Pepper Hamilton Disqualified From Defamation Suit
Donohue said that while the majority found Dougherty didn't waive that issue, she would find that the former client doesn't have to timely challenge the disqualification, but rather has to affirmatively waive any conflict.
"Rule 1.9 clearly requires the attorney to obtain the informed consent of the client when a conflict under the rules exists by, inter alia, making all reasonable and necessary disclosures to the former client and, where appropriate, advising the former client to seek independent legal advice as to whether to provide the requested informed consent or not," Donohue said. "Nothing in the text of Rule 1.9, of the Rules of Professional Conduct generally, is there any suggestion that counsel facing a Rule 1.9 conflict may, rather than affirmatively attempting to obtain informed consent, instead take no action at all vis-à-vis its former client and wait to see if the former client fails to raise it in a timely fashion."
Donohue said the only way to waive a conflict is for the former client to give informed consent. As to the ethical screen, Donohue said it can only be used to permit continued representation of a former client despite a Rule 1.9 conflict only when the conflict is created by a new lawyer to the firm who brings the conflict with him from his prior employment.
"Other than in this situation, which is not present here, an ethical screen will not insulate a law firm from the consequences of a Rule 1.9 conflict of interest," Donohue said.
Before reaching the merits of Dougherty's claims, the Superior Court first had to decide whether the issue was collateral and could be appealed. The trial court deemed the issue interlocutory and refused to certify it for appeal. The Superior Court determined that while other courts have ruled an order disqualifying counsel was not a collateral issue that could be appealed, those cases didn't address whether the denial of such disqualification request was immediately appealable.
"Our review in the instant case discloses that the parties have averred no facts establishing that the order at issue is inextricable from the merits of the case," Musmanno said, noting later that Dougherty presented a "colorable claim of the potential disclosure of attorney work product and breach of attorney-client privilege."
Calls to Pepper Hamilton weren't immediately returned.
Dougherty's attorney, Joseph R. Podraza of Sprague & Sprague, praised the court's ruling and said it explained "the obligation that is owed by lawyers and law firms to their former clients."
(Copies of the 26-page opinion in Dougherty v. Philadelphia Newspapers, PICS No. 14-0218, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •