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HomeMy WebLinkAbout02-13-89 (2) BARBARA McK. MUMMA AND LISA M. MORGAN, individually and as executrixes of the ESTATE OF ROBERT M. MUMMA, Deceased, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY Plaintiffs V ROBERT M. MUMMA, II, Defendant NO. 66 EQUITY 1988 BARBARA McK. MUMMA AND LISA M. MORGAN, individually and as executrixes of the ESTATE OF ROBERT M. MUMMA, Deceased, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION Plaintiffs . . V . . ROBERT M. MUMMA, II, BARBARA M. McCLURE, AND LINDA M. ROTH, Defendants NO. 21-86-398 IN RE: DEFENDANT ROBERT M. MUMMA. II'S MOTIONS TO DISQUALIFY MORGAN. LEWIS Ii BOCltIUS FROM LEGAL REPRESENTATION OF THE ESTATE OF ROBERT M. MUMMA. DECEASED BEFORE SHEELY. P.J. ORDER OF COURT '""'; AND NOW, this /3 rei -. day of February, 1989, defendant's motion to disqualify the law firm of Morgan, Lewis & :J'i Bockius from legal representation of the Estate of Robert M. Mumma, deceased, is DENIED. By the Court, ~/ arold '.P ~~ '_~ , ::I ~ ';:~~-1 ,_.,- ...,-:,....' ;-.. ~ i....... _' ~ ,-,...,e ~.~_i,_" ."'0 ,. .a: -:z:. \.>- C"'\ -:r:.4. ~-?-;, - ~~ 'a:. .~ 0,,", 0...... ""'..... . CS) ~~ ~:J: c>c> .....j3 <.>w iC cl ~"" Thomas M. Kittredge, Esquire John F. Stillmun, III, Esquire William F. Martson, Esquire For the Plaintiffs John B. Fowler, III, Esquire Jon A. Baughman, Esquire Anthony Vale, Esquire For the Defendants :pbf .." v ,.~i,jJ , . BARBARA McK. MUMMA AND LISA M. MORGAN, individually and as executrixes of the ESTATE OF ROBERT M. MUMMA, Deceased, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY Plaintiffs V ROBERT M. MUMMA, II, Defendant NO. 66 EQUITY 1988 BARBARA McK. MUMMA AND LISA M. MORGAN, individually and as executrixes of the ESTATE OF ROBERT M. MUMMA, Deceased, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION Plaintiffs V ROBERT M. MUMMA, II, BARBARA M. McCLURE, AND LINDA M. ROTH, Defendants NO. 21-86-398 : IN RE: DEFENDANT ROBERT M. MUMMA, II'S MOTIONS TO DISQUALIFY MORGAN. LEWIS & BOCKIUS FROM LEGAL REPRESENTATION OF THE ESTATE OF ROBERT M. MUMMA, DECEASED BEFORE SHEELY, P.J. OPINION AND ORDER OF COURT On January 25, 1989, a hearing was held before this court concerning Robert M. Mumma, II's (Mr. Mumma) motion to disqualify Morgan, Lewis & Bockius (Morgan, Lewis) as counsel for plaintiffs in both of the above-captioned actions. What follows is this court's findings of facts, discussion, and conclusions of law. :- :2 .'( \__)L.' , FINDINGS OF FACTS 1. Robert M. Mumma, II, is a defendant in both of the above actions. 2. The decedant, Robert M. Mumma, died testate on April 12, 1986. 3. On June 5, 1986, letters testamentary for the Estate of Robert M. Mumma were granted to Barbara McK. Mumma and Lisa M. Morgan as executrixes under instruments dated May 19, 1982 and October 12, 1984. 4. Morgan, Lewis represents the plaintiff executrixes, Barbara McK. Mumma and Lisa M. Morgan in both of the above actions and have been legal counsel to the estate since the death of the decedant. 5. At a meeting with Arthur Klein of Morgan, Lewis in Mayor June, 1986, at which all members of the immediate family were present, Mr. Klein explained in detail the provisions of the will and discussed with the family various suggestions and options to pursue regarding the administration of the estate. 6. Mr. Klein of Morgan, Lewis attended this meeting as legal counsel for the estate; however, he did not specifically state that he only represented the estate. 7. During the meeting, Mr. Klein discussed with all present the possibility of the children disclaiming their interest under the will in favor of their children in order to gain some tax benefit by avoiding ndoublen taxation. 8. On August 21, 1986, Mr. Mumma met with Mr. Klein in order to discuss his own personal estate planning needs. , ,. -2- NO. 1526 CIVIL 1988 9. As a result of that meeting, Mr. Mumma retained the legal services of Morgan, Lewis for his own estate planning needs. 