Left to right: James Kwartnik, Jeffrey Mullen, Raymond Deluca and Bruce Ficken, Cozen O’Connor (Dennis Degnan)
A former client of two Cozen O’Connor partners has lost his bid to disqualify the firm from representing his adversary in a construction payment dispute, based on his allegations that the firm mishandled conflicts in a lateral hire from Pepper Hamilton.
Henry McNeil had sought to keep Cozen O’Connor from representing E.B. Mahoney Brothers, claiming that the firm gained an unfair advantage for Mahoney when it brought on a group of construction lawyers from Pepper Hamilton. The group included Bruce Ficken and Jeffrey Mullen, who had represented McNeil for more than a year in his arbitration against Mahoney when they were at Pepper Hamilton.
Philadelphia Court of Common Pleas Judge Patricia McInerney entered an order Wednesday morning denying McNeil’s motion for preliminary injunction.
“While Cozen did not fully and promptly comply with the letter of the applicable Rule of Professional Conduct 1.10(b), Cozen did not so violate the spirit of the rule, under the facts of this particular case, to warrant that it be disqualified from continuing to represent its client, E.B. Mahoney Builders Inc., in the underlying arbitration,” McInerney wrote in a footnote. “McNeil’s new counsel has not shown that the harm Mr. McNeil suffered by the loss of Mr. Ficken’s professional services is irreparable nor that Mr. McNeil will suffer continuing or additional harm due to Mr. Ficken’s employment at Cozen O’Connor.”
McNeil filed a complaint against Cozen O’Connor in May, and the motion for preliminary injunction about a month later.
According to his complaint, McNeil hired Mahoney as a general contractor for a residential construction project, and the two ended up in a payment dispute. In arbitration, Mahoney sought final payment for the construction project, but McNeil made a counterclaim, alleging the work was deficient.
McNeil turned to Ficken and Mullen, then part of Pepper Hamilton’s construction litigation group, along with Richard Foltz. Cozen O’Connor partners Paul Leary Jr. and F. Brenden Coller represented Mahoney.
Ficken and Mullen left Pepper Hamilton for Cozen O’Connor in March. Foltz remained, but McNeil alleged that he did not have sufficient knowledge about the case.
McNeil alleged that Cozen O’Connor and his former lawyers did not promptly implement a sufficient screen to prevent Ficken and Mullen from sharing information about his case, as required by Pennsylvania Rule of Professional Conduct 1.10. The firm did not do so until after McNeil demanded they stop representing Mahoney, the complaint alleged.
But Cozen O’Connor said it fully complied with the rule, and that Ficken followed instructions from Pepper Hamilton to cease communication with McNeil as soon as he announced his move, Cozen O’Connor said in its answer. The firm argued that McNeil filed his complaint in bad faith, and alleged that he was simply trying to delay the arbitration with Mahoney.
McInerney stayed the underlying arbitration proceedings until Sept. 5 to give McNeil’s new lawyers time to become familiar with the case, her order said.
“The plaintiff’s motion was both unnecessary and misguided,” said Thomas Wilkinson of Cozen O’Connor, who represented his firm with Abraham Reich and Robert Tintner of Fox Rothschild. “The parties can now finally proceed with their contract dispute in arbitration.”
James Smith, Daniel Rhynhart and Louis Abrams of Blank Rome are representing McNeil. Rhynhart did not return a call seeking comment.