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ROSS v. A&P

March 22, 1978

EDWARD J. ROSS and FRANCIS K. TEPLITZ, as Executors of the Estate of Samuel L. Kahn, Deceased, and MYRON K. WILSON and JOSEPH WALKER, as Executors of the Estate of Henry Kahn, Deceased, Plaintiffs,
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant and Third-Party Plaintiff, v. PAUL R. SLAYTON, Third-Party Defendant



The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Defendant, The Great Atlantic & Pacific Tea Company, Inc. ("A&P"), moves to disqualify the firm of Breed, Abbott & Morgan and Edward J. Ross, Esq., a member of that firm, from continuing to represent plaintiffs in this action. Mr. Ross is a named plaintiff and an able and experienced member of the trial bar of this court. *fn1"

 This diversity action seeks damages for the breach of a lease covering a commercial building owned by plaintiffs and leased to defendant for a renewed term commencing August 1, 1968 and ending July 31, 1975. Defendant allegedly vacated the premises in March 1974 and neglected to secure them, resulting in damages due to vandalism. Further, the building was damaged by fire on March 9, 1975, and no rent was paid from March 1, 1975 through July 31, 1975, the end of the term. Ultimately, the building was surrendered in a damaged condition.

 The complaint alleges damages in the amount of $210,606.65 for unpaid rent and loss of rental value, damages to the premises which took place both prior to and after the expiration of the lease term, and expenses incurred in maintaining the building. Defendant filed a third-party complaint against Paul R. Slayton, to whom defendant had assigned the lease when the premises were initially vacated.

 Prior to the institution of this action, plaintiffs, including Mr. Ross, *fn2" brought an action against the building's insurer seeking $70,000 for fire damage, $10,666 for unpaid rent, and $125,000 for continued deterioration and inability to sell or re-let the premises. These claims were settled for $15,000, and the plaintiffs now take the position that this amount, less expenses, should be allocated exclusively to fire damage.

 Defendant seeks to disqualify Mr. Ross and his firm under Canon 5 of the Code of Professional Responsibility (the "Code"), and Disciplinary Rule ("D.R.") 5-102(A) *fn3" and (B) *fn4" thereunder. It is defendant's position that Mr. Ross "ought to be . . . a witness on behalf of his client" and thus should be disqualified under D.R. 5-102(A). Alternatively, defendant insists that it will call Mr. Ross as a witness and elicit testimony prejudicial to plaintiffs, thus warranting disqualification under D.R. 5-102(B).

 I.

 We hold D.R. 5-102(A) inapplicable. Although Mr. Ross is familiar with the circumstances surrounding plaintiffs' claim, plaintiffs' prima facie case can readily be presented through documents and the testimony of other witnesses who have first hand knowledge of the facts. Thus, plaintiffs will call Robert G. See, the A&P Real Estate Director in charge of the premises, who will testify concerning the defendant's alleged failure to secure the building after vacating. Other A&P maintenance employees will testify about the nature and the extent of the damages to the demised property. Further, plaintiffs will examine certain expert witnesses in the construction and engineering fields about the amount of the damage and its allocation between vandalism and fire. Finally, various admissions of defendant will be introduced through letters and other documents. In short, we fail to see how Mr. Ross' testimony is at all required in plaintiffs' direct case. We therefore conclude that this is not a case in which Mr. Ross ought to be a witness on behalf of his client. See Kroungold v. Triester, 521 F.2d 763, 766 (3d Cir. 1975).

 II.

 The impact of D.R. 5-102(B), however, presents a more difficult question. Under that rule, the party seeking disqualification must show that the testimony to be elicited from his adversary will be prejudicial to the latter's client. To disqualify an attorney on any lesser showing would sanction an intolerable tactic whereby an attorney could disqualify his adversary merely by calling him to the witness stand. Kroungold v. Triester, supra, 521 F.2d at 766.

 Defendant intends to examine Mr. Ross concerning the latter's alleged failure to mitigate plaintiffs' damages by repairing, re-letting or selling the premises upon surrender of the property. However, after careful in camera inspection of Mr. Ross' deposition, taken by defendant, we fail to perceive how Mr. Ross' testimony will be prejudicial to plaintiffs on this issue. Defendant's motion papers enlighten us no further, making only the most conclusory allegations that the testimony will indeed be prejudicial. In this circumstance, we conclude that Mr. Ross' testimony on the issue of mitigation of damages will not be prejudicial to plaintiffs, so that disqualification is not warranted under D.R. 5-102(B), even if Mr. Ross were to be called as a witness for the defendant.

 III.

 Our inquiry is not at an end, however, for defendant also intends to examine Mr. Ross about the extent of the fire damage caused by the March 9, 1975 fire. Since the lease exempts defendant from liability for fire damage, *fn5" the jury will have to determine the amount of damage attributable to the fire. Obviously, the defendant will attempt to set that figure as high as possible. Defendant will therefore seek to elicit from Mr. Ross the fact that Mr. Ross, at the time of the earlier suit against the building's insurer, set the fire damage at the rather high figure of $70,000. Such testimony, admissible as an admission of party opponents, see Rule 801(d)(1), Fed.R.Evid., will be prejudicial to plaintiffs, since it directly contradicts their instant position that fire damage amounts to less than $15,000. *fn6"

 This showing of prejudice literally satisfies D.R. 5-102(B). The Disciplinary Rules, however, are not per se mandates calling for literal application. International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1293 (2d Cir. 1975); J.P. Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1359-60 (2d Cir. 1975) (Gurfein, J., concurring). On the contrary, even where a Disciplinary Rule is by its terms applicable, we must examine the facts of a claimed violation of the Code and attempt to shape a remedy which will assure fairness to the parties and integrity to the judicial process. Greenbaum-Mountain Mortgage Co. v. Pioneer Nat'l Title Ins., 421 F. Supp. 1348, 1352-53 (D. Colo. 1976); United States ex ...


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