10. Mr. Klein began working on Mr. Mumma's estate planning needs, however, by letter dated September 5, 1986, Morgan, Lewis through Mr. Klein, informed Mr. Mumma that Morgan, Lewis represents the Mumma Estate by stating: One matter we discussed which I did not note in the memorandum is that if you or any of your companies were to become involved in negotiations with your father's Estate to buy the operating company (or anything else for that matter), Morgan, Lewis & Bockius would represent the Estate and your would obtain other counsel. I know that Lisa and your mother are satisfied with that understanding and you indicated that you were also. Defendant's Exhibit No.1. 11. Mr. Mumma understood that Morgan, Lewis was only representing him concerning his "estate planning and related matters." Mr. Mumma understood that he would need separate legal counsel if he or any of his companies were to enter negotiations with the Estate to purchase the operating company (pennsy Supply, Inc.) or to purchase anything else for that matter from the Estate. 12. Mr. Mumma provided Mr. Klein with documentation of his financial assets and liabilities in order to facilitate his estate planning. 13. These statements and documentations of Mr. Mumma's financial status were returned to Mr. Mumma. 14. Mr. Mumma has substantial and extensive experience with attorney-client relationships as he has retained at least ';i,tJ/ -3- "'11 NO. 1526 CIVIL 1988 twelve different attorneys to represent him concerning personal as well as business matters. 15. In early January, 1987, Mr. Mumma and Mr. Klein had a discussion concerning Mr. Mumma disclaiming his interest under his father's will in favor of his children. 16. Mr. Mumma authorized Mr. Klein to draft a disclaimer of his interest for his review. 17. Mr. Klein informed Mr. Mumma by letter, dated January 6, 1987, that for the disclaimer to be effective, it must be filed with the Clerk of the Orphans' Court Division of Cumberland County. (Defendant's Exhibit No.7). 18. Mr. Mumma executed the qualified disclaimer of his interest on January 6, 1987, (Plaintiff's Exhibit No.1) and said disclaimer was filed with the Court of Common Pleas of Cumberland County, Orphans' Court Division on January 12, 1987, in Book 115 at Page 20 with the knowledge and authorization of Mr. Mumma. (See, Plaintiff's Exhibit No.1 and No.2). 19. On March 26, 1987, Morgan, Lewis received a retainer in the amount of $20,000 from Mr. Mumma. The $20,000 was drawn from the corporate account of Kimbob, Inc. (Defendant's Exhibit No.8). 20. In November, 1986, Morgan, Lewis counseled the executrixes on the advisability of liquidating two family companies prior to the end of 1986. The two companies were Kim Company and Pennsylvania Supply Company. 21. Mr. Mumma was vice-president of both companies in November, 1986, and as such, was their senior officer. ';,l "'. .' 'I ~~ -4- NO. 1526 CIVIL 1988 22. The shareholders of Kim Company were as follows: Pennsylvania Supply Company (7,241 shares), Mr. Mumma (334 shares), Mrs. McClure (333 shares), Mrs. Roth (333 shares), Mrs. Morgan (333 shares), and Mrs. Mumma (106 shares). 23. The shareholders of Pennsylvania Supply Company were as follows: the decedent (700 shares), Mr. Mumma (3 shares), Mrs. McClure (3 shares), Mrs. Roth (3 shares), and Mrs. Morgan (3 shares). 24. Both Kim Co. and Pennsylvania Supply Company held substantial real estate although they were non-operating. 25. In November, 1986, Morgan, Lewis met with the shareholders of the two above named companies to discuss the possible liquidation of the companies. 26. Present at the meeting in addition to all the shareholders, were Mr. Klein and Mr. Hadley, the family accountant. 27. At the meeting Mr. Mumma raised questions concerning the possibility to liquidating the companies while maintaining their corporate shell or identity for possible future use. 28. All family members/shareholders were concerned with the answer to the above questions although Mr. Klein could not answer the questions without conducting some legal research. 29. After conducting legal research concerning Mr. Mumma's various questions, Mr. Klein sent Mr. Mumma a letter dated November 11, 1986, with a blind carbon copy going to, among others, the executrixes of the estate. The letter contained p, ,i,. -5- './~...., NO. 1526 CIVIL 1988 answers to Mr. Mumma's questions regarding the feasibility and mechanics of the liquidation of the corporations as proposed by Mr. Mumma. (Defendant's Exhibit NO.2). 