Darrow, M. v. PPL Electric Utilities Corp.

J-A23009-21
2021 PA Super 245MATTHEW DARROW : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PPL ELECTRIC UTILITIES :
CORPORATION :
: No. 236 MDA 2021
Appellant :
Appeal from the Order Entered January 26, 2021
In the Court of Common Pleas of Lackawanna County
Civil Division at No: 17 CV 3312
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED: DECEMBER 14, 2021
PPL Electric Utilities Corporation (Appellant) appeals from the order
denying its motion to disqualify the law firm of Munley Law, P.C. and its
attorneys (Munley or Munley firm) from representing Matthew Darrow
(Darrow), the plaintiff in the underlying personal injury, negligence/premises
liability action against Appellant. After careful review, we reverse and remand
for the entry of an order precluding the Munley firm and its attorneys from
representing Darrow.
On April 17, 2015, Darrow suffered serious injuries when the vehicle he
was driving collided with a utility pole and came into contact with a downed
power line. Darrow subsequently retained Munley attorney John M. Mulcahey,
Esquire (Mulcahey or Attorney Mulcahey). On June 6, 2017, Mulcahey
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* Former Justice specially assigned to the Superior Court.
J-A23009-21
initiated suit by filing a writ of summons against Appellant on Darrow’s behalf.
The same day, Mulcahey also filed a request for pre-complaint discovery.
Mulcahey, since February 2014, has practiced law with Munley, a
Scranton-based firm specializing in personal injury, and employing
approximately 10 attorneys. Prior to joining Munley, Mulcahey worked for 18
years for the law firm of Lenahan & Dempsey, P.C. (Lenahan). During that
time, Mulcahey represented Appellant in defending numerous personal injury
lawsuits.
On July 26, 2017, Appellant filed a motion to disqualify Mulcahey and
the entire Munley firm from representing Darrow. Appellant based its request
on Mulcahey’s: (a) extensive past representation of Appellant; and (b)
“intimate knowledge of the inner workings of [Appellant’s] operations” and
litigation strategy. Motion to Disqualify, 7/26/17, at 7. Appellant asserted
that an impermissible conflict of interest existed under the Pennsylvania Rules
of Professional Conduct, and the conflict implicated all of Munley’s attorneys.
Appellant attached to the motion to disqualify an affidavit executed by
Andrea Martino (Martino). For 15 years, Martino worked in Appellant’s Office
of General Counsel as a legal claims specialist and later, legal operations
manager. Affidavit, 7/24/17, at 1. Martino stated:
During [Mulcahey’s] representation of [Appellant] . . .
Attorney Mulcahey had direct involvement in the handling [of] no
less than thirty-five (35) active litigation files. . . .
Some of these matters involved facts similar to the instant
suit, wherein person(s) were allegedly injured, or property was
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allegedly damaged as a result of a [utility] pole hit or [electric] line
contact.
***
The underlying facts of [the instant] personal injury lawsuit
will be substantially similar to Attorney Mulcahey’s prior
representations of [Appellant], and will involve information of a
similar character and degree as Attorney Mulcahey was privy to in
accordance with his attorney-client relationship with [Appellant].
***
During his representation of [Appellant], Attorney Mulcahey
received, handled, or utilized confidential and proprietary
information regarding [Appellant’s] operations and other privileged
and confidential business matters.
As a result of his representation of [Appellant], Attorney
Mulcahey and by imputation [Munley,] possess intimate knowledge
and familiarity with [Appellant’s] business and privileged and
confidential information as to [Appellant’s] practices and litigation
strategy and handling …
Id. at 2-4 (paragraph numbering omitted). Further, Martino stated that
Mulcahey never notified Appellant about Mulcahey’s representation of Darrow,
nor did Appellant waive the conflict of interest created by Mulcahey’s
representation of Darrow. Id. at 2.
On August 14, 2017, Darrow, through Mulcahey, filed a response in
opposition to Appellant’s motion to disqualify, arguing no conflict of interest
existed and Mulcahey’s representation of Darrow was not improper. Darrow
asserted, inter alia:
Attorney Mulcahey has not represented [Appellant] in any
action involving the subject [utility] pole or electrical wires. As
such, Attorney Mulcahey did not obtain any confidential and/or
proprietary records that would be beneficial, relevant, or related
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to the subject matter of this litigation. Attorney Mulcahey’s
representation of [Appellant] ended almost four years ago. Thus,
any alleged confidential or proprietary information that he may
have obtained would be obsolete.
Response to Motion to Disqualify, 8/14/17, at ¶ 10.
The trial court heard oral argument on the motion, and on August 9,
2019, granted the motion in part and disqualified Mulcahey from representing
Darrow. The court reasoned:
Mulcahey does not deny his prior representation [of
Appellant], nor does he dispute that some of the matters involved
downed wires from damaged utility poles. Mulcahey does argue,
however, that the current case in which he represented [] Darrow
is not the “same or a substantially related matter” as envisioned
in the Rules of Professional Conduct. [See Pa.R.P.C. 1.9.1]
Mulcahey explains his rationale by pointing out that the pole at
issue in the instant matter in which he represents Darrow is a
separate and distinct pole from any of the other [prior] matters in
which he represented [Appellant]. Mulcahey’s argument here is
at best unpersuasive. Nothing is presented by either side here to
support even an inkling that this case would not be substantially
related to other cases involving downed utility wires.
***
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1 Under Rule 1.9, attorneys owe duties to former clients. “A lawyer who has
formerly represented a client in a matter shall not thereafter . . . represent
another person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client
. . . .” Pa.R.P.C. 1.9(a) (emphasis added); see also Pa.R.P.C. 1.9(c) (stating
an attorney with a conflict of interest under this Rule is prohibited from
disclosing or using information related to a prior representation). Rule 1.9
explains that matters “are ‘substantially related’ for purposes of this Rule if
they involve the same transaction or legal dispute or if there otherwise is a
substantial risk that confidential factual information as would normally have
been obtained in the prior representation would materially advance the client’s
position in the subsequent matter.” Pa.R.P.C. 1.9, cmt. 3.
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The fact that the utility pole in this case was not involved in
any of the cases in which Mulcahey previously represented
[Appellant] is, quite simply, immaterial. We do not believe that
the phrase “substantially related” means that Mulcahey can only
be excluded from cases against [Appellant] involving poles which
happened also to be the subject of matters defended previously
by Mulcahey. That is, quite simply, too narrow.
Opinion and Order, 8/9/19, at 3, 4 (footnote added). However, the trial court
found the record was not sufficiently developed to determine whether
disqualification of the Munley firm was appropriate under Pennsylvania Rule
of Professional Conduct 1.10 (imputed disqualification of a law firm). See id.
at 4-5 (finding record insufficient “to conclude one way or the other regarding
the sufficiency or propriety of any type of screening process employed by the
Munley firm”). Thus, the trial court indicated it would schedule an evidentiary
hearing on the matter.
Pertinently, Rule 1.10(b) provides:
(b) When a lawyer becomes associated with a firm, the firm may
not knowingly represent a person in the same or a substantially
related matter in which that lawyer, or a firm with which the
lawyer was associated, had previously represented a client whose
interests are materially adverse to that person and about whom
the lawyer had acquired information protected by Rules 1.6 and
1.9(c) that is material to the matter unless:
(1) the disqualified lawyer is screened from any
participation in the matter and is apportioned no part of the
fee therefrom; and
(2) written notice is promptly given to the appropriate
client to enable it to ascertain compliance with the
provisions of this rule.
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Pa.R.P.C. 1.10(b) (emphasis added); see also Pa.R.P.C. 1.0(k) (defining
“screened” as “the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably
adequate under the circumstances to protect information that the isolated
lawyer is obligated to protect under these Rules or other law.”).
“Confidential information gained by one member of a law firm is
imputable to other members of the same law firm.” Estate of Pew,
655 A.2d 521, 545 (Pa. Super. 1994) (emphasis added); see also Pa.R.P.C.
1.10, cmt. 2 (“The rule of imputed disqualification . . . gives effect to the
principle of loyalty to the client as it applies to lawyers who practice in a law
firm. Such situations can be considered from the premise that a firm of
lawyers is essentially one lawyer for purposes of the rules governing loyalty
to the client”).
Notably, in August 2019, two other attorneys from the Munley firm filed
an unrelated wrongful death/survival action against Appellant in the
Lackawanna County Court of Common Pleas on behalf of Mary Ann Rudalavage
(Rudalavage), individually and as administrator of the estate of John
Rudalavage.2 On October 21, 2019, Appellant filed a separate motion to
disqualify Munley in the Rudalavage case, arguing Munley failed to establish
____________________________________________
2 Mulcahey did not represent Rudalavage, whose husband was driving on a
road owned by Appellant when he was involved in a collision and died as a
result.
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an adequate and timely screening protocol pursuant to Rule 1.10(b), and
Mulcahey’s conflict of interest was imputed to all Munley attorneys.
On January 24, 2020, the trial court held a joint hearing in the Darrow
and Rudalavage cases to address Appellant’s respective motions to disqualify
the Munley firm. Appellant presented the testimony of Martino and Joel
Compton (Compton); Compton previously worked in Appellant’s Office of
General Counsel as a Legal Claims Coordinator. Munley, on behalf of Darrow
and Rudalavage, presented the testimony of Mulcahey and Maria Elkins
(Elkins), Munley’s Chief Operations Officer.
Mulcahey testified that during the 18 years he worked for Lenahan, he
served as outside counsel for Appellant. N.T., 1/24/20, at 85. Mulcahey
acknowledged handling “as many as 40 or 50 cases” for Appellant while
working at Lenahan. Id. at 97. On some occasions, Mulcahey collaborated
with Martino and Compton in defending Appellant against personal injury
lawsuits. Id. at 97-98. Mulcahey stated he did not discuss with any of the
attorneys at Munley, “proprietary knowledge,” “trial strategies” or “settlement
strategies” that Mulcahey may have learned while representing Appellant. Id.
at 92-93. Mulcahey testified that since his disqualification on August 9, 2019,
he had no involvement in the Darrow litigation. Id. at 93. On cross-
examination, Mulcahey acknowledged he had “gathered a lot of information
relevant to the defense of [Appellant’s] casualty cases while [he was] with
Lenahan[.]” Id. at 97-98. Mulcahey confirmed that prior to his
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disqualification, he visited the scene of Darrow’s accident with an engineering
expert. Id. at 113-15; see also id. at 116 (Mulcahey testifying he reviewed
the police report with the expert). In addition, Mulcahey conceded he never
saw a written protocol from Munley concerning a conflict screen, id. at 108,
117, nor was any screening protocol in place when Mulcahey filed the action
on Darrow’s behalf in June 2017. Id. at 113; see also id. at 117 (Mulcahey
stating he never signed a written screening protocol). Mulcahey testified that
Munley created the screen after the trial court’s August 9, 2019 order
disqualifying him. Id. at 116.
Elkins testified that she had worked for Munley since 2016. Id. at 69.
Although not a lawyer, she is responsible for the creation, implementation and
adherence to firm policies and procedures. Id. at 70. Elkins stated she
created the screening protocol to preclude Mulcahey’s access to office case
files in the Darrow and Rudalavage cases. Id. at 71. Elkins elaborated,
“Following the [] August 9, 2019 order [disqualifying Mulcahey] . . ., I
developed a screening protocol specifically to preclude . . . Mulcahey from
accessing any files, information or data in the possession of Munley[.]”
Affidavit, 1/24/20, at ¶ 6 (emphasis added). She testified that the physical
case files for both Darrow and Rudalavage are locked in her office. N.T.,
1/24/20, at 72. Elkins stated that all staff at Munley have been instructed not
to discuss the two cases with Mulcahey, and were advised that doing so could
result in disciplinary action, up to and including termination. Id. at 73.
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Further, Elkins explained Mulcahey would not receive any fees in either the
Darrow or Rudalavage case. Affidavit, 1/24/20, at ¶ 15. On cross-
examination, Elkins acknowledged she is not a lawyer and had never created
a screening protocol prior to September 2019, after Mulcahey was disqualified
and the screen was implemented. See N.T., 1/24/20, at 79-80, 83. Elkins
also stated the screening protocol was put in writing; however, she did not
produce written evidence of any writing, and there is no written
documentation of the screen in the certified record. Id. at 81. Elkins testified
that none of the attorneys in the Munley firm signed any screening protocol.
Id.
