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Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co.

March 6, 2007


The opinion of the court was delivered by: Bongiovanni, Magistrate Judge


Presently before the Court is a motion by Defendant Hourly Pension Committee, incorrectly pleaded as the "Trustees of the Retirement Plan for the Hourly Employees of Merck & Co., Inc.," (hereinafter "Defendant" or "Committee") to disqualify Richard E. Shapiro, Esq., (hereinafter "Shapiro") as counsel for pro se Plaintiff Rosann Delso (hereinafter "Plaintiff" or "Delso") and to prevent Shapiro from representing Plaintiff in either a formal or informal manner. Defendant filed its Motion to Disqualify and supporting brief [Docket Entry No. 42] on August 23, 2006 (hereinafter "Moving Brief"). Shapiro submitted a brief in opposition [Docket Entry No. 52] on October 2, 2006 (hereinafter "Shapiro Opposition")*fn1 , and Plaintiff submitted her opposition [Docket Entry No. 53] on October 4, 2006 (hereinafter "Delso Opposition"). Defendant filed its reply brief [Docket Entry No. 57] on October 30, 2006 (hereinafter "Reply Brief"). No oral argument was held pursuant to Fed.R.Civ.P. 78. For the following reasons Defendant's Motion is GRANTED in part and DENIED in part.


The factual information relevant to the instant motion involves two distinct series of facts which culminated in Shapiro "informally assisting" Plaintiff in this matter. For clarity, the Court shall review the factual history of Shapiro's relationship with the Paper, Allied-Industrial, Chemical and Energy Workers International Union ("PACE"), the events leading up to the filing of the Complaint by Plaintiff, and Shapiro's interaction with Plaintiff.

a. Shapiro

In February 1999, Shapiro was retained by the PACE, Local 2-575 ("Union"). (Shapiro Opposition at 5). The Union was based at the Rahway, New Jersey site of Merck & Co. In this capacity Shapiro represented the Union and individual union members in various arbitration proceedings. (Id.). Shapiro also represented the Union in collective bargaining negotiations with Merck and in litigation arising from arbitrations. (Id.). Shapiro never represented other local PACE unions, and in October 2003, he ceased working for the Union. (Id.).

During the course of his representation of the Union, Shapiro interacted with Guy Fleming, ("Fleming"), the Union President and member of the Committee. (Id. at 6). After discussions with Fleming, Shapiro became aware that Fleming was a participant in the management of the Committee. (Id.). Shapiro, however, certifies that he was unaware of the nature of the responsibilities of the Committee or of any matters related to general Committee activities. (Id.). Shapiro also certifies that he never had any discussions with Fleming regarding "any matters relating to [Fleming's] decisions or responsibilities on the Committee" with the single exception of "[Fleming's] decision on Plaintiff's application." (Id. at 7). Further, Shapiro certifies that he never received any confidential information from Fleming regarding Committee activities, and that Fleming never advised Shapiro on any matters related to individual claims. (Id.).

At some point in mid-2001 the Union requested that Shapiro seek information about the application process for disability retirement benefits on behalf of the Union. (Id.). Shapiro asserts that this was a result of the Union members being confused about the application process. (Id.). In seeking information, Shapiro sent a letter to Merck requesting information on the application process for disability retirement benefits. (Id. at 8). Shapiro advised Merck that he was seeking information on the application process on behalf of Fleming and other members of the Union who were participants in the Merck's Hourly Employees Retirement Plan (hereinafter "Retirement Plan").*fn2 (Id.) Shapiro received a response dated May 24, 2001, from Bruce Ellis, Assistant Counsel for Merck Employee Benefits and Executive Compensation, responding to Shapiro's inquiries and noting a potential conflict with Shapiro's representation. (Id. at 8-9). Shapiro asserts that Mr. Ellis's claim of any potential conflict of interest was unwarranted because Shapiro was not representing Fleming as a member of the Committee. (Id. at 9).

