Eckert Seamans Cherin & Mellott’s representation in a civil suit of the convicted co-owner of the juvenile detention facilities at the heart of the “kids-for-cash” scandal is under fire given the firm represented one of the detained juveniles who sued the co-owner and others.
In a motion filed Aug. 8 in Western PA Child Care v. Powell, the plaintiffs are seeking the disqualification of Eckert Seamans over what they claim is an unwaivable conflict of interest in the firm’s representation of the juvenile in one case and co-owner Robert J. Powell in the instant action.
Eckert Seamans attorney Bridget Montgomery represented Raul Clark and his parents against Powell and one of his entities as part of a class action brought against a number of players in the Luzerne County kids-for-cash scandal. That class action, Wallace v. Powell, received final settlement approval last month.
Eckert Seamans lawyers John R. McGinley, Daniel B. McLane and Thomas Sanchez entered their appearance in Western PA Child Care last week on behalf of Powell, his wife, and a company, Vision Holdings LLC. The Powells and others were sued in the case by Powell’s co-owner, Gregory R. Zappala, and a number of entities Zappala owns or is affiliated with.
“Robert Powell, Debra Powell and Vision Holdings engaged Eckert Seamans in order to induce this motion to disqualify and delay the hearing into the plaintiffs’ motion for preliminary injunction or, in the alternative, to attack any decision that this court might make against them due to Eckert Seamans’ conflict,” the plaintiffs in Western PA Child Care said in their motion to disqualify.
The preliminary injunction motion is an attempt by the plaintiffs to enjoin Powell and his former law firm from spending any of the $150 million to $200 million in attorney fees the plaintiffs allege the firm is set to receive as part of its work in an environmental mass tort litigation, In re Avoca Litigation. Powell, through his counsel at Eckert Seamans, recently responded to the motion for preliminary injunction, noting the attorney fees in that case have yet to be calculated and are months away from being awarded.
The plaintiffs, through their attorney, Bernard Schneider of Brucker Schneider & Porter, argued in the disqualification motion that Eckert Seamans should know that any promises Powell made to pay the Clarks “are worthless.” The plaintiffs also claimed in the motion that if the Avoca fees are released to Powell, he will “hide or dissipate them and the Clarks will have no remedy against Powell.”
The plaintiffs argued that no rational attorney could reasonably believe he or she could provide competent representation to both the Clarks and the Powells.
McGinley said Monday that his firm received written waivers from both the Clarks and the Powell defendants, all of which were represented by separate counsel in deciding whether to waive the conflict. McGinley said an ethical screen was created in his firm between the two matters. McGinley said he was referred the case by a close friend at a firm in New York because McGinley is a commercial litigator and he views the RICO action, at its core, as a commercial dispute between Zappala and Powell’s respective entities.
“It’s not as if we went to a client who was unrepresented and said, ‘Would you do a waiver,’” McGinley said.
He said he asked Zappala’s counsel for any authority to support the disqualification and the response was a draft of the motion Zappala filed Aug. 8.
In the motion, Zappala’s counsel said it could not find a Pennsylvania case on point, but said that other jurisdictions have applied an objective test to determine whether the lawyer could reasonably believe he could represent both clients.
The plaintiffs further noted that Powell has consistently used in related litigation, including in Wallace, the defense that the money he paid to two former Luzerne County judges in exchange for them sending juveniles to his detention facilities was coerced by the judges. The plaintiffs argued “it is a certainty” that Powell will raise the defense in Western PA Child Care.
“Therefore, Eckert Seamans cannot meet the precondition to waiver set forth in Rule [of Professional Conduct] 1.7(b)(3) that ‘the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal,’” the plaintiffs said in their motion for disqualification.
McGinley noted that his firm was local counsel in the Wallace case. But Zappala’s counsel said in the motion that the law makes no distinction between lead and local counsel in assessing ethical duties.
On Monday, U.S. District Chief Judge Joy Flowers Conti of the Western District of Pennsylvania ordered the case be placed in the court’s alternative dispute resolution program. It was unclear how that would affect the upcoming hearings in the case on the pending motions.
A call to Zappala’s counsel, Schneider, was not returned.