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Gas-A-Tron of Arizona v. Union Oil Co, Calif

United States Court of Appeals, Ninth Circuit
Jul 6, 1976
534 F.2d 1322 (9th Cir. 1976)

Summary

holding that an order disqualifying counsel or refusing to disqualify counsel will not be disturbed if the record reveals "any sound basis" for the court's order

Summary of this case from Cuevas v. Joint Benefit Trust

Opinion

Nos. 74-3287, 74-3288, 74-3289 and 74-3290.

January 14, 1976. As Modified on Denial of Rehearing and Rehearing En Banc April 29, 1976. Rehearing En Banc Denied July 6, 1976.

Daniel L. Berman (argued), Salt Lake City, Utah, for appellants.

William Simon (argued), of Howrey, Simon, Baker Murchison, Washington, D.C., for appellee (Shell Oil).

Robert L. Norris (argued), Houston, Tex., for appellee (Exxon).

Appeal from the United States District Court for the District of Arizona.

Before BROWNING and HUFSTEDLER, Circuit Judges, and RENFREW, District Judge.

Honorable Charles B. Renfrew, Northern District of California, sitting by designation.


OPINION


The district court disqualified all lawyers in the firm of Berman and Giauque ("Berman") from, representing the plaintiffs in these private antitrust actions brought against several major oil companies, including Shell Oil Company ("Shell") and Exxon Corporation ("Exxon"), for as long as these corporations were defendants. Berman appeals. The disqualification order was based on the district court's conclusion that disqualification of the whole firm was necessary to prevent any appearance of impropriety that might result because Berman had hired a young associate who had previously worked for a large law firm that had represented Shell and Exxon in other cases.

The two antitrust cases were assigned to different district judges. For the purpose of ruling upon Shell's and Exxon's disqualification motions, the cases were consolidated and the motions were heard and decided by both district judges sitting together. We discuss the case as if a single district judge had issued the order.

Late in 1973, Berman filed these actions against Exxon, Shell and others claiming that they violated the antitrust laws in various respects in their relationships with their dealers and other marketers of refined petroleum products through the United States, with particular emphasis on the West Coast area. In February 1974, Berman hired Richard D. Burbidge as an associate. Mr. Burbidge had been employed by the Los Angeles firm of McCutchen, Black, Verleger Shea ("McCutchen"), as an associate from August 1, 1972 until January 31, 1974. McCutchen had represented Shell and Exxon in a variety of matters, including some antitrust cases, over a period of many years. During his employment with McCutchen, Burbidge worked on four cases in which that firm represented Shell: (1) He spent 32 hours on an action against Shell filed by a manufacturer to recover the price of a storage tank delivered to Shell. (2) He spent 50.1 hours drafting pleadings and a memorandum in an unlawful detainer action by Shell against one of its dealers. (3) He logged 31.9 hours drafting motions to defeat an action against Shell by a landlord contending that Shell had failed to occupy a service station in violation of a lease provision. (4) He logged about 19 hours formulating a settlement of an action against Shell by one of its former dealers who claimed that Shell had wrongfully terminated his dealership. Mr. Burbidge performed no services in any case on behalf of Exxon. However, he did represent a former Exxon employee in a slander action against the employee and Exxon in which Exxon paid the former employee's legal fees, including compensation for 38.9 hours that Mr. Burbidge noted on his time sheets. Mr. Burbidge also examined a memorandum filed in court by Exxon in support of its motion to dismiss a different class action. In short, Mr. Burbidge performed an assortment of tasks commonly handled by young associates in large law firms, and, among these, he worked on litigation directly and indirectly affecting cases that his firm undertook for Shell and Exxon.

The McCutchen firm retained a large volume of files relative to litigation and other matters that the firm had handled for Shell and Exxon over the years. It is undisputed that these files contained confidential material and that many lawyers in the McCutchen firm had personal knowledge of confidences received from Shell and Exxon. However, Mr. Burbidge flatly denied that he ever reviewed any of the files other than those in the cases earlier described, and he also denied that he received any confidential information from anyone about Shell and Exxon while he was employed by McCutchen. His testimony is uncontradicted.

We fully agree with the following principles stated by the Third Circuit in Richardson v. Hamilton International Corp., 469 F.2d 1382 (1972):

"Whenever an allegation is made that an attorney has violated his moral and ethical responsibility, an important question of professional ethics is raised. It is the duty of the district court to examine the charge, since it is that court which is authorized to supervise the conduct of the members of its bar. The courts, as well as the bar, have a responsibility to maintain public confidence in the legal profession. This means that a court may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety.

"[T]he regulation of attorneys appearing before the district court in these matters will be disturbed only when, on, review of the record, we can say that the district court abused its permissible discretion." [Footnotes omitted. 469 F.2d at 1385-86.]

We recognize that the primary responsibility for controlling the conduct of lawyers practicing before the district court lies with that court, and not with us. We will not disturb the district court's exercise of its discretion in fulfilling that responsibility if the record reveals any sound basis for its discretion disqualifying or refusing to disqualify a lawyer. The record in this case does not support the district court's decision. The district court's disqualification of Mr. Burbidge rested upon its determination that the pending litigation was "substantially related" to the matters in which he had previously represented Shell and Exxon while he was associated with McCutchen. Mr. Burbidge's situation was almost identical to that of the young associates whose claimed disqualification was considered in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975), and Bonus Oil Co. v. American Petrofina Co., No. CV-73-L-165 (D.Neb., May 1, 1975). ( See also Redd v. Shell Oil Co., Civ. No. C-104-71 (D.Utah, Sept. 2, 1974), rev'd on other grounds 518 F.2d 311 (10th Cir. 1975) (in another case involving Mr. Burbidge, Berman and McCutchen, district court found motion for disqualification a sham). In each case, the court decided that the associate was not disqualified because no substantial relationship existed between the pending litigation and the matters upon which he had worked for the client during his prior association. We agree with the reasoning in those cases. Here, as in those cases, the associate had not actually obtained any confidential information about either Shell or Exxon that would be relevant to the pending litigation, and he had not worked on matters that were "substantially related" to the pending litigation.

Unlike Chugach Electric Ass'n v. United States District Court, 370 F.2d 441 (9th Cir. 1966), the record provides no basis for an inference that Mr. Burbidge gained any actual knowledge of the private affairs of Shell or Exxon that could have been used by him in these antitrust cases.

We share the district court's concern for the appearance of impropriety. However, we are convinced that any initial inference of impropriety that arose from Mr. Burbidge's potential physical access to the files of Exxon and Shell and from his association with lawyers who did know confidential information about them was dispelled by evidence that he saw none of the files other than those relating to the cases assigned to him heretofore described and that he heard no confidences about Exxon and Shell from the lawyers with whom he was earlier associated.

Berman's disqualification was based solely on Mr. Burbidge's disqualification, and that disqualification vanishes with Mr. Burbidge's nondisqualification.

Reversed.


Summaries of

Gas-A-Tron of Arizona v. Union Oil Co, Calif

United States Court of Appeals, Ninth Circuit
Jul 6, 1976
534 F.2d 1322 (9th Cir. 1976)

holding that an order disqualifying counsel or refusing to disqualify counsel will not be disturbed if the record reveals "any sound basis" for the court's order

Summary of this case from Cuevas v. Joint Benefit Trust

reversing district court's disqualification where attorney was an associate at a large law firm who, although she had physical access to files and worked with lawyers who knew confidential information, saw no confidential files, heard no confidential information, and did not work on any matters "substantially related" to the pending litigation

Summary of this case from Loop AI Labs Inc. v. Gatti

reviewing for abuse of discretion a district court's disqualification decision

Summary of this case from Cusano v. Klein

In Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322, 1324-25 (9th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976), the Ninth Circuit said that a district court's discretion in regulating the ethical conduct of counsel will not be interfered with "if the record reveals any sound basis" for the district court's determination.

Summary of this case from In re Intern. Med Prosthetics Research Assoc

In Gas-A-Tron and Silver Chrysler, unlike the instant case, if there existed any appearance of impropriety, it was de minimis.

Summary of this case from Schloetter v. Railoc of Indiana, Inc.

noting that a district court may use its discretion to disqualify an attorney if there is a sound basis for doing so

Summary of this case from Quatama Park Townhomes Owners Ass'n v. RBC Real Estate Fin., Inc.

noting that a trial court's authority to disqualify an attorney derives from the power inherent in every court to control the conduct of its ministerial officers, in the furtherance of justice

Summary of this case from Dimenco v. Service Employees International Union

rebutting presumption that all members of the firm acquire clients' confidences

Summary of this case from U.S., Lord Elec. Co. v. Titan Pac. Const.

In Gas-A-Tron of Arizona v. Union Oil of California, 534 F.2d 1322 (9th Cir. 1976) the Court held that the disqualification of an attorney was improper.

Summary of this case from United States v. Catalanotto

In Gas-A-Tron, the Ninth Circuit ruled that the district court had exceeded its discretion in disqualifying an attorney on the ground that he had, while employed at another firm, access to confidential information concerning the defendant oil company.

Summary of this case from Lim v. Citizens Sav. and Loan Ass'n

In Gas-A-Tron of Arizona v. Union Oil Co. of California (9th Cir. 1976) 534 F.2d 1322, the court of appeals recognized the principle that a lawyer may be disqualified from representing a party against a former client where he may be in a position to use confidential information against such client, but held that the principle had been wrongly applied in the case.

Summary of this case from Chronometrics, Inc. v. Sysgen, Inc.

In Gas-A-Tron, for example, the court held that any appearance of impropriety was dispelled by evidence that the associate did not see any of the files in question.

Summary of this case from Bicas v. Superior Court

In Gas-A-Tron, the "Berman" firm filed actions against Exxon, Shell and others claiming violation of the anti-trust laws. Shortly thereafter, Berman hired Burbidge, a former employee of the "McCutchen" law firm for approximately one and a half years, as an associate.

Summary of this case from Bicas v. Superior Court
Case details for

Gas-A-Tron of Arizona v. Union Oil Co, Calif

Case Details

Full title:GAS-A-TRON OF ARIZONA AND COINOCO, PLAINTIFFS-APPELLANTS, v. UNION OIL…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jul 6, 1976

Citations

534 F.2d 1322 (9th Cir. 1976)

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