Mr. Messina any aspects of the facts of this case or the underlying dispute. After several unsuccessful attempts to establish and confirm a deposition date, plaintiffs notice the deposition of Mr. Messina and served him of March 15, 1996, with a subpoena directing him to appear for deposition on March 19, 1996, at the Mattioni firm's Philadelphia office.
 
On the evening of March 18, 1996, Vincent Messina called the Mattioni firm and said he wished to be a plaintiff in the action and wanted the Mattioni firm to represent him. The ...

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