ORDER GRANTING DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY
Presently before the Court is the defendant’s motion for an order disqualifying the plaintiff’s attorneys from further representation of the plaintiff in this case on the ground that the plaintiff’s attorneys allegedly have a conflict of interest and are otherwise in violation of the code of Professional Responsibility. In response to the defendant’s Motion, the plaintiff argues that there is no conflict of interest or any other ethical basis to justify the disqualification of plaintiff’s attorney, James F. Schaeffer, who has represented the plaintiff, Frank Ellis Lee, in these рroceedings since December 1975.
Both parties agree that on January 30, 1975, the plaintiff employed the defendant, Ben Todd, to represent the plaintiff in a medical malpractice claim which arose from the alleged misapplication of a cast on February 1, 1974. Both parties also agree that the defendant, acting then through attorney Bob Tribble, filed a complaint on January 31, 1975, the last day of the period of limitations, and entered a voluntary dismissal on the same day without causing a summons to issue.
Defendant Ben Todd alleges that priоr to the refiling of that case Mr. Todd associated James F. Schaeffer and thereafter discussed the factual background of the matter with him in December 1975. Neither side disputes the fact that Mr. Todd and Mr. Schaeffer had agreed to divide the responsibility of Mr. Lee’s case on аn 80 percent/20 percent contingent arrangement. Plaintiff’s attorney James F. Schaeffer points out, however, that on December 29, 1976, Mr. Todd made the seemingly contradictory statement that Mr. Todd was “not in any way connected with [that] lawsuit [Lee v. Crenshaw]."
Thereafter, the complaint agаinst Dr. Crenshaw and others, Civil Action No. C-76-34, was filed on January 28,1976, in this Court. The plaintiff’s attorney of record in that case was the Law Offices of James F. Schaeffer and James F. Schaeffer. Mr. Todd, however, sent Mr. Schaeffer a copy of his entire file on February 3, 1976, and apparently reсonfirmed the contingent fee arrangement and division of responsibility.
In the civil action against Dr. Crenshaw (styled Lee v. Crenshaw), Dr. Crenshaw’s defense attorneys responded to the Complaint with a Motion for Summary Judgment, alleging that the Statute of Limitations had not been tolled by the voluntary dismissal. Mr. Todd alleges that he and Mr. Schaeffer conferred from time to time in person, by letter, and by telephone, to discuss the Statute of Limitations question, and they apparently agreed that due to the unique nature of the problem, Mayo Coiner, Professor of Law at Memphis State University, should be brought into the case for assistancе in the legal and factual issues involved with the statute of limitation defense. Subsequently, the defendant herein alleges, attorneys Schaeffer, Coiner, and Todd, discussed the various matters in preparation for the oral argument of the medical defendants’ Motion for Summary Judgment.
Based upon the factual background surrounding the voluntary dismissal of the Cir *630 cuit' Court case and upon the legal issues involved, Schaeffer and Coiner argued before then Chief District Judge Bailey Brown on April 9, 1976. When the motion was granted, an appeal was taken to the United States Court of Aрpeals for the Sixth Circuit. While it is not clear to what extent Mr. Schaeffer himself was involved in the appeal, both Mr. Schaeffer and Professor Coiner were listed as counsel for the plaintiff Frank Lee. On appeal, Professor Coiner advocated that Ben Todd had not acted improperly in the manner by which the Circuit Court case was voluntarily dismissed.
The Court of Appeals remanded the matter to the District Court for certain findings of fact. An evidentiary hearing was held at which Mr. Todd testified. His position was advocated by Lloyd McDougal, an attorney then рracticing in Mr. Schaeffer’s office. At the time Mr. Todd testified, he withdrew from any further involvement in the case since it was apparent that Mr. Todd was going to be a witness in the cause.
After adverse findings and conclusions by the District Court, an appeal was again taken to the Sixth Circuit. Mr. Schaeffer’s firm again appeared as attorney of record for Mr. Todd’s position in the second appeal. On this second appeal, however, the Court of Appeals affirmed the District Court’s action granting the motion for summary judgment, and the case of Lee v. Crenshaw was dismissed.
Mr. Schaeffеr, acting as attorney for Mr. Lee, then filed the instant lawsuit alleging that Mr. Todd had been professionally negligent in his handling of Lee v. Crenshaw. In response to the defendant’s Motion to Disqualify, the plaintiff’s attorney argues that throughout Lee v. Crenshaw he steadfastly represented the interests of his client and that he has owеd loyalty to his client rather than to Mr. Todd. Furthermore, the plaintiff argues that the defendant’s motion has no substantive merit but is motivated by a desire to coerce settlement. As support for this last argument, the plaintiff points to the fact that the instant motion comes over a year after the instant' suit was filed but shortly following refusal by Mr. Lee of offer of settlement by the defendant Todd’s attorney.
In dealing with a Motion to Disqualify, this Court is charged with the responsibility of supervising the members of its bar and, in exercising that responsibility, must consider the American Bar Association Code of Profеssional Responsibility, the duty to maintain public confidence in the legal profession, and the duty to insure the integrity of the judicial proceeding.