Next, Appellant presented testimony from Martino, Appellant’s legal
operations manager. Id. at 21. During Martino’s nearly 18 years of
employment with Appellant, she coordinated with outside legal counsel,
including Mulcahey, to formulate litigation defense strategy. Id. at 22.
Martino described the various duties Mulcahey performed when he
represented Appellant, which involved analyzing legal claims in personal
injury/wrongful death actions, giving recommendations as to liability,
propounding discovery, witness preparation, accident site evaluation, and
developing settlement strategy. Id. at 25-34. Martino testified that Mulcahey
had access to Appellant’s proprietary records, internal policies, and other
confidential information. Id. at 31, 35.
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Finally, Compton testified that he had worked for Appellant in its Office
of General Counsel. Id. at 48; see also id. at 49-50 (Compton stating his
job responsibilities were similar to those of Martino). Compton also worked
with Mulcahey in defending numerous casualty cases. Id. at 48, 50.
By memorandum and order entered January 26, 2021, the trial court
denied Appellant’s request for disqualification of Munley as to both Darrow and
Rudalavage, concluding Munley’s “screening process is adequate.”
Memorandum and Order, 1/26/21, at 9. Appellant timely appealed.3 Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
On appeal, Appellant presents a single issue for our consideration:
DID THE TRIAL COURT ERR IN DENYING THE MOTION TO
DISQUALIFY MUNLEY [] BECAUSE THE FIRM FAILED TO COMPLY
WITH PENNSYLVANIA RULE OF PROFESSIONAL CONDUCT
1.10(B), SINCE IT DID NOT IMPLEMENT A TIMELY OR ADEQUATE
ETHICAL SCREEN WITH REGARD TO THE DISQUALIFIED
ATTORNEY AND IT DID NOT PROVIDE WRITTEN NOTICE TO THE
FORMER CLIENT TO ENABLE IT TO ASCERTAIN COMPLIANCE
WITH THE PROVISIONS OF THE RULE?
Appellant’s Brief at 3.
Preliminarily, we observe that an order denying a motion to disqualify a
law firm based on conflict of interest is immediately appealable as a collateral
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3 Appellant also appealed the disqualification ruling in Rudalavage’s case; the
appeal is before this panel, docketed at No. 237 MDA 2021, and addressed in
a separate decision.
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order. Dougherty v. Phila. Newspapers, LLC, 85 A.3d 1082, 1086 (Pa.
Super. 2014); see also Pa.R.A.P. 313 (governing collateral orders).
Furthermore:
When reviewing a trial court’s order on disqualification of counsel,
we employ a plenary standard of review. Courts may disqualify
attorneys for violating ethical rules. On the other hand, courts
should not lightly interfere with the right to counsel of one’s
choice. Thus, disqualification is appropriate only when both
another remedy for the violation is not available and it is essential
to ensure that the party seeking disqualification receives the fair
trial that due process requires.
E.R. v. J.N.B., 129 A.3d 521, 526 (Pa. Super. 2015) (citation omitted).4
Appellant argues the trial court erred in not disqualifying Munley, as the
conflict of interest created by Mulcahey’s extensive prior representation of
Appellant was imputable to the other Munley attorneys, where:
(a) Munley did not establish a screening protocol until the trial
court disqualified Mulcahey in August 2019, well after Mulcahey
entered his appearance on behalf of Darrow, initiated this action,
requested discovery, and viewed the accident scene with an
expert;
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4 Darrow/Munley incorrectly states the applicable standard of review is abuse
of discretion. See Darrow Brief at 4-6. Darrow relies on Commonwealth v.
Boring, 684 A.2d 561, 565 (Pa. Super. 1996) ( “As the federal court pointed
out, the determination as to whether to disqualify counsel because of a conflict
of interest is within the discretion of the trial court.” (emphasis added; citation
and quotations omitted)). No Pennsylvania case has applied the abuse of
discretion standard announced in Boring. To the contrary, numerous
decisions apply the plenary standard of review. See, e.g., Weber v.
Lancaster Newspapers, Inc., 878 A.2d 63, 80 (Pa. Super. 2005) (“When
reviewing a trial court’s order on disqualification of counsel, we employ a
plenary standard of review.” (citing Vertical Res., Inc. v. Bramlett, 837
A.2d 1193, 1201-02 (Pa. Super. 2003)).
