A federal court refused to disqualify William Pietragallo from representing a defendant in a case in which he had previously contemplated representing the plaintiff.
Caldon Company Limited Partnership, the plaintiff in DOCA v. Westinghouse Electric, met with Pietragallo and his law partner, Alan Towner, in September 2004 to discuss the firm’s possible representation of Caldon in a suit against Westinghouse and Advanced Measurement & Analysis Group Inc.
During the meeting, Caldon discussed its views on potential claims in the suit, disclosed facts related to those claims and delivered 34 documents to the firm, now known as Pietragallo Gordon Alfano Bosick & Raspanti. In October 2004, Pietragallo declined to represent Caldon and kept the documents Caldon had given along with the 16 pages of notes Towner and Pietragallo had collectively taken during the meeting. Caldon then hired Picadio Sneath Miller & Norton to represent it in the suit, which was filed against Westinghouse and Advanced Measurement in December 2004.
Since the start of the suit, K&L Gates has represented Westinghouse and Smith Cohen & Mork represented Advanced Measurement. But in May 2012, Pietragallo and other attorneys from his firm entered their appearance on behalf of Advanced Measurement. Caldon, which is the predecessor to DOCA Co., moved to disqualify Pietragallo and his firm.
After the motion was filed, Pietragallo handed over the notes and documents from the 2004 meeting with Caldon to the firm’s attorney fighting the disqualification motion, William Wycoff of Thorp Reed & Armstrong. Wycoff made the documents available to Caldon, which argued the documents contain confidential information that could be “significantly harmful to Caldon if disclosed to defendants,” said U.S. District Senior Judge Maurice B. Cohill Jr. of the Western District of Pennsylvania.
Pietragallo Gordon opposed the motion on several fronts, arguing Pietragallo had no memory of what was discussed in the meeting and no recollection of being given documents by Caldon or whether he ever reviewed them.
Towner, who billed 6.5 hours to review the documents, has been screened off within his firm from this litigation, Cohill noted. The firm further argued that Caldon cannot show how any of the documents or information could be harmful to Caldon in the litigation under Pennsylvania Rule of Professional Conduct 1.18, which deals with the duties toward prospective clients.
Cohill said there is no dispute that the majority of documents and handwritten notes in the possession of Pietragallo Gordon were either irrelevant to the litigation at this point or had already been disclosed at some point in the previous eight years. That leaves six attorney-client privileged documents whose disclosure might be harmful to Caldon, Cohill said.
But Cohill said three of those six cannot be considered significantly harmful because two refer to unrelated patent matters and the other is a list of documents given to one of Caldon’s counsel. The three remaining documents protected by attorney-client privilege are a 1998 memo prepared by Caldon for its counsel discussing possible predatory practices by a Westinghouse predecessor, a 1998 memo from Caldon’s counsel summarizing possible actions against the Westinghouse predecessor and a 2000 letter from another Caldon counsel addressing certain issues relating to Caldon’s participation in an environmental hearing involving the Westinghouse predecessor.
Caldon argued the two 1998 documents relate to the statute of limitations defense asserted by the defendants and could harm Caldon’s position. Cohill noted discovery in the case was closed and summary judgment motions, portions of which deal with the statute of limitations, have been filed. Cohill said Pietragallo Gordon was not representing Advanced Measurement during that phase of the litigation.
“Moreover, Mr. Pietragallo, the only attorney representing [Advanced Measurement] that was present at the September 2004 meeting has no memory of the meeting and no memory of the documents Caldon turned over at the meeting,” Cohill said. “Under these circumstances, we fail to see how Caldon could be significantly harmed as a result of the disclosure of the 1998 documents in September 2004 to an attorney who does not recollect the documents in a case that is awaiting the court’s resolution of motions for summary judgment.”
Cohill found that the third privileged document related to the environmental hearing has been the subject of discovery and its disclosure would not harm Caldon.
Aside from Rule 1.18, Caldon argued there was the importance of avoiding the appearance of impropriety and maintaining public confidence in the legal profession. Cohill said he understood Caldon’s concerns but was confident the facts of this case wouldn’t lead to negative impressions of the profession.
“Most significantly, we have found that there is no danger that Caldon will suffer significant harm based on the information and documents disclosed during the September 2004 meeting,” Cohill said. “We did not make this finding in a vacuum. The basis for the motion is a relatively short meeting that occurred over eight years ago. In the intervening eight years this case has involved the exchange of millions of documents and the parties have engaged in numerous lengthy depositions of Caldon officials.”
Cohill noted that Pietragallo Gordon came into the case after the summary judgment motions were briefed and was likely hired in anticipation that the case was moving toward trial. Cohill said that on the “outside chance” the defendants “suddenly attempt” to use a protected document against Caldon, they would risk the court sua sponte imposing Rule 11 sanctions and other penalties.
Caldon’s attorney, Anthony P. Picadio of Picadio Sneath in Pittsburgh, said he viewed this as a professional disagreement between himself and Pietragallo. He said it was a close enough call that he felt a responsibility to his client to file the motion, but respected Cohill’s ruling.
“I consider Bill [Pietragallo] to be a real credit to the profession and the last thing I would ever do was anything that would in any way be critical of him,” Picadio said.
Wycoff said this was an interesting case because Rule 1.18 was amended several years ago to include a requirement that documents be turned over to the attorney that could be “significantly harmful” to the client. Wycoff said the facts of the case were strong here in that discovery was closed and motions for summary judgment were already filed. Wycoff said the judge took Pietragallo at his word that he did not recall the conversation with Caldon or the documents Caldon gave to him.
(Copies of the eight-page opinion in DOCA v. Westinghouse Electric, PICS No. 12-2235, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •