Judge Wendy Beetlestone recently denied a motion to disqualify counsel based on prejudice to the plaintiff and the defendant’s tactical use of the motion.
The case, Kashi v. McGraw-Hill Glob. Educ. Holdings, LLC, involves Ed Kashi’s copyright claim alleging that McGraw-Hill used several of Kashi’s photographs without his permission.
The motion to disqualify Kashi’s attorneys, Harmon Seidman Bruss & Kerr LLC (“HSBK”), was based on HSBK’s consultation agreement with Mari Masalin-Cooper, a former McGraw-Hill employee. Specifically, McGraw-Hill asserted that Masalin-Cooper, a nonlawyer, revealed confidential information to HSBK in violation of a lawyer’s duty to a former client; the violation was alleged to be attributable to HSBK for its “negligent supervision” of Masalin-Cooper.
The court considered HSBK’s conduct in accordance with Pennsylvania’s Rules of Professional Conduct; specifically, Rules 1.9 and 5.3, pertaining respectively to a lawyer’s duties to former clients and to supervise nonlawyers. Noting that “disqualification is never automatic,” the court applied a balancing test, acknowledging that disqualification is “beset by competing concerns.” The tension between the strict application of the conflict rules and a party’s right to counsel of his choice exemplify some of those concerns.
Ultimately, Judge Beetlestone denied McGraw-Hill’s motion. She held that on balance Kashi would suffer the greater prejudice if he was denied his counsel of choice. She also found that McGraw-Hill had failed to refute HSBK’s claim that much of the information that it received from Masalin-Cooper was available from other witnesses. Finally, Judge Beetlestone concluded that McGraw-Hill’s delay of ten months before filing its motion evidenced a tactical maneuver and therefore constituted a waiver of the remedy of disqualification.
The full opinion can be found here.
Tactical Tactical Tactical
