Loading...
HomeMy WebLinkAbout02-16-89 (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 CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY Plaintiffs vs. NO. 66 EQUITY 1988 ROBERT M. MUMMA, II, Defendant ---------------------------------------------------------------- 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 CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION Plaintiffs vs. NO. 21-86-398 ROBERT M. MUMMA, II, BARBARA M. McCLURE, AND LINDA M. ROTH, Defendants MOTION FOR ORDER PURSUANT TO 42 PA.C.S. S702(b) CERTIFYING QUESTION FOR INTERLOCUTORY APPEAL Robert M. Mumma, II ("Mr. Mumma"), defendant herein, submits this motion pursuant to 42 Pa.C.S. S702(b), for an order certifying, for interlocutory appellate review, this Court's order of February 13, 1989, denying Mr. Mumma's motion to '.::: ~/ "\ ~.."J ,/ '.'""" disqualify Morgan, Lewis & Bockius ("Morgan, Lewis") as counsel to plaintiffs. Because this Court's order and opinion construe legal principles upon which there exists substantial difference of opinion and appellate review at this juncture will materially advance the ultimate termination of this matter, such an order is proper. An order denying a motion to disqualify counsel is appealable only by permission pursuant to 42 Pa.C.S. S702(b) and Pa.R.A.P. 1311(a). Flood v Bell, 287 Pa. Super. 515, 430 A.2d 1171 (1981). Section 702(b) of the Judicial Code, 42 Pa.C.S. S702(b) recites: (b) Interlocutory appeals by permission.-- When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state n such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such order. Id. See also Pa.R.A.P. 1311 (describes procedure for taking interlocutory appeals by permission). Interlocutory review is proper under S702(b) when "(1) the law is unsettled; and (2) judicial economy appears to be served by the grant of the petition for permission to appeal." 1 G. Darlington, K. McKeon, -2- " "..' 'j ~ \,.. '....." D. Schuckers & K. Brown, Pennsylvania Appellate Practice ~1312:7 (1986) . Here, the requirements for interlocutory appellate review are clearly present. First, the Court's opinion makes clear that what is at issue are primarily, if not exclusively, controlling questions of law. Most of the facts were found in accordance with the proof offered by the defendant Mr. Mumma.l Defendant's position is that these facts must ineluctably lead to the conclusion that there was an attorney-client relationship regarding the advice and the drafting of the tenants-in-common agreements. Several examples of the "difference of opinion" as to the law will suffice. 1. The few factual findings as to which defendant takes exception are probably due to the inability to layout clearly the facts during a compact hearing unaided by oral summation. For example, the Court states that Morgan, Lewis' mutual representation of Mr. Mumma included advice as to the disclaimer (page 13), whereas that part of the representation came later and, significantly, after the representation as to the tenants- in-common agreements. Also, the Court found that, in giving legal advice to Mr. Mumma in writing, Morgan, Lewis advised him that it "was writing at the request of the Estate." (page 14) The reference (to Defendant's Exhibit No.3) was to a letter from a Morgan, Lewis associate to Mr. Mumma, stating: "At Lisa Mumma's request, I enclose herein. . ." Mrs. Morgan, at that time, was a colleague of the associate -- working with her in Philadelphia. Therefore, there is no permissible inference that the advice was being furnished at the request of the Estate. On the contrary, Mr. Klein, who also wrote to Mr. Mumma (his client) with legal advice on the subject, sent blind copies to Mrs. Mumma and Mrs. Morgan. -3- .3 7;) The Court relies on Stainton v. Tarentino, 637 F.Supp. 1051 (E.D. Pa. 1986) for the proposition that there was no attorney-client relationship between the plaintiff and the defendant where the defendant lawyer drafted some agreements for a partnership in which the defendant lawyer and the plaintiff were the two partners. At issue in Stainton, which, as pointed out by Judge Katz, was a very unusual case, was whether the defendant had some sort of all encompassing fiduciary obligation to the plaintiff, unrelated to the drafting of the agreements. If Stainton is to stand for the proposition that an attorney who represents one partner and the partnership never will be held to represent all the partners (and we submit that this certainly was not intended by Judge Katz) then it is contra to a significant body of cases dealing with joint representation. These decisions hold that, where an attorney represents all of the partners or shareholders with regard to a matter and then a dispute arises among them as to that matter, the attorney may not get involved on anyone's side. See the following cases cited in our memoranda: Gross v Specter, 17 D. & C.3d 281 (C.P. Phila. 