Harper v. Beacon Air, Inc.
N16C-05-140 RRC
| Del. Super. Ct. | Mar 2, 2017Background
- Plaintiffs sued for a 2014 slip-and-fall at defendant John Harvey’s residence; Travelers insurance covers Harvey’s defense.
- Plaintiffs are represented by Gary Nitsche and Joel Fredericks; Nitsche previously represented Harvey as a plaintiff in an unrelated 2013 automobile-accident matter (handled primarily by associate Samuel Pratcher).
- Harvey moved to disqualify Plaintiffs’ counsel, alleging a conflict because he "likely" discussed the slip-and-fall with Nitsche during the earlier representation, giving plaintiffs’ counsel a confidential "playbook" advantage.
- Plaintiffs’ counsel certified that neither he nor his firm recall Harvey discussing the Harper incident during the prior representation and agreed to screen Pratcher from the case if necessary.
- The court applied Delaware Lawyers’ Rule of Professional Conduct 1.9 and Comment 3, focusing on whether there is a "substantial risk" that confidential information from the prior representation would materially advance the new client’s position.
- The court found Harvey did not meet his burden to show a substantial risk of disclosure or material advantage and denied the motion to disqualify.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior representation requires disqualification under Rule 1.9 | Nitsche: prior case unrelated; no recollection of Harvey discussing the incident; Travelers controls defense | Harvey: likely discussed the incident with prior counsel; counsel gained playbook (settlement philosophy / tactics) that could materially advance plaintiffs' case | Denied — movant failed to show a "substantial risk" that confidential information was disclosed that would materially advance plaintiffs' position |
| Whether "playbook" or tactical knowledge alone warrants disqualification | Nitsche: playbook speculation insufficient; screening offered for Pratcher | Harvey: indirect tactical advantage (settlement approach) justifies disqualification | Court: playbook can matter in limited circumstances but here not shown; Travelers' control of defense also mitigates concern |
| Burden and standard for disqualification | Nitsche: motions disfavored; movant bears burden | Harvey: must be disqualified to protect confidences | Court: movant bears burden; must show substantial risk per Comment 3; Harvey failed to meet it |
| Whether screening (ethical wall) is necessary | Nitsche: offered to wall off Pratcher | Harvey: sought disqualification or wall off only Nitsche/Pratcher | Court: did not need to order screening because disqualification not warranted; note Nitsche’s voluntary offer to screen suffices if invoked |
Key Cases Cited
- Headfirst Baseball LLC v. Elwood, 999 F. Supp. 2d 199 (D.D.C. 2013) (articulates the “substantial risk” test for use of confidential information from a prior representation)
- Webb v. E.I. Du Pont De Nemours & Co., 811 F. Supp. 158 (D. Del. 1992) (discusses tactical/indirect advantages a former counsel may have when opposing a former client)
- Jackson v. Rohm & Haas Co., [citation="366 F. App'x 342"] (3d Cir. 2010) (describes disqualification as an "extreme remedy")