Left to right: James Kwartnik, Jeffrey Mullen, Raymond Deluca and Bruce Ficken, Cozen O’Connor (Dennis Degnan)
Cozen O’Connor is accusing a partner’s ex-client of using a complaint against the firm to delay a multimillion-dollar construction law arbitration, after the former client alleged that a group of lawyers handled conflicts improperly when they joined the firm from Pepper Hamilton.
Cozen O’Connor filed an answer June 30 in McNeil v. Cozen O’Connor, denying the claims. Henry McNeil had alleged that the firm gained an unfair advantage for its client, E.B. Mahoney Brothers, when it hired a group of construction lawyers from Pepper Hamilton. The group included two lawyers who had represented McNeil in an arbitration against Mahoney.
Cozen O’Connor argued that the complaint was filed in bad faith and should be dismissed.
“This is not a ‘multimillion-dollar representation,’ but rather a collection action where McNeil is engaging in a tactical effort to avoid paying the amounts long outstanding due and owing to Mahoney for services rendered,” the answer said. “If McNeil or his counsel had bothered to inquire concerning an ethics screen, rather than filing the complaint to gain a tactical advantage, they would have learned that there was no basis to believe, suspect or imply that McNeil’s former client confidential information was at risk.”
According to his complaint, McNeil hired Mahoney as a general contractor for a residential construction project in the Chestnut Hill neighborhood of Philadelphia. But the project was not completed, the complaint said, and McNeil pursued claims against the contractor in arbitration. In arbitration, Mahoney sought final payment for the construction project, but McNeil made a counterclaim, alleging the work was deficient.
For the arbitration, McNeil turned to Pepper Hamilton’s Bruce Ficken—then chairman of the construction litigation group—along with Jeffrey Mullen and Richard Foltz. Cozen O’Connor partners Paul Leary Jr. and F. Brenden Coller represented Mahoney.
In March 2017, Ficken stopped communicating with McNeil, the complaint alleged. McNeil then learned through other sources that Ficken, Mullen and two other members of Pepper Hamilton’s construction litigation group had left for Cozen O’Connor. Foltz remained, but did not have sufficient knowledge about the case, the complaint said.
In his complaint, McNeil asserted that Rule 1.10(b) of the Pennsylvania Rules of Professional Conduct requires Cozen O’Connor to be disqualified from representing Mahoney in the arbitration. He alleged that the firm failed to implement a screen before Ficken and Mullen joined, to prevent sharing of information about the case, and only did so after McNeil’s new lawyers requested that Cozen O’Connor withdraw from its representation of Mahoney.
But Cozen O’Connor said a screen had already been implemented when the firm received that request. In the June 30 answer, Cozen O’Connor said Ficken followed instructions from Pepper Hamilton to cease communication with McNeil once he announced his planned lateral move. Cozen O’Connor also complied fully with Rule 1.10(b), the answer said, and should be allowed to continue representing Mahoney.
Thomas Wilkinson of Cozen O’Connor, who is representing the firm, declined to comment beyond the answer.
James Smith of Blank Rome, who is representing McNeil with Daniel Rhynhart and Louis Abrams of the same firm, did not return a call seeking comment.
A spokesman for Pepper Hamilton declined to comment.