1980); St. Albans Fin. Co. v. Blair, 559 F.Supp. 523, 526 (E.D. pa.) (Shapiro, J.), aff'd, 725 F.2d 670 (3d Cir. 1983); Brennan's Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979). -4- ;; ...., (.. '.,J ,,' ...:;i which there is substantial ground for difference of opinion, the As a second example of a controlling issue of law as to Court emphasized in its opinion that "courts are reluctant to grant such a serious remedy" (page 11) and pointed out that Mr. Mumma had failed to carry his burden of persuasion (page 11). Also, the Court found that Morgan, Lewis did not tell Mr. Mumma that it was not representing him with regard to the tenants-in- common agreements (page 6), but the Court did not even discuss any possible obligation on Morgan, Lewis to make clear the nature of the relationship. Finally, the Court's opinion seems to imply that Morgan, Lewis had a primary duty of loyalty to the Estate. Defendant's pre-hearing (PRE) and post-hearing (POST) memoranda have pointed out contrary legal authority for these various propositions as follows: * Doubts as to the existence of an asserted conflict of interest should be resolved in favor of disqualification. PRE at 8. * In estate administration the identity of the client may be unclear. It is the lawyer's burden to make clear the relationship. POST at 8. * Anytime an attorney finds himself representing potentially differing interests, it is his burden to give notice and a full explanation to all involved. (Pennsylvania Supreme Court.) POST at 8. * When an attorney represents two clients, there can be no primary loyalty to one or -5- ~3 :/ {~ the other. He may not give advice to one client which adversely affects the other client without a knowing waiver, fully explained. POST at 15-17, 25-29. As a final example of a controlling issue of law as to which there is a difference of opinion, the Court relied heavily upon Mr. Mumma not being charged personally for the tenants-in-common legal services (page 14) and does not mention that Mr. Mumma testified that he assumed that the liquidated companies themselves will be charged. In this regard, it should be mentioned that, in Stainton, cited by the Court, Judge Katz found that the attorney who drafted agreements for his partnership represented the partnership as well as himself. The Court does not cite authority for the proposition that the payment of fees is determinative. Defendant has cited Hendershot v. Hendershot, 28 D. & C.3d 239 (C.P. Fulton 1982), to the contrary. As to the final requirement under section 702(b), interlocutory review of this order will ensure that judicial resources are properly conserved. Should Mr. Mumma successfully challenge the propriety of Morgan, Lewis' representation of plaintiffs post-trial, a new trial will then be necessary. The most expeditious route to the proper resolution of this issue is to allow appellate review of this difficult and sensitive issue at this point. -6- ~i , , Certifying this matter for interlocutory appeal at this point will also help to uphold one of the most important principles which the Rules of Professional Conduct are intended to engender -- respect by the lay public for the courts and the legal profession. As the preamble to the new Rules of Professional Conduct recites, "[t]he profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self- interested concerns of the bar." The Supreme Court of Pennsylvania has long adhered to this principle, i.e., that rules governing attorney conduct must place the interests of the lay public above all else. For example, in Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), the Court upheld, over a constitutional challenge, the Code of Professional Responsibility's ban on certain noxious forms of client solicitation. The opinion makes clear the Court's concern for those individuals dealing with attorneys driven by influences other than the lay individuals' well-being. Here, Mr. Mumma dealt openly with the attorneys who are now suing him. This Court, in a well reasoned opinion, has found that an attorney-client relationship did not exist in the situation in question. However, we submit that fairness dictates that Mr. Mumma should have a meaningful opportunity for review of this -7- ?.., \-.l;' ? decision, particularly given the seeming conflict among the legal precedents on this issue. Dated: February 16, 1989 Respectfully submitted, vu ohn B. Fowler, III FOLER, ADDAMS, SHUGHART & RUNDLE .0. Box 208 28 South Pitt Street Carlisle, PA 17013 (717) 249-8300 Jon A. Baughman Anthony Vale PEPPER, HAMILTON & SCHEETZ 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Attorneys for Defendant Robert M. Mumma, II -8- J ?,' CERTIFICATE OF SERVICE I, JOHN B. FOWLER, III, certify that on this day a copy of Defendant's Motion for Order Pursuant to 42 Pa.C.S. S702(b) Certifying Question For Interlocutory Appeal was served by hand delivery upon the following counsel: John F. Stillman Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103 William F. Martson Martson, Deardorff, 10 East High Street Carlisle, PA 17013 (1 Williams & Otto 7~.#- DATED: February 16, 1989 (/ -"g' " ' '--~) } {,) ~ ) I "!J o ! to ~ 'm ) ~ I ?J i ~:na ~ > i ~ p ~ ilj g ~~~~~i , to) to<. ~ 0 .; l;I ; :u m Ij; ~ ,fl1 :E q i~ ~ ilj >'l ~ ~ \ ---- <B'-- ~ -D ;/ 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 CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY Plaintiffs vs. NO. 66 EQUITY 1988 ROBERT M. MUMMA, II, Defendant ---------------------------------------------------------------- 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 CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION Plaintiffs vs. NO. 21-86-398 ROBERT M. MUMMA, II, BARBARA M. McCLURE, AND LINDA M. ROTH, Defendants ORDER AND NOW, on this day of February, 1989, this Court's Order of February 13, 1989, denying defendant Robert M. Mumma's motion to disqualify Morgan, Lewis & Bockius is amended to reflect this Court's opinion that such order involves a controlling question of law as to which there is substantial 3?n ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter. J. 3 'II