30. Mr. Klein's associate, Martha E. Manning, sent Mr. Mumma a letter dated December 3, 1986, at Executrix Morgan's request in which Section 1103 of the Pennsylvania Business Corporation Law relating to the dissolution of corporations was relayed to Mr. Mumma. 31. In December, 1986, William Skinner, an associate in the corporate department of Morgan, Lewis, met in Harrisburg with the executrixes and Mr. Mumma to review a draft of a tenants-in-common agreement which concerned the handling of the liquidated assets of Kim Company and Pennsylvania Supply Company. 32. Mr. Skinner appeared at this meeting as legal counsel for the estate, however, he did not mention that Morgan, Lewis was not acting as legal counsel of the shareholders. 33. After the meeting was under way, Mr. Klein participated in this meeting via telephone from Philadelphia to answer questions concerning the proposed agreement and certain changes were suggested by Mr. Mumma. 34. The changes suggested included the right of first refusal provision, which would give any shareholder (who would become a tenant-in-common) the right to buy the interest of any other shareholder who wanted to sell his or her interest. The other suggested change pertained to the ability of the tenant-in- common to pledge their interest, to grant gifts, etc. 3~/J -6- NO. 1526 CIVIL 1988 35. Morgan, Lewis sent all shareholders including Mr. Mumma a revised copy of the tenant-in-common agreement under cover of letter dated March 11, 1987 (Defendant's Exhibit No.4). 36. In December, 1986, Mr. Mumma executed a power of attorney to enable the liquidation of the corporations to proceed while he was in Colorado during the month of January, 1987. 37. During the Spring of 1987, Morgan, Lewis met with the tenants-in-common at the Estate's request to discuss drafts of tenants-in-common agreements as well as the management agreements for the jointly-held properties. 38. During a February or March, 1987 meeting with some of the tenants-in-common present, Mr. Mumma signed two unattached signature pages for the draft agreements. These pages were later attached to the final agreements of the tenants-in-common. 39. In July, 1987, the executrixes called a meeting at Mrs. McClure's home which was attended by all of the tenants-in- common. The meeting was called to discuss the sale of some property in Lemoyne, pennsylvania owned by the tenants-in-common. 40. Mr. Mumma opposed this sale. However, he agreed to sign a power of attorney to permit the sale only upon obtaining the agreement of all the shareholders of Nine Ninety- Nine, Inc. (999) that he would have right of first refusal to buy Pennsy Supply, Inc. 41. No representative of Morgan, Lewis was present at this above meeting. 42. After the meeting, Executrix Morgan consulted with Mr. Klein who advised against the granting of the right of first refusal to Mr. Mumma. ,:,.,1' S -7- NO. 1526 CIVIL 1988 43. Morgan, Lewis continued to represent Mr. Mumma with regard to his personal estate planning needs until August 14, 1987, at which time Mr. Mumma advised Mr. Klein that he would seek other representation. (Defendant's Exhibit NO.9). 44. Morgan. Lewis. by letter dated August 14, 1987, returned $6,100 from the $20,000 retained on Mr. Mumma's account after deducting charges for work performed on his personal estate planning matters as well as the disclaimer matter. (Defendant's Exhibit No.9). 45. Mr. Mumma was not charged for any consultation, legal research or work performed by Morgan, Lewis concerning the tenants-in-common agreements or any other matter of the Mumma Estate. (Plaintiff's Exhibit No.3). 46. On December 27, 1988, a complaint for declaratory judgment and relief was filed by the above plaintiffs at 21-86- 398 of the Cumberland County Court of Common Pleas, Orphans' Court Division. 47. The complaint generally seeks declaratory judgment under 42 Pa. C.S.A. S7533 and 20 Pa. C.S.A. S711 that Article Thirteenth of decedent's will does not bar plaintiffs from selling shares of Nine Ninety-Nine, Inc. (999) and Hummelstown Quarries, Inc. (Humme1stown) owned by the estate to a publicly traded overseas entity. 48. Morgan, Lewis represents the plaintiffs in this current matter before the Orphans' Court. 49. On December 27. 