ORDER
This mаtter is before the Court on Plaintiffs Motion to Disqualify Defendant’s Counsel (doc. 4), Defendant’s Response (doc. 15), Plaintiffs Reply (doe. 21), Defendant’s Sur-Reply (doc. 27), Plaintiffs Response to Defendant’s Sur-Reply (doc. 28), and Plaintiffs Notice of Supplemental Authority in Support of Plaintiffs Motion to Disqualify (doc. 29). The Court, for the reasons more fully stated below, finds that the facts of this case militate against disqualification of Defense Counsel.
I. BACKGROUND
This action is about a quantity of specially-fabricated goods, castings, that Plaintiff аlleges Defendant ordered but for which Defendant refuses to pay, denying the alleged order. The present dispute before the Court, however, is whether the Court should disqualify Defense Counsel for allegedly violating DR 5-105, DR 4-101, and ethical considerations of the Ohio Code of Professional Responsibility by representing Defendant Maytag Corporation, d/b/a Searcy Laundry Products,
Plaintiffs motion attempts to apply the well-established precedent on attorney disqualification to a factual situation of first impression before this Court. This case is not the classic case where a lawyer leaves a firm and her knowledge is imputed to the transferee firm, which can be disqualified.
Kala v. Aluminum Smelting & Refining Co., Inc.,
SST had for many years been represented by the firm of Thompson Hine LLP (“Thompson Hine”) until December 31, 2001, when a former partner of Thompson Hine, Barbara Schwartz Bromberg, left Thompson Hine, taking substantially all of SST’s legal work with her to her new firm, Dinsmore and Shohl (“Dinsmore”). In order to accommodate SST, Ms. Bromberg, and Dinsmore, Thompson Hine kept three SST matters: one that settled; a second that Dinsmore could not accept due to a conflict, (which was subsequently handed on to other counsel); and a third, an import tax refund complaint that Ms. Brom-berg had funneled through Karyn Booth, a partner in Thompson Hine’s Washington D.C. office. That final matter was held in abeyance by the U.S. Court of International Trade, pending resolution of a test case selected to resolve the merits of the challenge to the Harbor Maintenance Tax as applied to imports. The Parties inform the Court that in August 2002, the International Trade Court resolved the test case, in a manner against the interests of SST, and SST states that it intends to join in an appeal of that decision,
Thomson Multimedia, Inc. v. United States,
II. THE LEGAL STANDARD
A motion to disqualify counsel is the proper method for a party to bring an alleged breach of ethical duties to the court’s attention.
Kitchen v. Aristech Chemical,
The Sixth Circuit has noted that the reality of the changing nature of legal practice “must be at the core of the balancing of interests necessarily undertaken” when courts consider motions for disqualification of counsel.
Manning v. Waring, Cox, James, Sklar, and Allen,
Perhaps these motions have become more numerous simply because the changing nature of the manner in which legal services are delivered may present a greater number of potential conflicts. Certainly, the advent of law firms employing hundreds of lawyers engaging in a plethora of specialties contrasts starkly with the former preponderance of single practitioners and small firms engaging in only a few practice specialties. In addition, lawyers seem to be moving more freely from one association to another, and law firm mergers hаve become commonplace. At the same time that the potential for conflicts of interest has increased as the result of these phenomena, the availability of competent legal specialists has been concentrated under fewer roofs.
Id. at 225.
Southern District of Ohio Local Rule 83.4 provides that the Model Federal Rules of Disciplinary Enforcement govern the supervision of attorney conduct for those admitted to practice before the Southern Distriсt as well as those admitted for a particular proceeding (pro
hac
vice). S.D. Ohio Local Rule 83.4(f). Model Rule IV in turn adopts the forum state’s code of professional responsibility and conduct.
Kitchen,
The particular rules Plaintiff puts at issue in this case are Disciplinary Rules 5-105 and 4-101. Disciplinary Rule 5-105, specifically relates to concurrent employment, stating “[a] lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client.” Ohio Code of Professional Responsibility DR 5-105(B). In the case that a lawyer’s independent professional judgment is likely to be affected, a lawyer still may represent multiple clients if “he can adequately represent the interest of each” and if each client consents after full disclosure of the possible affect on the lawyer’s independent professional judgment. DR 5-105(C). DR 4-101 essentially forbids a lawyer from knowingly revealing a confidence or secret of his client, or from using a confidence or secret to the disadvantage оf his client, or for advantage of himself or a third person without consent of the client. DR 4-101(B). It also defines “secret” as “information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” DR4-101(A).