b. Delso

Plaintiff is the widow of James Delso (hereinafter "Decedent"), who was an employee of Merck & Co., Inc., at its Rahway, New Jersey facility for over thirty one years, and a participant in the Retirement Plan. (Complaint at ¶ 8). On December 23, 2002, Decedent suffered a heart attack after being hospitalized for pneumonia earlier that day. (Id. at ¶ 10). On December 26, 2002, Decedent passed away while in the hospital. (Id. at ¶ 8). Plaintiff filed paperwork with Defendant seeking disability retirement benefits in the form of a lump sum payment. (Moving Brief at 2). On March 6, 2003, Defendant voted to deny Plaintiff's request. Defendant, subsequently denied Plaintiff's appeal. Shapiro represented the Union when Plaintiff's request and appeal were denied. (Id. at 11). Moreover, Fleming was a member of the Committee when the original claim and appeal were denied and when the instant suit was filed on June 28, 2004. (Id. at 2).

At the date of the filing of the Complaint, Plaintiff was represented by the law firm of Markowitz & Richman (hereinafter "M&R"). (Shapiro Opposition at 9). M&R succeeded Shapiro as counsel for the Union around October 2003, and was continuing to represent the Union when they filed Plaintiff's Complaint. (Id. at 9). In the eyes of Defendant, M&R's representation of Plaintiff was in conflict with its representation of the Union because Plaintiff's interests were "materially adverse" to the interest of the Union members. (Id. at 3). On August 23, 2004, Defendant informed M&R of what they viewed to be a potential concurrent conflict of interest, and the firm withdrew. (Id.)[Docket Entry No. 10]. As a result of M&R's withdrawal, the Court gave Plaintiff the option to either obtain new counsel or to proceed with the action pro se. (Id.). Unable to retain counsel to represent her, Plaintiff made the decision to move forward on her own.(Shapiro Opposition at 9-10).

c. Shapiro's Representation of Delso

Plaintiff was granted time to retain new Counsel between March and June 2005. [Docket Entry Nos. 10-14]. On March 15, 2005, the Court received a facsimile message from Plaintiff, advising that she had "provided Mr. Richard Shapiro, 609-919-1888 with the information about the case and he is reviewing the information to determine if he will take the case or not." (March 15, 2005 Facsimile to Court). Plaintiff also requested the Court's guidance regarding a telephone conference scheduled for March 15, 2005. (Id.). In light of the possibility of Plaintiff retaining Shapiro, the Court adjourned the telephone conference until March 21, 2005 at 9:30 A.M. The March 21, 2005 telephone conference included Plaintiff and Counsel for Defendant. During the telephone conference the Court responded to Plaintiff's March 15, 2005 letter:

COURT: [...] I'm sure [my courtroom deputy] explained to you that we were in contact with [...] Mr. Shapiro, who you had spoken to recently Ms. Delso, to see if you could retain him as counsel...

MS. DELSO: Right....

COURT: ... and apparently he did his conflict search and he does have a conflict, so he indicated that he won't be able to represent you. I don't know if you had an opportunity to talk to him or if this was news to you when we called you today.

MS. DELSO: No. No. I did speak with him on Friday afternoon.

COURT: Ok, what's your game plan?

MS. DELSO: Um ... I am in the process of trying to get another attorney, um..., and...

COURT: Have you talked to someone else already, or do you have another name?

MS. DELSO: Not since Friday no.

COURT: Do you have another name of someone you think you're going to go to?

MS. DELSO: No, I was calling a friend of mine and asking her help.

(Audio Recording of March 21, 2005 Telephone Conference (unofficially transcribed for purposes of this Opinion only)[Docket Entry No. 12]). Delso was afforded additional time to retain counsel. During a telephone conference with the Court on June 20, 2005, Plaintiff indicated that she would be moving forward in this matter pro se. (Audio Recording of June 20, 2005 Telephone Conference [Docket Entry No. 14]). A Scheduling Order was issued on June 20, 2005, setting a briefing schedule for cross motions for summary judgment. [Docket Entry No. 15].

