*1 242 hearing evidentiary complete held a Ghan, Mrs. new trial. motion for Cazares, operator, Mrs. the restaurant Blaekmore, em- teller, DePalma, examined
ployer did not court The trial
cross-examined. try may not We discretion. abuse its John- de novo. United States
the facts 464, 90 L.Ed. son, S.Ct. 327 U.S. judgment court the district GREENE B. COMPANY, SINGER Appellant. Jersey, of the State New
No. 71-1835.
United States Court
Third Circuit.
Argued Feb.
Decided March
Rehearing En Banc Denied May 10, 1972. Riker, Debevoise, Dan- R. Dickinson Brown, Newark,
zig,
N. J.
&
Scherer
Roberts,
Stimson,
(Winthrop,
Putnam &
Graves,
Brumbaugh,
&
Donohue
brief),
City,
Raymond,
York
on the
appellant.
Allen,
Simon,
New-
&
David R.
Simon
Goldsmith,
(Richard
New-
ark,
B.
N. brief),
appellee.
ark,
J.,
on the
N.
HASTIE
ROSENN,
*2
regular
service,
judge who
active
and no
THE COURT
OPINION OF
having asked
in the decision
concurred
rehearing,
majority
PER CURIAM:
the cir-
and a
of
for
judges
regular
in
of the circuit
ac-
for unfair com-
instant action
In the
having
not
voted for rehear-
tive service
ing
infringement
petition, patent
and viola-
banc,
by
petition
court en
the
the
laws,
defend-
the
of the anti-trust
tion
rehearing
for
is denied.
Singer
prohibit
to
filed a motion
ant
Milliken,
plain-
Esquire, the
A.
Rankin
DUSEN,
VAN
assisting
attorney,
patent
the
from
tiff’s
plaintiff
grant
ADAMS and
would
the
representatives,
the
in
his
and
petition.
ground
case,
litigation
the
in
Judge, dissenting
ADAMS, Circuit
employ of
Milliken,
the
in
that
while
Denying
Order
Petition for Rehear-
Sur
acquired by
Friden, Inc.,
had
which
been
ing.
assigned by
Singer
had
in
rehearing.
I dissent from
denial of
the
represent
in
to
certain
Friden
Greene
1964-1965,
patent applications
re-
in
From
until
Rankin A. Mil-
subject
specting
the
which
devices
patent attorney
liken was
as a
Agreement
and
Friden
of
between
Singer
an
by the Friden
of
division
the
plaintiff.
the
During
Company.
year
last
of
the
that
duties,
employment, among his other
Mr.
Singer
motion,
con-
support
its
of
assigned
prosecute
Milliken
to
the
applica-
patent
that
of the
tended
some
patent applications of
B. Greene
in
by
involved
Milliken are
handled
tions
with whom the Friden
had en-
division
instant action.
the
agreement
develop-
tered into
for
an
Order
entered an
District Court
The
logic systems.
of
ment
fluid
When Mr.
limiting
of
the role
on June
Friden,
Milliken left
he became Greene’s
representation of Greene
Milliken in his
attorney.
patent
acting
prohibiting
as
him from
but not
pres-
Mr. Milliken was retained in the
appeal fol-
This
for Greene.
co-counsel
litigation
plaintiff’s
ent
to assist
coun-
lowed.
patent aspects
sel on
of
the case. It
un-
are
the records we
review of
On
undisputed
patents
that
of the
some
say
Court
District
to
that
able
in this
involved
suit were the
permissible
in its
discretion
abused its
job
matter of
Friden
at
Order.
patent
prosecuting
he
while was
Greene’s
will
Order
be
The
Although
applications.
the circumstanc-
surrounding
departure
es
Mr. Milliken’s
Judge,
SEITZ,
Chief
subsequent
from Friden and
work
DUSEN,
HASTIE,
extremely complex
Mr.
give
ADAMS, GIBBONS,
ALDISERT,
extenuating
rise to certain
circum-
ROSEN, Circuit
and JAMES
ROSENN
regarding
present represen-
stances
his
tation,
Respon-
of
the Code
that,
sibility,
FOR REHEARING
clear
“Care
ON PETITION
EC4-5 makes
by
pre-
should
exercised
a
to
be
THE
EN
BEFORE
COURT
the disclosure of
vent
confidences
se-
BANC
another,
crets
to
one
and no
client
employment
PER CURIAM:
accepted
should
that
might require
(empha-
such disclosure.”
petition
rehearing
by
filed
(footnote
added)
omitted)
sis
This eth-
Singer Company,
given
appears
ical consideration
to have
Jersey, appellant
the State of status as a rule to ABA
case, having
above entitled
been submit-
part,
(1936),
which reads
judges
participated
ted
to
who
in the
decision of
attorney
accept
this court and to all
other
not
must
“[A]n
judges
available circuit
employment
client
circuit
fessional
ap-
presents what
will,
case
Because
or even
which
client
or a
situation,
unique factual
pears to
abe
use confidential
may require him
le-
important
attorney
an
because
obtained
information
respectfully
gal
implicated, I
ethics is
rela-
professional
of his
in the course
should
suggest
en banc
the court
regarding the
such
tions with
in-
issues
crucial
have considered the
employment
subject matter
particularly
This would seem
volved.
ff
*3
so
present
appropriate
time when
at the
Standing
addition,
Committee
charges
many
concern-
have
made
Bar
American
Ethics
ing
af-
ethical
moral and
considerations
has stated:
Association
fecting the bar.
represen-
lawyer should avoid
“[T]he
against a
party
in a suit
of a
DUSEN
tation
Circuit
may
client,
join
where there
dissent.
interest or
appearance
of a conflict
confidence,
possible
violation
may
though
true
not be
even
at 3
Informal
fact.”
generally,
added).
(emphasis
See
Legal
Drinker,
Ethics 103-129
THOMAS, Jr.,
Walter
Petitioner-
a serious
also clear that
case law is
Appellant,
lawyer
is raised whenever
brings a
represent a
ceases
BETO, Director, Texas De
Dr.
against
And when
that client.
lawsuit
partment
Corrections, Respondent-
deals,
against
former client
the suit
Appellee.
way,
period
any
when
of time
with a
No. 71-2664
lawyer
representing
erst-
was
Summary Calendar.*
that was
or with a matter
while client
United States Court of
consideration while
under
Fifth Circuit.
client,
previous
June
grave.
is even more
Rehearing
July 14,
Denied
noted in Con
As the
Second
Bros. Cir
solidated Theatres Warner
Management Corp.,
“ * * * need The former client show
no than em more the matters pending suit
braced within the where attorney appears
in his former on be adversary substantially
half of his
related to of ac the matters or cause attorney previously
tion wherein the
represented him, the former client.” 924, citing, Corp.
Id. at T. C. Theatre Pictures, Inc.,
v. Warner Bros. F. (S.D.N.Y.1953). Supp. 265, 268
Thus serious doubts arise as to the
priety subsequent rep- of Mr.
resentation of Mil- client,
liken’s former Friden. * al, Cir.; F.2d Rule 5th see Isbell Enter New York et 5th Cir. prises, Casualty Inc. v. I. Citizens Part Co.