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HAMMOND v. GOODYEAR TIRE & RUBBER CO.

August 15, 1996

DARYL HAMMOND, Plaintiff,
v.
THE GOODYEAR TIRE & RUBBER COMPANY; THE FIRESTONE TIRE & RUBBER COMPANY aka FIRESTONE/BRIDGESTONE; KELSEY-HAYES COMPANY aka HAYES-WHEELS INTERNATIONAL, INC.; DENMAN TIRE & RUBBER COMPANY aka DENMAN TIRE CORPORATION; FOOD RESOURCES, INC.; BUDD-MAR TIRES INC.; THE BUDD COMPANY; THE BUDD ACQUISITION CORP., Defendants.



The opinion of the court was delivered by: HURD

 Presently before the court is the defendant Firestone/Bridgestone's motion to disqualify the plaintiff's law firm. Oral argument on this matter was heard by the court on May 13, 1996, in Utica, New York, and the court reserved decision. On July 15, 1996, an order was issued inviting, but not requiring, the plaintiff's attorneys to submit for the court's in camera review, any supplemental affidavits and supporting documents to clarify Joseph M. Poissant, Esq.'s present financial interest, if any, in the plaintiff's law firm. In response, defendant submitted a supplemental affirmation. Plaintiff's law firm accepted the invitation and those documents were considered by the court in reaching the conclusions presented in this order.

 I. FACTS

 The case at bar involves an action for personal injury by the plaintiff, Daryl Hammond ("Hammond"). Plaintiff is represented by the law firm of Poissant & Nichols, located in Malone, New York. Hammond, a United States Army Reservist, was injured when the wheel and tire he was installing onto the spare tire rack of a 1970 Jeep truck exploded. The Jeep was owned and in the possession of the United States Army. Defendant Firestone Tire & Rubber Company, also known as Firestone/Bridgestone ("Firestone"), manufactured the wheel assembly involved in the accident. The wheel in question is a multi-piece rim assembly.

 In 1981 and 1982, plaintiff's predecessor law firm, Poissant & Twiss, represented Firestone. *fn1" That case also involved a multi-piece rim assembly wheel, just as the present case. Furthermore, both cases involve personal injuries and are based on negligence, strict product liability, and failure to warn theories. Specifically, both cases involve claims which assert that the multi-piece wheel was defectively designed and capable of explosively separating under pressure.

 Joseph M. Poissant, Esq. ("Poissant") was substantially involved in the 1981 litigation. He was involved in the pretrial phases and also served as lead counsel for Firestone. He was assisted in that trial by Ms. Frances Prell, Esq. ("Prell"), who is still the current principal outside counsel for Firestone in all multi-piece rim litigation.

 In order to prepare for the 1981 litigation, Poissant attended a meeting in Washington, D.C. on March 17, 1981, with William Freivogel, Esq., the principal counsel for Firestone at that time who was responsible for coordinating and supervising all of Firestone's rim product's on a national level. At the meeting, Poissant became privy to Firestone's litigation strategies and tactics in defending multi-piece rim actions. There-after, Poissant and Prell worked closely on the 1981 action in Franklin County, New York. The 1981 case was tried before a jury and lasted three weeks. Poissant acted as lead counsel, performed the opening statement, participated in the preparation of Firestone's lay and expert witnesses, and cross-examined witnesses. One of Firestone's expert witnesses, Robert Lee, testified at the 1981 trial and is expected to testify at the trial of the case presently before this court. Poissant billed more than 270 hours to Firestone and collected over $ 70,000 in legal fees.

 Counsel for defendant submit that Poissant was exposed to Firestone's confidences, secrets, privileged information, and client information relating to the defense of multi-piece rim litigation. Firestone argues that they have been involved in multi-piece rim litigation for over thirty years, and as such, the defense strategies, documentary evidence, and many of the same witnesses will be used in the current litigation before this court as were used in the 1981 case in which Poissant was involved.

 Poissant does not dispute the fact that he was involved in the litigation defending Firestone in 1981. Plaintiff's attorneys contend that Poissant has not had any further dealings with Firestone since the resolution of the 1981 action. Poissant & Nichols further submit that Poissant has sold all of his shares in the law firm and does not receive any profit from the firm. Further, Hammond's attorneys contend that Poissant did not know of, nor have anything to do with, the pending litigation against Firestone, nor did they themselves know of the prior litigation. Hammond's attorneys further state that they will not have any contact with Poissant or any other attorneys who were involved in that litigation. Finally, the plaintiff's attorneys argue that all law firm files, including those from the 1981 case, are destroyed after three years.

 Firestone's attorneys attempted to resolve this matter with the plaintiff's attorneys without court intervention in a letter dated February 23, 1996, prior to the filing of this motion to disqualify. The defendant's attorneys were willing withdraw any objections regarding the plaintiff's firm if plaintiff's attorneys would stipulate to five things. Specifically, the defendant's attorneys wanted assurances that: (1) no attorney involved in the 1981 litigation would be involved in the current litigation; (2) no lawyer involved in the 1981 litigation has a financial interest in the firm at the present time; (3) no attorney who shared in the fees paid to Poissant's firm in the 1981 action would share in the fees collected in the current action; (4) no attorneys involved in the prior litigation, within or outside of the firm, would have any contact with the attorneys in the present litigation; and (5) that no files from the 1981 litigation were in the possession of the attorneys in the present litigation and any that are discovered at a later date would be forwarded to the defendant's attorneys without review by the attorneys at Poissant & Nichols. Plaintiff's attorneys refused to sign the proposed stipulation and offered no explanation other than the declaration that no conflict of interest exists in this matter.

 In reaching a conclusion regarding this matter, the court has considered the motion papers of both sides, arguments heard on May 13, 1996, and papers submitted by both sides for in camera review by the court.

 II. DISCUSSION

 The Code of Professional Responsibility provides that an attorney must preserve the confidences and secrets of a client.

 
Except when permitted by DR 4-101(C), a lawyer shall not knowingly:
 
1. Reveal a confidence or secret of a client.
 
2. Use a confidence or secret of a client to the disadvantage of the client.
 
3. Use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client ...

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