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A federal judge has refused to disqualify the law firm of Ballard Spahr Andrews & Ingersoll from representing several defendants in a civil rights suit that raises compelling questions about the legal rights and responsibilities of Internet service providers, or ISPs, when their subscribers allegedly trade in child pornography. In the suit, Voicenet Communications Inc. and Omni Telecom Inc., both of Ivyland, Bucks County, Pa., claim that agents who raided their offices and seized several computer servers in January violated their rights and the rights of their innocent subscribers. But lawyers for Bucks County argue that the suit is an improper attempt to use the federal courts to shut down an ongoing criminal investigation, and, as a result, they are asking the judge to abstain from hearing the case at all. The defense lawyers last week won a preliminary battle when the court refused to disqualify them. In a seven-page opinion in Voicenet Communications Inc. v. Pappert, U.S. District Judge Mary A. McLaughlin concluded that while Voicenet is a former client of a Ballard Spahr lawyer’s, it is not a current client of the firm and that the prior matter handled by the Ballard Spahr lawyer is not “substantially related” to the new lawsuit. The ruling means that Ballard Spahr attorneys Frank A. Chernak, Eric W. Sitarchuk and Christin E. Connolly will remain lead lawyers for the Bucks County defendants. In the suit, the ISPs claim that their property was “illegally seized” and that the raid effectively shut down a portion of their business. The raid violated the First Amendment, the suit says, because it “denied plaintiffs’ right to disseminate millions of articles, images, discussion groups and movies to their customers and subscribers.” The agents also violated the Pennsylvania Internet Child Pornography Law, the plaintiffs lawyers argue, since the law includes explicit protections for ISPs. Under the ICPL, the suit says, ISPs must be notified by the state Attorney General of the existence of alleged child pornography on their systems and “must be given a chance to disable, block or remove the pornography within five days or face criminal prosecution.” The suit seeks an injunction ordering the return of the servers, alleging that the raid and seizure “constitute an impermissible prior restraint of free speech — and trample upon the statutory and constitutional privacy rights of plaintiffs and plaintiffs’ subscribers.” After the suit was filed, Chernak was hired to defend Bucks County, county District Attorney Diane E. Gibbons, and two detectives from the District Attorney’s Office. But Voicenet’s lawyers — Richard A. Sprague, Geoffrey R. Johnson and Mark B. Sheppard of Sprague & Sprague — moved to disqualify the Ballard firm, arguing that “Ballard suffers from an irreconcilable conflict of interest arising from its simultaneous representation, as its primary outside corporate counsel to Voicenet, and as counsel for the … defendants.” The plaintiffs’ lawyers in their motion argued that disqualification was mandatory under Rule 1.7(a) of the Pennsylvania Rules of Professional Conduct because “Ballard is violating its duty of loyalty to an existing client … and because there is a great likelihood for the potential disclosure to defendants of confidential client-lawyer communications from Voicenet to Ballard.” But the Ballard lawyers argued that Rule 1.7(a) did not apply since Voicenet is not a current client, but a former client, of Ballard partner Richard Jaffe. McLaughlin found that Jaffe first represented Voicenet while he was at the firm of Mesirov Gelman Jaffe Cramer & Jamieson, and that later, during his brief stint at the firm of Schnader Harrison Segal & Lewis, he worked on raising capital for Voicenet for a possible initial public offering, introducing Voicenet to potential investors and investment bankers. On April 30, 2002, Jaffe left Schnader Harrison for Ballard Spahr and billed Voicenet for two hours of work during his first summer at Ballard Spahr, McLaughlin found. Jaffe sent the last bill to Voicenet in September 2002 for 30 minutes’ work in August, McLaughlin found, and no Ballard Spahr lawyer has performed work for Voicenet since then. But Voicenet’s lawyers argued that the company’s internal records show that Ballard Spahr is still “its primary outside corporate counsel.” Just a few weeks ago, the plaintiffs lawyers argued, Jaffe telephoned Voicenet’s president to discuss the possibility of renewing the IPO. “Mr. Jaffe made calls on Voicenet’s behalf and apparently represented to at least one investment banker that he was counsel for Voicenet and that his client was again interested in going public,” they wrote. But the Ballard Spahr lawyers argued that Jaffe’s recent phone call did not amount to representation since it never led to any work. In an affidavit, Jaffe said that an investment banker had contacted him to ask whether he was aware if Voicenet was interested in trying another capital venture. Jaffe said that he told the banker that he had had no contact with Voicenet but that he would call the company to see if the investment banker could call Voicenet. McLaughlin concluded that Voicenet “is not a current client” of the Ballard firm. Jaffe, she said, “was retained for a specific transaction on which he worked during the years 2000, 2001, and 2002.” “He did only two hours of work for Voicenet after going to Ballard Spahr in May 2002,” McLaughlin said. “There was no contact at all between Jaffe and Voicenet from sometime in 2002 until March 2004.” As a result, she said, “it appears that Voicenet ceased being a client of Ballard Spahr in August 2002 when the last hours were billed to it.” Jaffe’s recent phone call didn’t change that fact, McLaughlin found, since it never led to new work. “That call may certainly have led to more work for Jaffe if Voicenet, after talking with the investment banker, decided to go forward with a transaction. But the call, itself, did not trigger a new representation,” McLaughlin wrote. “It was not even initiated by Jaffe. The investment banker called him and Jaffe then called Voicenet. The fact that Jaffe did not bill Voicenet for the call supports this conclusion,” she wrote. As a result, McLaughlin found that the disqualification motion should be decided on the basis of Rule 1.9 of the Pennsylvania Rules of Professional Conduct, which dictates a lawyer’s duty to a former client. Under Rule 1.9, she said, “the question that the court must answer is whether the prior representation of Voicenet is substantially related to the present case.” McLaughlin found that it was not. The civil rights suit filed by Voicenet and Omni stems from the seizure of computer equipment relating to Omni’s “Quikvue” service, she said, while Jaffe’s work for Voicenet related to a telephone Internet technology called “Voice Over IP.” McLaughlin said the Ballard Spahr lawyers had also assured her that “no information regarding Voicenet has been disclosed to any other attorney at Ballard” and that Jaffe and a Ballard Spahr associate who also worked on the Voicenet matter and went with him from Schnader Harrison “have been effectively screened from the present representation.”

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