RENFREW, District Judge.
Plaintiff Pacific Auto Rental Corporation, doing business as Dollar Rent A Car Systems of Hawaii, Inc. ("Pacific Auto"),
Pacific Auto has moved to disqualify the Hawaii law firm of Fujiyama, Duffy, Fujiyama & Koshiba ("the Fujiyama firm") and their co-counsel, the New York law firm of Phillips, Nizer, Benjamin, Krim & Ballon ("Philips Nizer"). Phillips Nizer was originally retained to represent Budget as plaintiff in an action against Hertz Corporation, Avis Rent A Car System, Inc. and National Rent A Car System, Inc., filed in the Northern District of California in April 1977.
Pacific Auto's motion to disqualify the Fujiyama firm and Phillips Nizer is based upon the Fujiyama firm's prior relationship with Pacific Auto. The evidence presented
In October or November 1976, two officers of Pacific Auto, Harry Mehtarian and Alan Robin, met with attorney Wallace S. Fujiyama ("Fujiyama") of the Fujiyama firm and asked Fujiyama to represent Pacific Auto in its efforts to obtain an on-airport car rental concession at the Honolulu International Airport ("Honolulu Airport"). At the hearing on the disqualification motion, Robin, Vice-President of Pacific Auto, testified regarding this meeting with Fujiyama. According to Robin, the primary purpose of the meeting was to discuss entry at the Honolulu Airport, although some mention may also have been made of the Hilo Airport. Pacific Auto had unsuccessfully attempted to obtain a Honolulu Airport car rental concession in 1974 and believed that Budget, Pacific Auto's principal competitor in the discount car rental market in Hawaii, had been involved in blocking their entry. Robin and Mehtarian asked Fujiyama to speak with public officials involved in granting on-airport car rental concessions in order to persuade them that it would be in the public interest to have a Dollar Rent A Car concession at the Honolulu Airport. In the course of this conversation, Robin and Mehtarian discussed with Fujiyama Pacific Auto's corporate goals, financial strengths and weaknesses, use of tax loss carry-forward, pricing and marketing strategy, and fleet size, emphasizing the importance to the company of obtaining a concession at the Honolulu Airport. Robin testified that much of the information imparted to Fujiyama was information that Pacific Auto did not generally make known to the public and would not want to disclose to its competitors. In addition to providing Fujiyama with this background information on the company, Robin and Mehtarian gave Fujiyama a file containing documents related to the company's efforts to obtain on-airport car rental concessions in Hawaii. This file included documents from the legal file kept by the attorney who had represented the company in its earlier attempts to gain entry at the Honolulu Airport.
Although Fujiyama did not wish to establish a fee arrangement at this initial meeting, he explained his usual practices regarding fees and he agreed to contact public officials who might be able to assist Pacific Auto in obtaining a Honolulu Airport car rental concession. Fujiyama explained that it could take some time before he made any progress on the matter. Robin testified that the entire meeting with Fujiyama lasted 1 to 1½ hours.
The affidavit of Harry Mehtarian, submitted in support of plaintiff's motion to disqualify, corroborates Robin's testimony concerning the meeting with Fujiyama. Mehtarian, President of Pacific Auto, specifically states that Fujiyama agreed to assist Pacific Auto in its efforts to obtain a concession at the Honolulu Airport and that during the conversation with Fujiyama, Robin and Mehtarian had emphasized their belief that Budget had opposed Pacific Auto's entry at that airport. The affidavit further states that confidential matters were discussed at the meeting with Fujiyama and that a file regarding Pacific Auto's
Mehtarian's affidavit also describes a later meeting with Rodney Fujiyama, the son of Wallace Fujiyama and an attorney at the Fujiyama firm. According to the affidavit, approximately two months after the initial meeting with Wallace Fujiyama, Mehtarian inquired about the progress being made on the concession application and was advised by Rodney Fujiyama that his father was working on the matter. At this meeting, Rodney Fujiyama and Mehtarian discussed the possibility of the Fujiyama firm handling all of Pacific Auto's and Mehtarian's legal business.
After that meeting, both Mehtarian and Robin repeatedly attempted to contact Wallace Fujiyama by telephone, but they were told that he was unavailable and their calls were not returned. In approximately March 1977, Robin called Dr. Richard Lam, a friend of Fujiyama's who had originally introduced Robin to Fujiyama, and asked Lam to inquire whether Fujiyama had made any progress on the concession application. Robin testified that Lam called back and reported that he had spoken to Fujiyama, who had said that he was working on the matter. Finally, Robin became concerned about the delay and decided he should consult another attorney. In June 1977 Pacific Auto retained the firm of Carlsmith, Carlsmith, Wichman & Case to assist the company in its efforts to gain entry at various Hawaii airports. Upon request, the Fujiyama firm transferred the file obtained from Robin and Mehtarian to the Carlsmith firm. The Fujiyama firm never billed Pacific Auto for its legal services.
Prior to the fall of 1976, the Fujiyama firm had done legal work for Transamerica, the parent corporation of Budget, and Fujiyama states in his affidavit that he disclosed this fact to Robin and Mehtarian at their meeting. In January 1977, after Fujiyama had agreed to represent Pacific Auto, the Fujiyama firm began to represent Budget on various matters, including an antitrust suit that, according to Fujiyama, was not related to this antitrust suit. In June 1978 the Fujiyama firm agreed to serve as co-counsel in the Hawaii action. In doing so, the firm undertook representation of Pacific Auto's adversary in a suit involving issues that are substantially related to the matter on which Fujiyama agreed to represent Pacific Auto.
The complaint in the Hawaii action alleges that Budget and other defendant car rental companies conspired to restrain trade unreasonably and to monopolize trade in the market of car rental concessions on the premises of the Honolulu Airport, in violation of Sections 1 and 2 of the Sherman Act and in violation of antitrust laws of the State of Hawaii. Among other allegations, the complaint states that Budget and the other defendants "[o]pposed in bad faith Dollar's [Pacific Auto's] efforts and applications for entry into the on-airport car rental market at Honolulu International Airport."
Plaintiff's Motion to Disqualify the Fujiyama Firm
Plaintiff's motion to disqualify the Fujiyama firm is based primarily upon Canon 4 of the ABA Code of Professional Responsibility, which states that "[a] lawyer should preserve the confidences and secrets of a client," and upon the Disciplinary Rules and Ethical Considerations pertaining to that canon. Although the ABA Code may be relied upon as setting forth basic principles of legal ethics, the Court notes that under the Local Rules of the Northern District of
Under the Rules of Professional Conduct of the State Bar of California, the Fujiyama firm must be disqualified. Rule 4-101 states:
The primary purpose of this rule is to protect the confidential relationship that exists between attorney and client. Goldstein v. Lees, 46 Cal.App.3d 614, 619, 120 Cal.Rptr. 253, 255 (1975); Jacuzzi v. Jacuzzi Bros., Inc., 218 Cal.App.2d 24, 28, 32 Cal.Rptr. 188, 191 (1963). Under Section 6068(e) of the California Business and Professions Code, "It is the duty of an attorney * * * [t]o maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." In keeping with the policies underlying Section 6068, the California courts have interpreted Rule 4-101 and its predecessor, former Rule 5, as prohibiting an attorney from accepting employment that threatens the revelation or use of a former client's confidences. See Goldstein v. Lees, supra, 46 Cal.App.3d at 620, 120 Cal.Rptr. at 256. The California Supreme Court has stated that Rule 4-101, then Rule 5, should be construed as providing that
Therefore, although this Court does not find that any member of the Fujiyama firm revealed any confidential information received from Pacific Auto or used that information to Pacific Auto's disadvantage in the case at bar, the Court nevertheless concludes that the Fujiyama firm must be disqualified from representing Budget in the Hawaii action. Absent the informed and written consent of Pacific Auto, such representation violates Rule 4-101 of the California Rules of Professional Conduct.
The Fujiyama firm also argues that disqualification is unnecessary because the firm never represented Pacific Auto in litigation and because some of the information Pacific Auto claims to have conveyed to Fujiyama was a matter of public record. This Court cannot conclude that disqualification is inappropriate simply because Fujiyama's representation of Pacific Auto did not involve litigation. As to the confidential nature of the information imparted by Pacific Auto, cases dealing with disqualification have consistently stated that the fact that information provided by the former client could have been obtained through discovery or through inspecting public records is not a sufficient ground for denying a motion for disqualification. See, e. g., NCK Organization, Ltd. v. Bregman, 542 F.2d 128, 133 (2 Cir. 1976); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 572-573 (2 Cir. 1975).
