The opinion of the court was delivered by: FOLEY
MEMORANDUM-DECISION and ORDER
By separate motions in the above two separate actions, the Albany law firm of Harvey & Harvey, with Jonathan P. Harvey as counsel, representing defendant Pittsburgh Corning Corporation, move to disqualify the co-counsel for plaintiffs, Thomas W. Henderson, and each and every partner and associate in the Philadelphia law firm of Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, on the ground of a conflict of interest. Of the above named ten defendants in the actions, three defendants: Ryder Industries, Inc., Fibreboard Corporation and 48 Insulations, Inc. have formally joined in the support of the motions. The motions were argued and submitted together, and the issue of disqualification being the same factually and legally, this single decision shall cover and decide both motions.
The complaints in the actions are essentially similar. The Rossworm complaint contains four causes of action, and the DiMura complaint has six causes of actions. The same amount of substantial compensatory and punitive damages are sought. The Rossman complaint was filed May 18, 1977, and the DiMura complaint January 13, 1978. The attorney of record in each action is Attorney James E. Buckley of Albany. Under the Baskin firm name, Thomas W. Henderson filed separate Notices of Appearance as co-counsel for the plaintiffs in the actions on May 5, 1978.
The complaints allege in their important portions that the defendants at all relevant times were engaged in the business of manufacturing, fabricating, supplying and selling products containing asbestos and asbestos filters. That the plaintiff intestate in each action was employed for a period of several years with several different employers, and in the course of their employment were required to use and work with products which contained asbestos and asbestos fibers and dust, said products having been manufactured, fabricated, sold and supplied by the defendants. That while using said products, the asbestos fibers and dust became airborne, and were inhaled by each plaintiff intestate, causing each to contract cancer which caused great pain and suffering and their deaths.
Jurisdiction is based upon diversity of citizenship, and the causes of action are based upon breach of warranty, negligence and gross negligence principles and claims. An excellent, perceptive and exhaustive opinion in this type lawsuit, interpreting and applying the law of Texas, the forum State, and reviewing the trial, was written by Circuit Judge John Minor Wisdom in Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076 (5th Cir. 1973). A substantial decision followed at page 1103, denying a petition for rehearing and for an en banc consideration with further discussion of the facts developed in the trial and the law to be applied to certain facts.
Motions of this kind from their inception have been considered sensitive and important ones that affect the integrity of the Bar, the right of litigants to be represented by counsel of their own choice, and the public interest and faith in our legal system. My reading of the decision and text writing on the subject had been general and somewhat cursory, but the need for concentrated review and study was compelled by the intensity of the dispute in the voluminous submission on the motions herein.
Great interest in this type problem was created by the fact that the judicial writings, first recognized and still considered as sound and authoritative in stating the proper standards to be applied and guides to be followed in the resolution of the particular factual situation, were decisions of two eminent judges of the Second Circuit in the early years of their outstanding judicial careers. The writings and decisions were those of District Judge Edward Weinfeld in T.C. & Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 (S.D.N.Y.1953), and then District Judge Irving R. Kaufman, now Chief Judge of the Circuit, in United States v. Standard Oil Company, 136 F. Supp. 345 (S.D.N.Y.1955). Both cases have been referred to in many court decisions throughout the country, and in numerous legal articles and text writings. In the T.C. & Theatre decision, Judge Weinfeld enunciated the "substantial relationship" test that is followed to this day. Chief Judge Kaufman in his appellate capacity in Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, at p. 570 (2d Cir. 1973), stated that the court took as its guide-post in applying Canon 4 of the ABA Code of Professional Responsibility "A lawyer should preserve the confidence and secrets of a client" the standard articulated by Judge Weinfeld in the T.C. Theatre decision. Canon 9 of the ABA Code provides that "a lawyer should avoid even the appearance of professional impropriety", and major reliance is placed upon this provision by defendant Pittsburgh Corning Corporation in its quest here to disqualify Attorney Thomas W. Henderson, and every partner and associate of the Baskin firm of which he became a partner by partnership agreement of February 1, 1978.
As noted in Silver Chrysler Plymouth, Inc. v. Chrysler Mot. Corp., 518 F.2d 751, 753, n. 3 (2d Cir. 1975), Judge Kaufman in United States v. Standard Oil Company, supra, at p. 367, while refusing to disqualify an attorney:
When dealing with ethical principles, it is apparent that we cannot paint with broad strokes. The lines are fine and must be so marked. Guide-posts can be established when virgin ground is being explored, and the Conclusion in a particular case can be reached only after painstaking analysis of the facts and precise application of precedent. (emphasis supplied)
The underscored advice and approach charts the course I have followed to reach the decision of the two motions before me. I shall also now note other leading cases in this Circuit that are worthy of consideration and also discuss standards and principles applicable to situations of this kind. General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974); Hull v. Celanese, 513 F.2d 568 (2d Cir. 1975); Funds of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 (2d Cir. 1977); Government of India v. Cook Industries, Inc., 569 F.2d 737 (2d Cir. 1978); Board of Education of the City of New York v. Nyquist, 590 F.2d 1241 (2d Cir. 1979); See also First Wis. Mortg. Trust v. First Wis. Corp., 584 F.2d 201 (7th Cir. 1978); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706 (7th Cir. 1976); Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978); Peat, Marwick, Mitchell & Co. v. Los Angeles Rams Football Co., 284 Md. 86, 394 A.2d 801.
The difficulty I have had in reaching one of the conclusions upon which I base my decision to deny the separate motions in the separate actions to disqualify Attorney Henderson, and his partner and associates, from representing the plaintiffs is the application in these different factual circumstances of the standard enunciated by Judge Weinfeld in this regard:
The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer's duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained.
To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. . . . Matters disclosed by clients under the protective seal of the attorney-client relationship and intended in their defense should not be used as weapons of offense. . . . In cases of this sort the Court must ask ...