On September 9, 2005, Defendant filed a cross motion for summary judgment. [Docket Entry No. 16]. Plaintiff submitted an unsigned letter dated September 8, 2005, and received by the Court on September 12, 2005, which outlined her position regarding the case. [Docket Entry No. 17-1]. The Clerk of the Court responded to Delso, outlining that letters to the Court must be signed and if the letter was intended as opposition to Defendant's Summary Judgment Motion it should have been titled so. [Docket Entry No. 17-2]. Delso submitted a similar letter on September 20, 2005, titled "Plaintiff's Opposition to Defendant's Summary Judgment Motion". [Docket Entry No. 20]. Soon thereafter, on September 23, 2005, Plaintiff submitted a letter requesting a two week extension to submit an opposition to Defendant's motion. [Docket Entry No. 21]. The District Court granted the extension and Plaintiff filed a Brief in Opposition to Defendant's Motion for Summary Judgment and supporting affidavits. [Docket Entry Nos. 22-28].

Shapiro asserts that soon after Defendant filed its summary judgment motion he was approached by Fleming, who inquired if Shapiro could assist Plaintiff in finding an attorney to help her respond to the motion. (Shapiro Opposition at 10). Although Fleming was a member of the Defendant Committee at the time that Plaintiff's claim was denied, when he approached Shapiro he was no longer president of the Union, nor a member of the Defendant Committee. (Id.) Shapiro agreed to seek out counsel for Plaintiff, but was unable to find appropriate representation and therefore agreed to "informally assist" her with legal research and with the preparation of written submissions. (Id. at 11). Shapiro certifies that he only agreed to provide such informal assistance after Plaintiff repeatedly stated that she had no desire to pursue legal action against the Union, Fleming, or any individual member of the Committee. (Id.).

Subsequently, Delso made several submissions to the court that, according to Defendant, suggested that she was assisted by an attorney familiar with ERISA and general litigation. (Moving Brief at 3). In late October 2005 the parties mutually withdrew their cross motions for summary judgment [Docket Entry Nos. 29 and 30] and a discovery schedule was set. [Docket Entry No. 31]. During a November 3, 2005 Telephone Conference with the Court, Plaintiff advised that she was receiving assitance from Shapiro. [Docket Entry No. 31].

MS. KNEPPER: My client would like to know who is providing counsel for Ms. Delso. She is appearing pro se, but her papers were not written pro se, the issue being that we were on the eve of filing a disqualification application and to the extent that the attorneys are involved in this matter that have a conflict of interest, we believe we have a right to that information.

COURT: Ms. Delso, is there someone that you are conferring with that you want to disclose to us?

MS. DELSO: Sure, right now ... well ... I'm not referring ... He's just giving me help or telling me ... helping me fill out my paperwork because I was very confused, and it is Richard Shapiro.

MS. KNEPPER: I believe and I'll check with my client ... I believe that Mr. Shapiro was one of the attorneys that Mrs. Delso had sought representation from in the past, that did not take the case because of a conflict of interest.

(Audio Recording of November 3, 2005 Telephone Conference (unofficially transcribed for purposes of this Opinion only)[Docket Entry No. 31]).*fn3 The Court then gave Defendant permission to file any necessary motions for disqualification. (Id.). Soon thereafter, Plaintiff filed an Informal Motion to Compel discovery, which was denied on March 30, 2006 [Docket Entry No. 33]. The denial was appealed and remanded.

On June 6, 2006, Defendant received correspondence purportedly from Plaintiff, but signed by another individual. (Moving Brief at 4). This correspondence was sent in an envelope bearing the return address of Shapiro's law office. (Id.). In response, Defendant drafted a letter to Shapiro indicating their displeasure with his behavior and informing him of their intention to bar his participation in the current action. (Shapiro Opposition at 12). Shapiro responded to the Defendant's allegations in a June 12, 2006 letter addressed to the Court in which he confirmed that he had been assisting Plaintiff in this matter. (Moving Brief at Ex. 4).

On August 23, 2006, Defendant filed the instant Motion to Disqualify as a means to have Shapiro barred from assisting or representing Plaintiff in this matter in either a formal or informal capacity. Defendant argues that Shapiro is barred from proving any further legal assistance because his involvement violates The New Jersey Rules of Professional Conduct, and because ...

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