United States v. Agosto,
Defendant’s attorney has claimed that Mr. Schaeffer has violated Canons 4, 5, and 9 of the Code of Professional Responsibility, which has been adopted by this Court as part of its Local Rules. The Court notes that Canоns 4 and 5 deal with a lawyer’s conduct with respect to his client(s). Although Mr. Schaeffer has worked with Mr. Todd during part of this litigation, Mr.' Schaeffer has. never had Mr. Todd as a client and, therefore, has never owed to Mr. Todd those various duties a lawyer owes to his client.
There is, however, a possibility that Mr. Schaeffer will be called as a witness in this case. Therefore Mr. Schaeffer is put on notice that he may be in violation of Disciplinary Rule 5-102 which requires a lawyer’s withdrawal as counsel when the lawyer must become a witness and of ethical consideration 5-9 which cautions that a lawyer should not be both advocate and witness in the same case.
Canon 9 of the Code of Professional Responsibility pertains most to the instant case. It forbids that “[a] lawyer should avoid even the appearance of [professional [improрriety.” The ethical considerations *631 explicitly underlying that Canon emphasize that a lawyer should direct his conduct so as to ensure that public confidence in our legal system is not diminished. The disciplinary rules that seek to enforce this Canon dictate that a lawyer should not “[e]ngage in conduct that is prejudicial to the administration of justice” or “. .. in any other conduct that adversely reflects on his fitness to practice law.”
Even if this Court assumes that all of the plaintiff attorney’s arguments are true — namely, that Mr. Schaeffer has owed duties of loyalty to his client rather than to Mr. Todd — this Court cannot ignore the clear appearance of impropriety in this case. In this Court’s opinion, plaintiff’s attorney cannot avoid the appearance of impropriety by having worked with defendant Todd intermittently throughout Lee v. Crenshaw and by now assuming thе position of lead counsel in a suit alleging that Mr. Todd engaged in legal malpractice during a phase of that litigation. The defendant correctly notes that while Mr. Schaeffer did not participate in Lee v. Crenshaw when it was filed in state court, Mr. Schaeffer did subsequently appear аs an attorney of record before this Court and in the Sixth Circuit Court of Appeals to advocate the correctness of Mr. Todd’s actions. Interestingly, if Mr. Schaeffer had himself been successful in those earlier appearances, this lawsuit might not now be before this Court.
Mr. Schaeffer has repeatedly argued before this Court that his actions throughout the evidentiary hearings and appeal in Lee v. Crenshaw were guided by loyalty to his client, Mr. Frank Ellis Lee. This Court notes, however, that shortly after Judge Bailey Brown’s first dismissal of Lee v. Crenshaw on April 9, 1976, and before the first appeal in that case, Mr. Schaeffer wrote a letter to Mr. Lee dated April 14, 1976, in which Mr. Schaeffer suggested to his client that there existed a possible legal malpractice action against Mr. Todd “if the appeal is unsuccessful.” If Mr. Schaeffer had seriously believed a legal malpractice action existed against Mr. Todd at the time Mr. Schaeffer had written his letter, Mr. Schaeffer should not have proceeded with an appeal designed to vindicate Mr. Todd’s conduct. If Mr. Schaeffer had not believed that there existed an action against Mr. Todd for legal malpractice, Mr. Schaeffer should not have written the letter.
The case law arising under Canon 9 indicates that there must be a reasonable possibility that some specifically identifiable impropriety occurred, and this Court must weigh the likelihood of public suspicion against the interest in retaining counsel of one’s choice. See, e.g.,
Church of Scientology of California v. McLean,
Under the case law that has developed enforcing Canon 9 of the Code of Professional Responsibility, Canon 9 may support a Motion to Disqualify еven without proof of actual wrongdoing.
Westinghouse Electric Corp v. Rio Algom Ltd.,
It is troublesome to this Court, however, that the attorney for the defendant in the instant case has filed the motion to disqualify attorney Schaeffer over one year after the suit was originally filed. Indeed, some courts have held that undue delay bars any effort to disqualify the adversary’s counsel.
United States v. Newman,
In the instant case, defendant’s attorney, Kemper Durand, wrote a letter to the Chief Disciplinary Counsel of the Board of Professional Responsibility of the Supreme Court of Tennessee, dated November 24, 1981, regarding possible ethical problems in the instant cаse. On December 3, 1981, Kemper Durand wrote to Mr. Schaeffer regarding possible ethical problems in the instant case. The complaint in this case was filed July 9, 1981; and both sides in this case have indicated that settlement negotiations have been conducted between the pаrties not only prior to the filing of the complaint in this case but also up until the filing of the pending motion. There is no suggestion that the settlement negotiations undertaken in the instant case were not in good faith. Accordingly, if delay in filing a motion to disqualify counsel appears to be rеlated to the progress of good faith settlement negotiations and if it is supported by the record, the motion should not be denied because of laches.
Connell v. Clairol, Inc.,
Following the dictates of the Code of Professional Responsibility in preserving the integrity of our legal system, this Court grants the dеfendant’s Motion to Disqualify. Following DR 5-105(D), this Court must likewise prohibit any other attorney in Mr. Schaeffer’s office from handling this case. In an effort to ensure that the plaintiff himself is not prejudiced by this Order, the Court stays these proceedings until such time that the plaintiff has been able to retain counsel.
IT IS SO ORDERED.