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(b) Munley has never produced a written copy of the purported
screening protocol; and
(c) Mulcahey has never seen a writing setting forth a screening
protocol, nor have any of the attorneys at Munley signed such a
protocol.
See Appellant’s Brief at 17-19. Appellant further argues Darrow/Munley failed
to comply with the provisions of Pa.R.P.C. 1.10(b)(2) (requiring “written notice
[to be] promptly given to the appropriate client to enable it to ascertain
compliance with the provisions of this rule.”). Id. at 29-30.
Our review reveals no precedential Pennsylvania authority with a
controlling analysis for the adequacy of a law firm’s conflict protocol under
Rule 1.10(b). However, numerous non-precedential Pennsylvania decisions
have employed the factors identified in Dworkin v. General Motors Corp.,
906 F. Supp. 273 (E.D. Pa. 1995)5 (“Dworkin factors”). Id. at 279-80(adopting the non-exhaustive list of factors enumerated in Maritrans GP,
Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1289 (Pa. 1992) (Nix,
C.J., dissenting)); see also Rippon v. Rippon, 2014 Pa. Dist. & Cnty. Dec.
LEXIS 1, at *19 (C.C.P. Dauphin 2014) (applying Dworkin factors);6 Royal
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5Where we are unable to find Pennsylvania precedent, “we may look to federal
case law for its persuasive value.” Beemac Trucking, LLC v. CNG
Concepts, LLC, 134 A.3d 1055, 1061, n.4 (Pa. Super. 2016).
6 While “decisions of the Court[s] of Common Pleas are not binding
precedent[], they may be considered for their persuasive authority.” Wilson
v. Parker, 227 A.3d 343, 356 (Pa. Super. 2020) (citation omitted).
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Bank of Pa. v. Walnut Square Partners, 2006 WL 771457, at *3; 2006
Phila. Ct. Com. Pl. LEXIS 147, at *8 (C.C.P. Phila. 2006) (same).
Instantly, we, like the trial court, find the Dworkin factors valuable and
appropriate in examining whether Munley should be disqualified. See
Memorandum and Order, 1/26/21, at 3.
The Dworkin factors include:
1. the substantiality of the relationship between the attorney and
the former client
2. the time lapse between the matters in dispute
3. the size of the firm and the number of disqualified attorneys
4. the nature of the disqualified attorney’s involvement
5. the timing of the wall.
Dworkin, 906 F. Supp. at 279-80 (quoting Maritrans, 602 A.2d at 1289).
The features of the wall itself should also be considered, including:
a. the prohibition of discussion of sensitive matters
b. restricted circulation of sensitive documents
c. restricted access to files
d. strong firm policy against breach, including sanctions, physical
and/or geographical separation[.]
Id. at 280 (quoting Maritrans, 602 A.2d at 1289).
Finally, the burden of proving compliance with the screening exception
of Rule 1.10(b) is on the law firm whose disqualification is sought. See
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Dworkin, 906 F. Supp. at 279; Rippon, 2014 Pa. Dist. & Cnty. Dec. LEXIS
1, at *14-15 (collecting federal cases).
Before analyzing the Dworkin factors, we recite below the trial court’s
verbatim reasoning for declining to disqualify the Munley firm:
In looking at the substantiality of the relationship between
the attorney (Mulcahey) and the former client ([Appellant]), while
it certainly appears that Mulcahey represented [Appellant] during
his time at Lenahan [] on numerous matters, upon closer
inspection, a significant number of those matters did not involve
the “same or substantially similar” types of cases as are presented
in Darrow. . . . Additionally, Mulcahey was one of several
attorneys in the Lenahan [] firm servicing [Appellant]. . . .
Considering the time lapse between the matters in dispute,
although the record does not disclose the last [Appellant] case
Mulcahey worked on while at Lenahan [], we do know that he
joined the Munley firm in February 2014. It also appears that the
Munley firm’s involvement in the Darrow case commenced
shortly before the filing of the writ of summons in 2017.