The Fujiyama firm's briefs also emphasize that the firm never reached a fee agreement with Pacific Auto and never billed Pacific Auto for any legal services. In fact, the evidence before this Court suggests that no services were ever performed. Fujiyama states in his affidavit that he did not even review the file of written materials received from Pacific Auto. Although there certainly was very limited contact between the Fujiyama firm and Pacific Auto, the evidence shows that the Fujiyama firm agreed to represent Pacific Auto in its efforts to obtain a car rental concession at the Honolulu Airport and received confidential information from Pacific Auto. Therefore, the Fujiyama firm must be disqualified.
Plaintiff's Motion to Disqualify the Phillips Nizer Firm
Plaintiff's motion to disqualify the Phillips Nizer firm presents a more difficult issue. Plaintiff contends that disqualification is necessary because attorneys from the Fujiyama firm, in dealing with Phillips Nizer as co-counsel, may have consciously or unconsciously disclosed certain confidential information obtained from Pacific Auto. Plaintiff in effect is asking the Court to presume that the confidential information obtained by Fujiyama was conveyed to Phillips Nizer. Furthermore, plaintiff argues that disqualification is necessary because Phillips Nizer's association as co-counsel with a firm that must be disqualified created an appearance of professional impropriety, in contravention of Canon 9 of the ABA Code of Professional Responsibility.
The parties have cited several cases dealing with the issue of disqualification of co-counsel. The cases state that disqualification of one firm does not automatically compel disqualification of the firm's co-counsel. See Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 235 (2 Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539,
In this case, the disqualified firm's interaction with the former client was extremely limited. Although the contact was not so insignificant that the Fujiyama firm should be permitted to represent Pacific Auto's adversary on a related matter, the limited nature of the relationship between Fujiyama and Pacific Auto does affect this Court's ruling on the motion to disqualify Phillips Nizer. The evidence presented to this Court establishes that Robin and Mehtarian met with Fujiyama for only 1 to 1½ hours. It appears that Fujiyama never did any further work on behalf of Pacific Auto, particularly since Fujiyama declared in his affidavit that he did not even review the materials in the file received from Pacific Auto. Fujiyama never reported to Mehtarian or Robin that he made any progress in obtaining an on-airport concession, and Pacific Auto was never billed for his services.
Furthermore, there is no evidence whatsoever that any member of the Fujiyama firm conveyed any confidential information concerning Pacific Auto to Phillips Nizer. Robert Salman, the Phillips Nizer attorney who has assumed primary responsibility for the Hawaii action, states in his affidavit that Fujiyama told him in July 1978 that Fujiyama had once been visited by Mehtarian on a matter unrelated to the Hawaii action, but that nothing had come of the meeting in the way of legal representation. Salman's affidavit also states that after Pacific Auto's attorneys brought the disqualification issue to Salman's attention, he contacted the Fujiyama firm and was told that Fujiyama did not remember Mehtarian ever mentioning Budget or the Honolulu Airport, although he did recall Pacific Auto's interest in obtaining a concession at the Hilo Airport.
Salman declares that to the best of his knowledge no confidential information concerning Pacific Auto has ever been revealed to members of the Phillips Nizer firm. Clearly, it would be very difficult for Phillips Nizer to produce affirmative proof that they had not received such information. The record certainly does not suggest that Phillips Nizer associated the Fujiyama firm as co-counsel because of the firm's prior relationship with Pacific Auto. Rather, Salman's affidavit indicates that Phillips Nizer had no reason to believe that the Fujiyama firm's representation of Budget would create a conflict of interest.