1988. Executrixes Barbara McK. Mumma and Lisa M. Morgan petitioned this court for the Estate of ~~ ' -8- , NO. 1526 CIVIL 1988 Robert M. Mumma, deceased, for declaratory judgment under 42 Pa. C.S.A. ~7533 and for other relief under 20 Pa. C.S.A. Subch. 33C [sic] and p133. 50. The petition generally seeks a confirmation of the petitioners' authority to sell 999 and Hummelstown and certain other related real estate owned by the estate and Mumma family members and for an order under 20 Pa. C.S.A. Subch. 33C [sic] ~7133 that the estate may submit any issues nonselling shareholder raises in connection with the sale of his/her interest in 999 and Hummelstown to voluntary judicial arbitration in the Court of Common Pleas of Cumberland or Dauphin County. 51. Morgan, Lewis represents the petitioners in this matter. 52. On December 27, 1988, a complaint in equity and declaratory judgment at No. 66 Equity 1988 was brought by the above plaintiffs against the defendants in the Cumberland County Court of Common Pleas. 53. The complaint generally seeks a declaratory judgment declaring that the right of first refusal asserted by Mumma with respect to Pennsy Supply, Inc., is invalid and that the Mumma Realty Associates power of attorney executed by Mumma, is valid and enforceable and entitles plaintiffs to act as attorney in fact to execute in Mumma's name the deeds and other documents necessary to complete the sale of Mumma Realty Associates I and Mumma Realty Associates II properties to a proposed buyer; and finally declare that the MRA I and MRA II agreements are valid, enforceable and binding on Robert M. Mumma, ~3 'I? -9- NO. 1526 CIVIL 1988 II and enter an order requiring Mr. Mumma to specifically perform his duties and obligations under the MRA I and MRA II agreements. 54. Morgan, Lewis represents the plaintiffs in this equity matter. 55. On December 29, 1988, Robert M. Frey, Esquire was appointed by this court as Guardian Ad Litem for the minor persons interested in the estate of Robert M. Mumma, deceased, with authorization to represent said minor persons in all matters related to the sale of 999 and Hummelstown and the actions for declaratory judgment and other relief pertaining thereto to actions now pending before this court and in any further proceedings in the Court of Common Pleas of Cumberland or Dauphin County, Pennsylvania. 56. Mr. Mumma does not dispute he intends his qualified disclaimer to be effective, nor does he claim that it is now invalid. DISCUSSION Mr. Mumma's motion to disqualify Morgan, Lewis as legal counsel for the plaintiff in the pending litigation draws our attention to the Rules of Professional Conduct (Rules) as adopted by the Pennsylvania Supreme Court. The Rules became effective on April 1, 1988 and, as such, superseded the former Code of Professional Responsibility (Code). Defendant's motion is based on the argument that Morgan, Lewis represented Mr. Mumma in prior matters which were substantially related to the pending Orphans' Court and Equity matter. In essence, Mr. Mumma alleges that a conflict of ;! ~l<:} ~~~ .. / -10- NO. 1526 CIVIL 1988 interest exists in Morgan, Lewis' continued representation of the plaintiffs. Mr. Mumma points to Rule 1.9 as his authority for his motion. Rule 1.9 reads as follows: Conflict of Interest: Former Client A lawyer who has formerly represented a client shall not thereafter: (a) represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation; or (b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known. Rule 1.9, Rules of Professional Conduct, 42 Pa. C.S.A. (Purdon Supp. 1988). In considering a motion for disqualification of a party's legal counsel, courts are reluctant to grant such a serious remedy because when presented with such a serious request, courts must be careful "to preserve a balance. delicate though it may be. between an individual's right to his own freely chosen counsel and the need to maintain the highest ethical standards of professional responsibility." Slater v. Rimar. ~. 462 Fa. 138, 338 A.2d 584, 590 (1975). Because motions for disqualification are at times interposed for tactical reasons, courts must approach such motions with caution as a client whose attorney is disqualified incurs a loss of time and money in being compelled to retain new counsel who in turn have to become :..II~ ~. 