Dougherty v. Philadelphia Newspapers, PICS Case No. 14-0218 (Pa. Super. Feb. 11, 2014) Musmanno, J. (26 pages).

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Appellate Law - Civil • Interlocutory Appeal • Disqualification of Counsel

Dougherty v. Philadelphia Newspapers, PICS Case No. 14-0218 (Pa. Super. Feb. 11, 2014) Musmanno, J. (26 pages).

The Pennsylvania Superior Court denied defendants' application to quash an appeal, and reversed the trial court's denial of plaintiff's motion to disqualify a law firm from representing any party, witness or participant in the case.

Plaintiff filed a defamation proceeding against Philadelphia Newspapers and a number of individual defendants, claiming that defendants engaged in a campaign to harm plaintiff's reputation by publishing a series of articles and editorials disparaging plaintiff at a time when he was running for public office.

In October 2012, plaintiff filed a motion to disqualify the law firm of Pepper Hamilton LLC. Plaintiff had previously retained Pepper regarding an open federal investigation related to a grand jury subpoena. Plaintiff argued Pepper was privy to confidential communications, advised plaintiff concerning the grand jury subpoena and was present during a search of plaintiff's home. The trial court denied plaintiff's motion to disqualify, as well as his request to certify the order for immediate appeal. Plaintiff subsequently filed a notice of appeal. Defendants filed a motion to quash, arguing that the denial of a motion to disqualify counsel was interlocutory and not appealable. Defendants also asserted that Pepper had imposed an ethical screen to separate its present counsel from those who had previously represented plaintiff, so there was no risk of improper disclosure of materials.

The Superior Court held that the order denying plaintiff's motion to disqualify counsel was appealable as a collateral order, because plaintiff had averred facts sufficient to establish a colorable claim that potential disclosure of attorney work product and breach of the attorney-client privilege would result in irreparable harm. Therefore, the court denied defendants' motion to quash the appeal.

With regard to plaintiff's underlying motion to disqualify counsel, the court found plaintiff had alleged a past attorney-client relationship with Pepper, and that the subject matter of that prior representation was substantially related to the present matter. The court held that under Pa.R.P.C. 1.9 and 1.10, Pepper would be barred from representing any of the defendants. Additionally, the court concluded that plaintiff had not waived the conflict of interest by delaying too long in filing his motion to disqualify.

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