Plaintiff's Attorney and Firm Disqualified Where Attorney Previously Represented Corporate Defendant in Many Matters

In the case of Darrow v. PPL Electric Utilities Corp., No. 236 MDA 2021 (Pa. Super. Dec. 14, 2021 Panella, P.J., Murray, J. and Stevens, P.J.E.) (Op. by Murray, J.)(Stevens, P.J.E., dissenting), the Pennsylvania Superior Court reversed a trial court’s decision on an issue of whether the Plaintiff’s attorney, who formerly represented the Defendant, PPL, while working as a defense counsel at another law firm, should be precluded, as well as the entire Plaintiff’s firm, from representing the Plaintiff due to the prior representation of the Defendant.

According to the Opinion, the Plaintiff allegedly sustained injuries when the vehicle he was operating collided with a utility pole and then came into contact with a downed powerline.

The Plaintiff retained his attorney and the Plaintiff’s law firm. Thereafter, the Defendant filed a Motion to Disqualify the Plaintiff’s attorney and the Plaintiff’s law firm representing the Plaintiff given that the Plaintiff’s attorney had previously and extensively defended the Defendant, PPL, in numerous matters.  The Defendant, PPL, asserted that the attorney allegedly had intermittent knowledge of the inner workings of the Defendant’s operations and litigation strategy. In essence, the Defendant asserted that there was an impermissible conflict of interest under the Pennsylvania Rules of Professional Conduct that implicated not only the Plaintiff’s attorney but the entire Plaintiff’s law firm.

According to the appellate Opinion, the trial court had agreed that the specific Plaintiff’s attorney should be disqualified.  However, the trial court ruled that the Plaintiff’s entire law firm did not have to be disqualified.

The appellate court disagreed on appeal. As such, the appellate court reversed the trial court’s Order and directed the trial court to enter an Order disqualifying the entire Plaintiff’s law firm.

In this regarding, the Superior Court ruled that the Plaintiff’s attorney at issue had had a substantial prior relationship with the Defendant that included the attorney having access to the Defendant’s confidential information regarding its internal operations and litigation strategy. 

The appellate court further found that the Plaintiff’s law firm’s small size weighed in favor of disqualification of the firm as it would be difficult to prevent contact between the attorney at issue and the other attorneys in the Plaintiff’s law firm. The court also noted that the Plaintiff’s attorney at issue had already provided substantial work on the Plaintiff’s case prior to the disqualification.

The appellate court was also influenced to rule in its fashion by the fact that the Plaintiff’s law firm had only implemented a conflicts screening policy after the particular attorney had been disqualified from the case.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion by Judge Stevens can be reviewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 4, 2022).

Source of image:  Photo by GR Stocks on www.unsplash.com.

Novel Future Conflicts of Interest Decision issued by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas

In his June 16, 2011 Opinion in the case of Lasavage v. Smith, No. 10 - CV - 2183 (Lacka. Co. June 16, 2011 Nealon, J.), Lackawanna County Judge Terrence R. Nealon addressed conflicts of interest issues involving personal injury firms that represent health care providers on business matters and then later sue their former clients in medical malpractice actions.

The case involved an "advance conflict waiver" that a plaintiff's personal injury law firm had its physician clients sign acknowledging that the law firm may later sue them for medical malpractice if appropriate.

In this matter, visiting Senior Judge Peter O'Brien originally decided that the medical malpractice defendants' motion to disqualify the plaintiff's law firm from handling the case by Order only denying that motion.

The plaintiff's law firm followed up by later filing a motion for sanctions seeking attorney's fees for having to defend against the motion for disqualification previously decided by Judge O'Brien.  The motion for sanctions was assigned to Judge Nealon for decision. In deciding the sanctions motion, Judge Nealon analyzed the parties' arguments concerning both the advance conflict waiver issue and the "substantially related" matters test.

Judge Nealon ruled that although the medical malpractice defendant did not succeed with their disqualification motion, the challenge to the enforceability of the advance conflict waiver was not frivolous, particularly in light of the absence of any Pennsylvania decisional precedent interpreting Comment 22 to Rule of Professional Conduct No. 1.9 governing consents to future conflicts. 

The court also found that there was evidentiary support and a novel legal argument for the proposition that the former and current representations involved “substantially related” subjects due to the plaintiff’s corporate liability claim in this case and the confidential information that plaintiff’s counsel had reportedly acquired when previously creating the medical malpractice defendant's corporation. 

Accordingly, the court denied the plaintiff’s petition for sanctions.

Anyone desiring a copy of Judge Nealon's decision in Lasavage may contact me at dancummins@comcast.net.