Considering the size of the [Munley] firm and the number of
disqualified attorneys, the record suggests the Munley firm
consists of ten attorneys, several of whom ha[ve] prosecuted
cases against [Appellant] both before and after Mulcahey’s
association with the Munley firm. In considering the nature of the
disqualified attorney’s (Mulcahey) involvement, the record reflects
that he prepared a request for production of documents in pre-
complaint discovery and may have attended discovery court to
argue against [Appellant’s] objections to his discovery requests
prior to the time of his disqualification. . . . The timing of the
wall is troublesome … in the Darrow matter. The record
reflects that the wall was established subsequent to our Opinion
and Order in August 2019. The testimony of Andrea Martino[7]
reflects that it was put in place in September 2019. This is more
than two years after the commencement of the Darrow matter.
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7 This is the first of the trial court’s three incorrect identifications of the witness
as Andrea Martino (Appellant’s legal operations manager), when the court
presumably meant Maria Elkins (Munley’s chief operations officer). We
italicize the error, which was likely an oversight, although the error could be
viewed as a factual finding not supported by the record.
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With respect to the features of the wall itself, while they
could benefit from some improvements, we find that they pass
muster. Andrea Martino testified regarding the prohibition of
discussion of sensitive matters, the restriction placed on the
circulation of sensitive documents and access to files, and the
strong firm policy against breach, including sanctions. In addition,
Mulcahey’s testimony reflects that he had no discussion with any
other members of the Munley firm regarding [the Darrow case],
and there is nothing in the record to contradict that. …
[] Conclusion.
We find Attorney Mulcahey’s testimony credible.
Additionally, Andrea Martino’s skepticism as to whether Mulcahey
communicated any inside information from [Appellant] to the
Munley firm buttresses Mulcahey’s testimony that he has not.
Considering all the factors we must, and in light of the testimony
of the Munley firm’s representative with respect to its screening
process, we will not disqualify the Munley firm from pursuing [the
Darrow case]. We cannot ignore the choice made by [Darrow] …
to choose [his] counsel. See Comment 4 to Pa.R.P.C. 1.9
[(stating, inter alia, “the Rule should not be so broadly cast as to
preclude other persons from having reasonable choice of legal
counsel.”)]. We find that Munley [] has met its burden . . . in
demonstrating that its screening process is adequate.
Memorandum and Order, 1/26/21, at 7-9 (footnote, italics and emphasis
added; citation modified; some capitalization omitted).
Upon review, we disagree with the trial court’s weighing of the Dworkin
factors and address each in turn.
Factor 1 - Substantiality of the relationship between Mulcahey and Appellant
There is no question Mulcahey had a substantial relationship with
Appellant; he represented, i.e., defended Appellant, in numerous lawsuits
over a period spanning nearly two decades. During that time, Mulcahey was
privy to proprietary information, including information pertaining to
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Appellant’s internal operations and litigation strategy. Concerning this factor,
Appellant argues:
The trial court’s determination, that “while it appears that
Attorney Mulcahey represented [Appellant] during his time at
Lenahan [] on numerous matters, upon closer inspection, a
significant number of those matters did not involve the ‘same or
substantially similar’ types of case as are presented in Darrow”
[Opinion and Order, 8/9/19, at 7], is both unsupported by the
record and conflicts with the trial court’s own prior decision to
disqualify Attorney Mulcahey from representing [Appellant] in the
underlying action.
Appellant’s Brief at 23. We agree. As discussed above, in disqualifying
Mulcahey, the trial court found “[n]othing is presented by either side here to
support even an inkling that this case would not be substantially related to
other cases involving downed utility wires.” Opinion and Order, 8/9/19, at 3.
The record supports this conclusion. See id.; see also N.T. (motion to
disqualify hearing), 1/4/19, at 35 (counsel for Darrow conceding that during
Mulcahey’s prior representation of Appellant, Mulcahey “worked on other
[electrical utility] pole cases”). This factor weighs in favor of disqualification.
Factor 2 - The time lapse between the instant case and Mulcahey’s prior
representation of Appellant
The record indicates a time lapse of approximately 3-4 years between
representations. This factor does not weigh in favor of disqualification.
Factor 3 - Size of Munley and number of disqualified attorneys
The Munley firm is relatively small, consisting of approximately 10
attorneys. A law firm’s small size is “a detriment rather than an asset in
implementing an effective screen” because there is more contact between the
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attorneys. Dworkin, 906 F. Supp. at 280 (citation omitted); see also Royal
Bank of Pa., 2006 Phila. Ct. Com. Pl. LEXIS 147, at *9; 2006 WL 771457, at
*3 (relatively small size of 14-attorney firm was a factor in finding screening
protocol ineffective). This factor weighs in favor of disqualification.