7 -11- NO. 1526 CIVIL 1988 familiar with the prior comprehensive investigation which is the core of modern complex litigation. The client, moreover, may lose the benefit of its long-time counsel's specialized knowledge of its operations. See,~, Government of India v. Cook Industries, Inc., 569 F.2d 737 (2nd Cir. 1978)1 Ries v. MTD Products, Inc., 14 D.&C.3d 566 (1980). pennsylvania's appellate courts have not directly addressed conflicts of interest issues under the newly adopted Rules. However, the comment to the Rules explains that Rule 1.9 merely incorporates the basic elements of Canons 4 (client confidentiality), 5 (loyalty to client), and 9 (appearance of impropriety) contained in the former Code. Thus, the Rules hopefully provide clearer guidance to both the bench and bar when faced with questions of conflict of interest with a former client than was provided by the Code. Under Rule 1.9 the test for disqualification focuses on the analysis of whether the subject matter of the representation of the former client and the present client are "substantially related." In raising a conflict of interest challenge, the burden is on the moving party to establish a violation of Rule 1.9. See, Pa. Power & Liqht v. Gulf Oil Corp., 74 D.&C.2d 431 (1975)1 INA Underwriters Ins. v. Nalibotsky, 594 F.Supp. 1199 (E.D. Pa. 1984). A court in addressing the "substantial relationship" issue must answer the following questions: 1. Did the lawyer have an attorney-client relationship with the former client? 3~ -12- NO. 1526 CIVIL 1988 2. What was the nature and scope of the prior representation at issue? 3. What is the nature of the present lawsuit against the former client? See, INA, supra, Nemours Foundation v. Gilbane, Aetna, Federal Ins., 632 F.Supp. 418 (D. Del. 1986). Under the present facts, there is no dispute that an attorney-client relationship existed between Morgan, Lewis and Mr. Mumma. Thus, the thrust of our analysis moves onto the nature and scope of that prior representation. Mr. Mumma argues that Morgan, Lewis represented him not only in his own personal estate planning needs and disclaimer needs, but so, too, did Morgan, Lewis represent him with regard to the negotiations and liquidations of Kim Company and Pennsylvania Supply Company and the formation of the related tenancy-in-common. We do not believe that the facts of this case, nor the applicable law in regards to this matter, adequately supports Mr. Mumma's argument. In reaching this conclusion, our attention is first drawn to the letter, dated September 5, 1986, in which Mr. Klein clearly states to Mr. Mumma the terms of Morgan, Lewis' representation. (Defendant's Exhibit No.1). In that letter, Mr. Klein clearly stated that he was employed by Mr. Mumma solely for estate planning purposes and disclaimer purposes under Mr. Mumma's father's will. Moreover, Mr. Mumma was given express notice that Morgan, Lewis would not act as Mr. Mumma's attorney if Mr. Mumma entered into negotiations with the Estate for the purchase of any Estate assets. Thus, Mr. Mumma had express notice that Morgan, Lewis' duty of loyalty and representation ,'1,s- / -13- NO. 1526 CIVIL 1988 attached to their representation of the Estate and that no attorney-client relationship could exist with Mr. Mumma if he sought to purchase Estate assets. On further review of the facts, it is clear to this court that Morgan, Lewis' attorney-client relationship with Mr. Mumma did not expand beyond the understanding of the above-noted September 5, 1986 letter. (Defendant's Exhibit No.1). Although there were meetings (both in Harrisburg and in Philadelphia) in which Morgan, Lewis participated, those meetings were attended at all times by the executrixes of the Estate and Morgan, Lewis as legal counsel for the Estate. Even the correspondence that Mr. Mumma received following some of these meetings advised him that Morgan, Lewis was writing at the request of the Estate with regard to questions concerning the dissolution of some corporations in which Mr. Mumma was a shareholder. (See Defendant's Exhibit No.3). We do note, however, that at some of these meetings Mr. Mumma, upon reviewing drafts of documents, had certain questions and suggestions. Because Morgan, Lewis undertook some legal research to answer these questions and