PETERSON et al v. WOLFINGTON et al

Filing 131

MEMORANDUM AND OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 2/23/17. 2/24/17 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ERIK PETERSON, et al
Plaintiffs,
v.
SEAN WOLFINGTON, et al
Defendants.

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CIVIL ACTION

NO. 15-cv-05030-GAM

MEMORANDUM
Plaintiffs have filed a motion to compel answers to their third request for
production of documents. Doc. No. 125. These requests seek copies of attorney
representation and fee agreements between the defendants’ counsel, Marshall Dennehey
Warner Coleman & Goggin, and a number of individuals, including the defendants. Doc.
No. 125-2, at 2-3. Plaintiffs allege that the burdens attendant on production of the
documents is minimal, the documents are relevant to the controversy between the
parties, and the documents are not privileged. Doc. No. 125-1, at 3-4. The defendants
have objected to these requests for a variety of reasons, including that they are of
marginal relevance to the parties’ controversy, are protected trade secrets, are sought in
order to “tarnish counsel with the specter of impropriety 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 agreements are relevant to the disputes between the
parties as a means of measuring 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 agreements may be relevant if conflicts of interest develop between
the defendants and various witnesses represented by Marshall Dennehey. Id., at 2-3.

Citing to Rule 1.7 of the Pennsylvania Rules of Professional Conduct, the plaintiffs argue
that these conflicts may develop if witnesses give testimony unfavorable to the
defendants, as Marshall Dennehey might 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 improperly
manufactured to prevent independent access to [the witnesses],” plaintiffs would be
entitled to discovery of the retainer and fee agreements. Id.
First, I do not view defendants’ fee arrangements as having significant probative
value to the question – if and when the question becomes ripe – of the reasonableness of
plaintiffs’ attorney’s fees. While the defendants’ attorney’s fees may be relevant under
Fed. R. Evid. 401’s relaxed standard, it is difficult to see how such evidence could be
much more than marginally relevant. Nor is there is any present need for this
information. If plaintiffs’ claim matures and attorney’s fees become an issue, there will
be time enough to consider a request for limited 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 representation of one or more clients
will be materially limited by the lawyer's responsibilities to another client,
a former 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 may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent 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 same
litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent.
Plaintiffs have made 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 more clients will be materially limited by the lawyer’s
responsibilities to another client, a former 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 judgment[,]”
which are “essential elements in the lawyer’s relationship to a client.” Id., at Comment, §
1.
“[C]ommon representation of persons having similar interests in civil litigation is
proper if the requirements of paragraph (b) are met.” Id., Comment, § 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 common
representation would be prohibited categorically under the rule. Nor has there been any
indication of any impropriety by Marshall Dennehey in representing the witnesses. For
instance, there is no indication the firm has failed to provide advice required under Rule
1.7(b), if warranted. 1

As there is no allegation nor indication of the existence 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.
1

The Rules of Professional Conduct are not designed “as an addition to the
depressingly formidable 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 motion resting on a supposed conflict
of interest that does not involve the complaining party. See In re Corn Derivatives
Antitrust Litig., 748 F.2d 157, 161 (3d Cir. 1984) (noting a Circuit split and assuming
without deciding that only a former 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 Wolf, Block, Schorr & Solis-Cohen v. Navon, No. Civ.A. 056038, 2006 WL 680915, at *1 (E.D. Pa. Mar. 9, 2006) (citing Cohen v. Oasin, 844 F.
Supp. 1065, 1067 (E.D. Pa. 1994); Commonwealth Ins. Co. v. Graphix Hotline, Inc., 808
F. Supp. 1200, 1203 (E.D. Pa. 1992); Hamilton v. Merrill Lynch, 645 F. Supp. 60, 61
(E.D. Pa. 1986)). Obviously a court has a duty to inquire when an actual conflict
becomes apparent or when there is “a showing 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 ample discovery
plaintiffs have obtained already concerning defendants’ financial condition, I am
convinced the plaintiffs’ motion should be denied. I agree with the defendants that the
potential mischief and burden of producing this information is out of all proportion to
any legitimate benefit to plaintiff. See Moffitt v. Tunkhannock Area Sch. Dist., CV 3:131519, 2016 WL 4271773, at *4 (M.D. Pa. Aug. 15, 2016).

Accordingly, plaintiffs’ motion will be denied.

BY THE COURT:
s/Richard A. Lloret_ __
RICHARD A. LLORET
UNITED STATES MAGISTRATE JUDGE