The
Dana
substantially-related test, however, is not applicable to a case where an attorney undertakes employment against a current client.
Pioneer-Standard,
III. ANALYSIS
For the sake of clarity, the Court will consider separately the arguments for disqualification of Defense Counsel based upon its past relationship with SST, first, and then upon its current relationship, second.
A. SST Has Not Demonstrated that Its Past Relationship With Thompson Hine Meets the Second and Third Prongs of Dana
Plaintiff argues that a past attorney/client relationship exists between SST and Thompson Hine thus establishing the first prong of the Dana test (doc. 4). As recently as May 2002, one or more attorneys of Thompson Hine’s Cincinnati office represented SST in the Court of Common Pleas of Hamilton County, Ohio, in SST Bearing Corp. v. Pulliam Enterprises, Inc., Case No. A 0004739 (Id.). Plaintiff argues that it believes that over the course of its long-term relationship with Thompson Hine, that the law firm acquired confidential information and documents that would adversely affect Plaintiff in the current litigation (Id.).
Defendant responds that disqualification is a drastic measure unsupported by the facts in this case (doc. 15). Defendant explains that Thompson Hine’s longstanding relationship was administered by former partner, Ms. Bromberg, who left
Defendant argues that Plaintiff has not shown how that as a result of now-concluded representation, Thompson Hine has confidential information that would be relevant to this case
(Id.).
Defendant argues, therefore, that under the
Dana
test, Plaintiff cannot establish the second or third prongs: a substantial relationship between the matter comprising the past relationship and the current matter, and confidential information of the movant acquired by the attorney sought to be disqualified
(Id.).
Defendant argues under
Phillips v. Haidet,
In reply Plaintiff produced copies of three recent cases in which Thompson Hine represented SST, that involved allegations, as in this ease, of breach of contract (doc. 21).
Defendant’s Sur-Reply (doc. 22) further argues that SST, despite its production of breach of contract cases, has still failed to show any substantial relationship between those cases and the present one because Plaintiff has not shown what legal issues were involvеd or how they were the same or identical to the case at bar (Id.). Plaintiffs response to Defendant’s Sur-Reply (doc. 28) argues that by showing three cases involving breach of contract, it has indeed shown a substantial relationship between the prior relationship that is in conflict with the current representation (Id.). Plaintiff also posits that Ms. Bromberg did not personally litigate SST cases, but that other attorneys at Thompson Hine were involved in interviewing witnesses, reviewing documents, and discussing litigation strategies (dоc. 21). Plaintiff argues that if the Court requires an even greater showing of a “substantial relationship” such inquiry should be conducted by an in camera examination, or risk improperly revealing work product to Defendant (Id.).
The Court finds persuasive Defendant’s arguments that Thompson Hine’s past representation of SST does not meet the second and third prongs of
Dana.
The simple fact that a law firm has represented a client in garden-variety contract disputes, does not mean that when the client chooses reprеsentation by another firm, the client has veto power to block its former firm from representing an adverse party in yet another garden-variety contract dispute. Under this theory a client could strategically hire a number of firms to represent its general interests and then block all adversaries from accessing representation from those firms. The Court rejects this view as inconsistent with the public interest and the purpose of the Code of Professional Responsibility. SST has not shown how it has any рatented trade secrets or other information that
Case law from around the country further indicates that many courts have rejected motions to disqualify based upon an attorney’s background information or familiarity of the workings of a cоrporation.
In re Chantilly Construction Corp.,
Additionally, the Court notes that to disqualify Thompson Hine in this case would be patently unfair. Thompson Hine has represented Defendant Maytag for at least three years. It would not be fair to force Maytag to find other representation because its adversary SST was a former client of Thompson Hine generally and in contract disputes. Nor would it be fair for a lawyer who has left a firm to advocate disqualification of her former colleagues on the basis of their representation of a client, when the lawyer who left essentially took the client with her. SST is thus attempting to convert legal principles intended to shield it from impropriety into a sword to attack its adversary Maytag, in the absence of impropriety. Such attack is not well-countenancеd by this Court.
B. Thompson Hine Has Rebutted The Presumption Against Concurrent Representation
Defendant posits that the only arguably “current” representation of SST Castings, the import tax refund case that went into abeyance before Ms. Bromberg left the firm, is very limited, and does not violate the firm’s duty of loyalty to any client
(Id.).