suggestions, Mr. Mumma now argues that Morgan, Lewis was acting as his attorney when in fact these legal answers were mutually beneficial to the Estate. Moreover, we take special note that Mr. Mumma was not charged for such legal research. (See, Plaintiff's Exhibit No.3). In addressing a motion for disqualification, the Court of Common Pleas of Lehigh County in Pennsylvania Power & Liqht succinctly summarized the law of Pennsylvania regarding the existence of an attorney-client relationship: 3'- .0 -14- NO. 1526 CIVIL 1988 Although the relationship of attorney and client may be implied from the conduct of the parties, such conduct must evidence an offer or request by the client for legal services and an acceptance of the offer by the attorney. It is clear that an attorney- client relationship exists only with the consent of both parties. [S]uch relationship is "personal. reciprocal, and confidential" and" lilt must be entered into freely, fairly and advisedly by the attorney and client." Such relationship may "not be forced upon one party without the consent of the other." Pennsylvania Power & Liqht, 74 D.&C.2d at 437 (1975) (Citations omitted). Moreover, "Pennsylvania courts have often stressed the consensual nature of the attorney-client relationship." Connelly v. Wolf, Block, Schorr & Solis-Cohen, 463 F.Supp. 914, 919 (E.D. Pa. 1978). Thus. the mere fact that Mr. Mumma relied on the Estate's legal research and received some answers to questions from Morgan, Lewis attorneys (as authorized by the Estate}, is insufficient, in and of itself, to expand the basic attorney- client relationship beyond the original scope of legal representation as noted in the September 5, 1986 letter. Indeed, Mr. Mumma's arguments concerning his expanded legal representation by Morgan, Lewis are no more than unilateral "assumptions" or "understandings" which do not overcome the very clear and precise definition of their relationship from the very start. Mr. Mumma argues, however, that because he reviewed certain documents prepared by Morgan, Lewis for the Estate, Morgan, Lewis had expanded their legal representation of Mr. Mumma. We do not agree. In stainton v. Tarantino. 637 F.Supp. 35-3 -15- NO. 1526 CIVIL 1988 1051 (E.D. Pa. 1986), the court found that an attorney-client relationship did not arise between the attorney and his partners in a real estate partnership even though the attorney had drafted documents for real estate transactions from which the other partners derived a benefit. The court stated that: Although [the attorney] prepared some of the legal documents in the real estate transactions in question, he was performing such work for himself and for the partnership. He was not performing personal legal services in connection with these real estate deals for the [partners], although as his partners in the transactions they benefited from [the attorney's] work. Stainton, 637 F.Supp. at 1066. Similarly, in Pennsylvania Power & Liqht, the court stressed that the mere reliance upon legal work performed for another person that happened to also benefit the party seeking disqualification, is not sufficient to establish an attorney- client relationship. Id., at 437-438. Mr. Mumma's role, like that in Pennsylvania Power & Liqht, was limited to reviewing and commenting upon documents prepared for the Estate by Morgan, Lewis. Moreover, there was no evidence that Mr. Mumma paid any fees to Morgan, Lewis for work in connection with the liquidations, and more importantly any "advice" he may have received was provided to him (as well as to the other shareholders) as a service by the Estate in an effort to persuade him to participate voluntarily in these transactions. Finally, we note the most telling observation is that during this hearing held on January 25, 1989, Mr. Mumma testified repeatedly that he knew Morgan, Lewis was the attorney for the Estate. ~c~1 .