PETERSON et al v. WOLFINGTON et al, No. 2:2015cv05030 - Document 131 (E.D. Pa. 2017)
Court Description: MEMORANDUM AND OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 2/23/17. 2/24/17 ENTERED & E-MAILED.(fdc)
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PETERSON et al v. WOLFINGTON et al Doc. 131 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ERIK PETERSON, et al Plaintiffs, v. SEAN WOLFINGTON, et al Defendants. : : : : : : : CIVIL ACTION NO. 15-cv-0 50 30 -GAM MEMORAN D U M Plaintiffs have filed a m otion to com pel answers to their third request for production of docum ents. Doc. No. 125. These requests seek copies of attorney representation and fee agreem ents between the defen dants’ counsel, Marshall Dennehey Warner Colem an & Goggin, and a num ber of individuals, including the defendants. Doc. No. 125-2, at 2-3. Plaintiffs allege that the burdens attendant on production of the docum ents is m inim al, the docum ents are relevant to the controversy between the parties, an d the docum ents are not privileged. Doc. No. 125-1, at 3-4. The defendants have objected to these requests for a variety of reasons, in cluding that they are of m arginal relevance to the parties’ controversy, are protected trade secrets, are sought in order to “tarnish counsel with the specter of im propriety for having conflicts of interest,” and are not “proportional to the needs of the case.” Doc. No. 126, at 2-3 (citing to Fed. R. Civ. P. 26(b)(1)). Plaintiffs argue that the fee agreem ents are relevant to the disputes between the parties as a m eans of m easuring the reasonableness of plaintiffs’ attorney’s fee request, in the event there is a future claim for attorney’s fees. Doc. No. 125-1, at 2. Alternatively, plaintiffs suggest the agreem ents m ay be relevant if conflicts of interest develop between the defendants and various witnesses represented by Marshall Dennehey. Id., at 2-3. Dockets.Justia.com Citing to Rule 1.7 of the Pennsylvania Rules of Professional Conduct, the plaintiffs argue that these conflicts m ay develop if witnesses give testim ony unfavorable to the defendants, as Marshall Dennehey m ight then have a difficult choice between potentially conflicting interests of the defendants and the witnesses. Id. Plaintiffs also suggest that if an attorney/ client relationship “does not exist or was im properly m anufactured to prevent indepen dent access to [the witnesses],” plaintiffs would be entitled to discovery of the retainer and fee agreem ents. Id. First, I do not view defendants’ fee arrangem ents as having significant probative value to the question – if and when the question becom es ripe – of the reasonableness of plaintiffs’ attorney’s fees. While the defendants’ attorney’s fees m ay be relevant under Fed. R. Evid. 40 1’s relaxed standard, it is difficult to see how such evidence could be m uch m ore than m arginally relevant. Nor is there is any present need for this inform ation. If plaintiffs’ claim m atures an d attorney’s fees becom e an issue, there will be tim e enough to consider a request for lim ited additional discovery. Second, Rule 1.7 of the Pennsylvania Rules of Professional Conduct reads as follows: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the represen tation of one or m ore clients will be m aterially lim ited by the lawyer's responsibilities to another client, a form er client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer m ay represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide com petent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the sam e litigation or other proceeding before a tribunal; and (4) each affected client gives inform ed consent. Plaintiffs have m ade no allegation of a “concurrent conflict of interest.” They have not established that the representation of various witnesses “will be directly adverse to the [defendants]” and have not established that “there is a significant risk that the representation of one or m ore clients will be m aterially lim ited by the lawyer’s responsibilities to another client, a form er client or a third person or by a personal interest of the lawyer.” Pa. RPC 1.7(a)(1) and (2). This particular rule of professional conduct is designed to preserve a lawyer’s “[l]oyalty and independent judgm ent[,]” which are “essential elem ents in the lawyer’s relationship to a client.” Id., at Com m ent, § 1. “[C]om m on representation of persons having sim ilar interests in civil litigation is proper if the requirem ents of paragraph (b) are m et.” Id., Com m ent, § 23. Here, the witnesses are not parties to the litigation. In addition, there is no indication that the witnesses have such a divergence of interest with the defendants that com m on representation would be prohibited categorically under the rule. Nor has there been any indication of any im propriety by Marshall Dennehey in representing the witnesses. For instance, there is no in dication the firm has failed to provide advice required under Rule 1.7(b), if warranted. 1 1 As there is no allegation nor indication of the existen ce of a “concurrent conflict,” of the type that would require disclosure and consent under Rule 1.7(b), I am not suggesting that such advice was required here, only that there is no basis in the record for believing that anything untoward has gone on. The Rules of Professional Conduct are not designed “as an addition to the depressingly form idable array of dilatory strategies already part of the litigator’s arsenal.” Caracciolo v. Ballard, 687 F. Supp. 159, 160 -61 (E.D. Pa. 1988). Courts are understandably cautious when confronted with a m otion resting on a supposed conflict of interest that does not involve the com plaining party. See In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 161 (3d Cir. 1984) (noting a Circuit split and assum ing without deciding that only a form er client can raise a disqualification claim ). The reason for the caution is the fear that one could use the rules of professional conduct as a “procedural weapon.” See W olf, Block, Schorr & Solis-Cohen v. N avon, No. Civ.A. 0 560 38 , 20 0 6 WL 680 915, at *1 (E.D. Pa. Mar. 9, 20 0 6) (citing Cohen v. Oasin, 8 44 F. Supp. 10 65, 10 67 (E.D. Pa. 1994); Com m onw ealth Ins. Co. v. Graphix Hotline, Inc., 8 0 8 F. Supp. 120 0 , 120 3 (E.D. Pa. 1992); Ham ilton v. Merrill Ly nch, 645 F. Supp. 60 , 61 (E.D. Pa. 1986)). Obviously a court has a duty to inquire when an actual conflict becom es apparent or when there is “a showin g of a serious potential for conflict.” See United States v. Moscony , 927 F.2d 742, 750 (3d Cir. 1991). Here, there is no indication of a current conflict, only speculation about the possibility of a conflict arising in the future. Given the advanced stage of discovery in this case, and the am ple discovery plaintiffs have obtained already con cerning defendants’ financial condition, I am convinced the plaintiffs’ m otion should be denied. I agree with the defendants that the potential m ischief and burden of producing this inform ation is out of all proportion to any legitim ate benefit to plaintiff. See Moffitt v. Tunkhannock Area Sch. Dist., CV 3:131519, 20 16 WL 4271773, at *4 (M.D. Pa. Aug. 15, 20 16). Accordingly, plaintiffs’ m otion will be denied. BY TH E COU RT: s / R ich a r d A. Llo r e t _ _ _ RICH ARD A. LLORET U N ITED S TATES MAGISTRATE JU D GE
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