Defendant urges the Court to consider the approach taken by Judge Patricia A. Gaughan, of the United States District Court for the Northern District of Ohio, who found no current-client conflict of interеst in
Pioneer-Standard,
Defendant argues that just as the Northern District of Ohio found the regulatory matter in
Pioneer-Standard
to be a discrete matter that presented no conflict of loyalties, so this Court should find the tax refund case in abeyance (until recently)
Plaintiffs attempt to distinguish
Pioneer-Standard
on the basis of the lack of long-term relationship between Counsel and the adverse client in that case is not persuasive. The relevant consideration in
Pioneer-Standard
is that of loyalty not length of representation. Specifically,
Pioneer-Standard
states that concurrent representation passes muster when the attorney/law firm can represent adverse clients concurrently with equal vigor, without conflict of loyalties and without using confidential information to the detriment of either client.
Plaintiff also raised the issue of consent in its Reply and Sur-Reply (docs. 21
&
28). Plaintiff cites
Jacobs v. Michael,
Case No. C-3-89-288,
Pioneer asserts that “absent consent by both clients to the conflict, the adverse representation is to be declined; if it is not, then the law firm must be disqualified.” Apparently, Pioneer believes there is a pеr se rule against adverse representation, unless the clients consent. However, this Court finds Pioneer’s argument to be a misreading of DR 5-105. DR 5-105 is framed in such a way that if there is a violation of DR 5-105(b), that violation can be cured under DR 5-105(C) if the clients consent and it is obvious that the attorney can represent both adequately. However, the analysis must start with whether there is a violation of DR 5-105(B) because if there is no violation, there is no need for consent.
Furthermore, this Court finds Pioneer’s reliance on Picker as evidence of a per se rule against adverse representation misplaced. When Picker was decided, DR 5-105(B) read: “A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would likely to involve him in representing different interests.”670 F.Supp. at 1365 n. 3 (emphasis added). This last phrase has been removed from DR 5-105. Thus, when Picker was decided, simply representing differing interests constituted a violation of DR 5-105, but now there is only a violation if the attorney’s “independent professional judgment.. .will be or is likely to be adversely affected.”
Finally, Plaintiff signals to the Court its own precedent, in
Cincinnati Bell v. Anixter Bros.,
Defendant posits that Anixter can be distinguished on the grounds that it involved a sister corporation, and the Court found that a law firm’s simultaneous adverse representation of sister corporations could have an adverse impact on the corporate parent (doc. 15). Defendant argues that this case involves no sister corporation nor any facts showing that simultaneous representation could have an adverse impact on the financial health of a parent corporation (Id.). The Court does not find this argument persuasive. However, the Court does find two facts that clearly distinguish the present case from Anixter.
The first fact is that the concurrent representation in
Anixter
did not involve a client who had essentially left an incidental matter with Frost
&
Jacobs, while basically taking all its business elsewhere. The second fact is that Frost
&
Jacob’s representation of Itel Rail, the sister subsidiary to Anixter Brothers, Incorporated, in the
Anixter
case, involved “sizeable business litigation.”
The facts of this case are on point with those of
Pioneer-Standard
rather than those of
Anixter.
Consequently, Thompson Hine has demonstrated that its Washington D.C. attorney, Karyn Booth, can represent SST Bearing as co-counsel with Ms. Bromberg in the U.S. Court of International Trade appeal while its Cincinnati counsel concurrently represent Maytag in the case at hand. The Court is convinced
IV. CONCLUSION
The Court finds an inadequate basis for disqualification of Defense Counsel in this case. SST has not demonstrated how Thompson Hine’s former representation is substantially related to the matter at hand nor how that confidential information is at risk. Thompson Hine has successfully rebutted the presumption against concurrent representation. In addition to these reasons, the Court finds that disqualification in this case would be inherently unfair to the Defendant, Maytag, who has also had a longstanding relationship with Thompson Hine. In simplest terms, Plaintiffs motion appears to the Court to be more a litigation tactic than a bona fide effort to protect itself from a real threat of a conflict of interest or breach of confidentiality. SST chose to take its legal business elsewhere and does not possess veto power over Thompson Hine’s ability to serve its other clients.
Consequently, Plaintiffs Motion for Disqualification of Defendant’s Counsel is DENIED.
SO ORDERED.