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FIRST HAWAIIAN BANK v. RUSSELL & VOLKENING

June 7, 1994

FIRST HAWAIIAN BANK AS TRUSTEE OF THE JOSEPH CAMPBELL TRUST, Plaintiff,
v.
RUSSELL & VOLKENING, INC. and TIMOTHY SELDES, Defendants.


McKENNA


The opinion of the court was delivered by: LAWRENCE M. MCKENNA

McKENNA, D.J.

 Plaintiff First Hawaiian Bank as Trustee of the Joseph Campbell Trust ("Bank"), filed this action on February 25, 1991, invoking the jurisdiction of this Court based on diversity of citizenship, pursuant to 28 U.S.C. § 1332. Plaintiff filed an Amended Complaint on September 10, 1993. Plaintiff charges Defendants Russell & Volkening, Inc. ("R&V") and Timothy Seldes, in their capacity as literary agent for Joseph Campbell and, upon his death, the Bank, with numerous state common law violations. *fn1" Defendants filed the instant motion on October 13, 1993, seeking disqualification of Plaintiff's counsel, Kenyon & Kenyon, and dismissal of the action with prejudice. For the reasons set forth below, Defendant's motion is denied.

 I.

 The Court recites only the facts necessary to decide the instant motion. Plaintiff, a banking corporation organized and existing under the laws of the state of Hawaii, is the Trustee of the Joseph Campbell Trust and, in this capacity, the successor in interest to the rights and properties (including the literary and contractual rights and properties) formerly held by Joseph Campbell. Defendant R&V is a corporation organized and existing under the laws of the state of New York, with its principal place of business in New York City. Defendant Seldes, a citizen and resident of New York, is the majority shareholder and president of R&V. *fn2" Together, Defendants served as the literary agent for, among others, Campbell and, upon Campbell's death, Plaintiff. *fn3" Plaintiff contends, and Defendants do not dispute, that Seldes is an experienced literary agent who, over the years, has negotiated numerous deals directly with attorneys concerning substance and terms and, in so doing, demonstrated a legal sophistication greater than that possessed by the average non-lawyer.

 In order to understand the instant action, it is necessary to refer back to a previous litigation brought before this Court in 1989, involving two parties and their respective claims concerning rights to exploit a 1985 television series entitled "Joseph Campbell and the Power of Myth with Bill Moyers." On one side was a group composed of individuals and entities involved in producing and airing the television series (the "Moyers group"), and on the other side was one Stuart L. Brown, M.D., and Mythology, Ltd. (the "Mythology group"). The two parties each claimed the right to exploit the aforementioned television series on the basis of contracts entered into between the respective parties and either Campbell or the Bank. Significantly, the contracts on which each of the parties relies were negotiated, on behalf of Campbell or the Bank, by Defendants. *fn4" The Moyers group filed an action seeking a declaratory judgment and Mythology answered and also filed counterclaim against the Moyers group seeking damages. Subsequently, the Moyers group filed a Third-Party Complaint against the Bank, in its role as Trustee of the Joseph Campbell Trust, seeking to be compensated for any damages awarded to the Mythology group. The Bank, in turn, filed a Third-Party Complaint against the Mythology group on the basis of the latter's alleged unauthorized exploitation of certain works by Campbell.

 By letter dated April 6, 1990, James C. Campbell, an attorney at Cades Schutte Fleming & Wright ("Cades Schutte"), the Hawaii law firm representing the Bank, asked Seldes to cooperate "in any way [he] could" with lawyers from the firm Kenyon & Kenyon ("Kenyon") -- the Bank's New York counsel -- in connection with the aforementioned. litigation (the "Moyers litigation"). Seldes had already agreed to cooperate with attorneys for both the Moyers group and the Mythology group, as evidenced by affidavits he provided to attorneys for the two parties, in conjunction with the Moyers litigation, prior to receiving the April 6, 1990, letter from James C. Campbell. In the course of providing the requested cooperation, Seldes participated in many phone calls with, and provided a great deal of documentation to, Kenyon attorneys. The nature of this documentation is, however, a matter of some dispute. Plaintiff contends, and presents affidavits to support its contention, that Defendants provided Kenyon attorneys with documentation, selected by Defendants for its purported relevance, over the course of approximately a half-dozen visits to Defendants' offices by Kenyon attorneys; Kenyon attorneys were permitted, on certain occasions, to carry off some of this material for the purposes of photocopying. Plaintiff insists, however, that it was provided only with information related to Defendants' dealings on behalf of Campbell and the Bank -- material Plaintiff claims it was entitled to anyway, since it was the principal on whose behalf Defendants, as agent, had acted.

 Defendants' version is, not surprisingly, somewhat different, and is supported by affidavit testimony as well. Defendants assert that Seldes, in his phone conversations with Kenyon attorneys and by permitting Kenyon attorneys full access to all of Defendants' files, divulged secrets and confidential information and documents to Kenyon concerning Defendants' involvement in, and knowledge of, the agreements underlying the Moyers litigation. Defendants claim that Seldes' cooperation was premised on his understanding, based on representations made to him by Kenyon attorneys, that

 
"they" were all working together; that "they" were all on the same team; that it was "them" against the rest -- with the "they" being the Trust; the Bank; [Cades Schutte]; Kenyon & Kenyon; and Mr. Sedes [sic] and Russell & Volkening.

 Defs.' Mem. Law Supp. Mot. Disqualify Opposing Counsel at 6-7.

 Plaintiff denies any such representations, and contends that in fact Defendants were in a precarious position, since each side in the Moyers litigation was basing its case on a contract negotiated with Defendants on behalf of Campbell. Defendants, Plaintiff asserts, provided such information -- and only such information -- as they were obliged, as Defendants' agent, to provide: all documents generated on Campbell's (or Plaintiff's) behalf. Likewise, Plaintiff adds, Defendants provided such documents, for the same reason and with the same limited scope, to the Mythology group. Plaintiff contends, however, that attorneys for the Bank as well as for the Mythology group were forced to resort to subpoenas in order to obtain any other relevant documents from Defendants.

 On September 10, 1990, pursuant to a subpoena, Seldes was deposed by attorneys involved in the Moyers litigation. Seldes appeared without counsel. The transcript of the deposition reflects that Seldes was apprised of his right to be represented by counsel at the deposition, but nonetheless resolved to continue the deposition. During the course of the deposition, attorneys for each of the represented parties, at different times, objected to certain questions put to Seldes on the ground of attorney-client privilege. Defendants point to the fact that Kenyon attorneys so objected to support their claim that the Kenyon attorneys represented Seldes as well as the Bank. *fn5" Plaintiff notes that while Kenyon did in fact so object, so too did the attorneys for each of the other represented parties. *fn6" It is uncontroverted that Kenyon attorneys did not direct Seldes not to answer any questions, and, moreover, during the course of the deposition, even when attorneys for each of the represented parties explained to Seldes his right to have an attorney present, Seldes never expressed a belief that he was represented by Kenyon.

 In late January 1991, James C. Campbell wrote to Karen Uyemura, a Bank administrator, who in turn wrote to Defendants requesting that Defendants agree to waive the statute of limitations as to any claims the Bank might have against them. Defendants refused. Subsequently, the instant action was filed. Defendants claim that in a March 19, 1991, phone call, a Kenyon attorney assured Seldes that the Bank had no intention of serving the Complaint on Defendants, and that the filing of the Complaint was only a legal technicality. From March 1991 until May 1991, Defendants continued to cooperate with Kenyon attorneys in conjunction with both the Moyers litigation and a lucrative publishing agreement being negotiated between the Bank and HarperCollins. ...


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