~~ ~ -16- NO. 1526 CIVIL 1988 In summary, then, it is clear that Mr. Mumma has failed to carry the burden of persuasion to establish that the existence of an attorney-client relationship extended beyond that of legal counsel for estate planning purposes and disclaimer purposes, to that of legal counsel representing his interests in the company liquidations and tenancies-in-common issues. Moving on, our next question to answer is "what is the nature of the present lawsuit against the former client?" As stated in our findings of fact, the Orphans' Court matter and the Equity matter basically concerns a dispute over the sale of certain Estate assets. More specifically, the Orphans' Court matter focuses on two issues: 1) the interpretation of the decedent's will, and 2) the offering of appraisal rights to Mr. Mumma. At this point we find it necessary to note that although Mr. Mumma seems to find some dissatisfaction with Morgan, Lewis' implementation of the qualified disclaimer under his father's will, Mr. Mumma does not seek to void its effect or intent. Therefore, we find the disclaimer is not at issue or in dispute in either of these pending matters. Thus, the issue of the disclaimer is not "substantially related" to the issues raised in either of the present proceedings. Consequently, Morgan, Lewis' prior representation of Mr. Mumma with regard to the disclaimer is not a basis for disqualification of Morgan, Lewis. Moving on, we find that the thrust of the pending proceedings focuses on will interpretation issues which are clearly unrelated to Morgan, Lewis' prior representation of Mr. Mumma. The other thrust of these proceedings focus on proposed ~ c-, ~}~~ -17- NO. 1526 CIVIL 1988 corporate restructuring and the propriety of offering appraisal rights to Mr. Mumma. These matters, then, are subjects which we find unrelated to Morgan, Lewis' prior representation of Mr. Mumma. The remaining inquiry under the "substantial relationships" test is whether during the course of his representation, Mr. Mumma may have disclosed confidential information to Morgan, Lewis that is now relevant to the issues in the present lawsuits. INA Underwriters, supra. We also note, as the court did in Realco Services, Inc. v. Holt, 479 F.Supp. 867 (E.D. Pa. 1979), that: If a client in a prior representation might have imparted confidential information to his lawyer in dealing with particular issues, and if issues arise in the second suit which would permit the use of such confidences aqainst the original client, the substantial relationship test is met, and disqualification is required. Id., 479 F.Supp. at 871. (Original emphasis). In this case, though, we will not "allow [our] imagination to run free with a view to hypothesizing conceivable but unlikely situations in which confidential information 'might' have been disclosed" which is relevant to the pending suits. INA Underwriters supra. Mr. Mumma's attorney-client relationship with Morgan, Lewis and their legal representation of Mr. Mumma's personal estate planning and disclaimer under this father's will, conceivably included the intimation of confidential financial information. However, we do not believe that that type of information is now relevant to the present lawsuits or will even become an issue. Thus, the size of Mr. Mumma's personal assets ?, <'" -..",' ~. -18- NO. 1526 CIVIL 1988 assets and the size of the tax benefits be stood to gain under the disclosure are not relevant to the present lawsuits, and therefore do not provide a basis for disqualification under Rule 1.9 or the applicable case1aw. CONCLUSIONS OF LAW 1. The subject matter of the pending lawsuits are not substantially related to any prior legal representation Morgan, Lewis provided Mr. Mumma: 2. Any confidential information Morgan, Lewis acquired during their prior legal representation of Mr. Mumma is not now relevant to the pending lawsuits: 3. Morgan, Lewis have not violated Rule 1.9 of the Rules of Professional Conduct in their current representation of the Estate of Robert M. Mumma, deceased. In accordance with these findings of facts, discussion, and conclusions of law, we order: ORDER OF COURT AND NOW, this I J t;A., day of February, 1989, defendant's motion to disqualify the law firm of Morgan, Lewis & Bockius from legal representation of the Estate of Robert M. Mumma, deceased, is DENIED. By the Court, /s/ Harold E. Sheely P.J. "/ """) -, -19- , . NO. 1526 CIVIL 1988 Thomas M. Kittredge, Esquire John F. Stillmun, III, Esquire William F. Martson, Esquire For the Plaintiffs John B. Fowler, III, Esquire Jon A. Baughman, Esquire Anthony Vale, Esquire For the Defendants :pbf L("'" ....~},.) f;) -20-