Factor 4 – The nature of Mulcahey’s involvement
Mulcahey was counsel of record for Darrow and had significant
involvement in the case for more than two years prior to his disqualification
in August 2019. Mulcahey filed the action, propounded discovery,
communicated with opposing counsel, consulted with an expert, and visited
the accident scene with an expert. See, e.g., N.T., 1/24/20, at 113-15; 116.
This factor also weighs in favor of disqualification.
Factor 5 – The timing of the wall
This factor heavily weighs in favor of disqualification. The trial court
correctly described the timing of the wall as “troublesome.” The record reveals
Munley had no screening protocol in place between the time Mulcahey filed
the action in June of 2017 until September 2019. See id. at 71-72, 79-80,
116. During that time, Mulcahey performed multiple functions as Darrow’s
attorney. Cf. Dworkin, 906 F. Supp. at 280 (noting importance of screening
protocol “at the time when the potentially disqualifying event occurred, either
when the attorney first joined the firm or when the firm accepted a case
presenting an ethical problem.” (emphasis added; citation and quotation
marks omitted); Rippon, 2014 Pa. Dist. & Cnty. Dec. LEXIS 1, at *14 (stating
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disqualification of law firm employing an attorney with conflict of interest
under Rule 1.9 “can be avoided,” pursuant to Rule 1.10(b), “when a proper
screen . . . is established prior to the arrival of the new attorney at the firm
and when it is a formal, written, screening procedure.” (emphasis added)).
Final factor – The features of the wall
This factor also favors disqualification. The record establishes that (a)
none of the attorneys at Munley, including Mulcahey, signed a written
screening protocol (nor has Munley produced a writing); (b) Mulcahey has not
seen any writing detailing the screening protocol; and (c) Mulcahey testified,
“I don’t know what it [the screening protocol] states[.]” N.T., 1/24/20, at 81,
117; see also Pa.R.P.C. 1.0, cmt. 9 (“To implement, reinforce and remind all
affected lawyers of the presence of the screening, it may be appropriate for
the firm to undertake such procedures as a written undertaking by the
screened lawyer to avoid any communication with other firm personnel and
any contact with any firm files or other information[.]”). Further, Elkins
testified she never created a screening protocol prior to this case. N.T.,
1/24/20, at 79-80; see also id. at 81-82 (Elkins stating she did not review
screening requirements prior to establishing the screen).
Considering the above factors, we conclude that Munley has not met its
burden of establishing compliance with Rule 1.10(b). Additionally, Munley
failed to provide Appellant with prompt written notice that Mulcahey was
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representing Darrow, in violation of Rule 1.10(b)(2). We find the following
rationale persuasive:
A client should not discover from his or her now attorney that his
then attorney, with whom he closely worked, is working for the
opposition and has not disclosed it. The lack of disclosure
raises a specter of impropriety that no ex post facto
Chinese Wall can contain. Put another way, the doubt created
by infidelity can never be cured and the court will not instruct a
party to overlook it so that a one client may have counsel of his
choice, especially when the firm was in a position to avoid the
harm complained of.
Royal Bank of Pa., 2006 Phila. Ct. Com. Pl. LEXIS 147, at *7; 2006 WL
771457, at *2 (emphasis added); see also Pa.R.P.C., Preamble 6 (under the
Rules of Professional Conduct, lawyers and judges “should further the public’s
. . . confidence in the justice system[.]”).
Accordingly, and for the above reasons, we reverse the denial of
Appellant’s motion to disqualify,8 and remand for the entry of an order
precluding Munley and its attorneys from representing Darrow in the
underlying litigation.
Order reversed. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
P.J. Panella joins the opinion.
____________________________________________
8 Darrow repeatedly emphasizes that the protracted dispute regarding
disqualification of Munley/Mulcahey has significantly delayed Darrow’s case.
Nonetheless, we are compelled to disqualify Munley where disqualification is
imperative to Appellant’s right to “receive[] the fair trial that due process
requires.” E.R., 129 A.3d at 526.
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P.J.E. Stevens files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2021
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