If this Court were to impute the knowledge of Fujiyama to co-counsel, the Court would be very close to adopting a rule of automatic disqualification of co-counsel. Such a rule would not accord sufficient weight to factors counseling against disqualification. Although courts must preserve the high standards of the legal profession, courts should also consider the client's right to choose his counsel and the harm to the client caused by an order of disqualification. The Court of Appeals for the Second Circuit recently stressed this consideration:
Furthermore, it seems that motions for disqualification are often used for strategic purposes. See Allegaert v. Perot, 565 F.2d 246, 251 (2 Cir. 1977). These considerations weigh against adoption of a rigid rule governing disqualification of co-counsel. The Court of Appeals for the Third Circuit reached a similar conclusion in Akerly v. Red Barn System, Inc., supra, 551 F.2d at 543:
In Fund of Funds, Ltd. v. Arthur Andersen & Co., supra, 567 F.2d 225, the only case cited by plaintiff in which co-counsel was disqualified, the court relied heavily upon the unusual factual circumstances of the case. The disqualification issue arose in Fund of Funds because Morgan, Lewis and Bockius ("Morgan Lewis"), a firm that had served as Arthur Andersen's regional counsel for fifteen years, accepted a retainer from Fund of Funds, knowing that it might lead to litigation against Andersen, in addition to other defendants. Although aware of the ethical problems this situation presented, Morgan Lewis continued to represent Fund of Funds, but asked Robert Meister of Milgrim, Thomajan & Jacobs to assist in the matter. Meister's law firm had maintained a close working relationship with Morgan Lewis for some time. Eventually, Fund of Funds brought a separate action against Andersen, with Meister's firm serving as counsel. Meister reviewed documents concerning Andersen that were supplied by Morgan Lewis, reviewed and revised the complaint with a Morgan Lewis attorney, and in various other respects worked in conjunction with Morgan Lewis. The Court of Appeals for the Second Circuit found that Meister was "the extension of Morgan Lewis's continuing involvement in the underlying action." 567 F.2d at 234. Significantly, the court emphasized that "Meister accepted the retainer from Orr to sue Andersen knowing of the Morgan firm's ethical dilemma. Indeed, his retention as counsel was premised on and resulted from the Morgan firm's incapacity to pursue the claim itself." Ibid. (footnote omitted). The court acknowledged the "generally stated rule that a `co-counsel' relationship will not alone warrant disqualification", but concluded that "the extraordinary, sui generis facts" of the case compelled disqualification of Meister's law firm. 567 F.2d at 235.
The facts of this case differ significantly from those presented in Fund of Funds. The Fujiyama firm's relationship with Pacific Auto was far more limited than Morgan Lewis's relationship with Arthur Andersen. The entire interaction between the Fujiyama firm and Pacific Auto consisted of two brief meetings, as compared to Morgan Lewis's representation of Andersen for fifteen years. Furthermore, the connection between the Fujiyama firm and Phillips Nizer is considerably more attenuated than the relationship that existed between Morgan Lewis and Meister's firm. Phillips Nizer had never worked with the Fujiyama firm prior to this case, nor did Phillips Nizer receive any documents concerning Pacific Auto from the Fujiyama firm. A final distinguishing factor is that when Phillips Nizer associated the Fujiyama firm as co-counsel, Phillips Nizer apparently had no knowledge of the conflict of interest created by the Fujiyama firm representing Budget.
In Fund of Funds, the court based its decision in part upon two earlier Second Circuit cases, NCK Organization Ltd. v. Bregman, 542 F.2d 128 (2 Cir. 1976), and Hull v. Celanese Corp., 513 F.2d 568 (2 Cir. 1975). Although plaintiff has not relied upon these cases, the Court notes that some of the language in the decisions lends support
In Hull the plaintiff-attorney possessed confidential information concerning the opposing party's strategy in that particular case. Furthermore, unlike the case at bar, where once the Fujiyama firm is disqualified there would be no further consultation between the Fujiyama firm and Phillips Nizer, in Hull, as the district court noted, there would have been an ongoing risk of improper disclosure. Confined to the factual circumstances presented in that case, Hull does not support disqualification of Phillips Nizer. Yet the court's statement that a breach of confidence could be presumed is troublesome.
This presumption was later used in NCK Organization Ltd. v. Bregman, supra, 542 F.2d 128, as a basis for affirming the district court's disqualification of co-counsel. In a suit brought by a corporation against a former corporate officer, the defendant, Mr. Bregman, had retained Mr. Randall, an attorney who had formerly served as house counsel for the plaintiff corporation and had been actively involved in the transactions underlying the litigation. Randall was disqualified not only because of the conflict of interest created by representing Bregman but also because he might well have been called to testify at trial. 542 F.2d at 131. The Weil firm, which had served as co-counsel, was also disqualified. That firm had accepted employment knowing that Randall had served as house counsel to the corporation, yet accepting Randall's assurances that no impropriety was involved, since, according to Randall, any confidential information Randall possessed was information to which Bregman as a corporate officer was also privy. 542 F.2d at 131. The court of appeals noted that even if this were true, Randall would not be entitled to disclose those confidences. 542 F.2d at 133.
The court of appeals relied heavily on the Hull decision in affirming the district court's order disqualifying the Weil firm. The court presumed that Randall had received confidential information from the corporation and concluded that the possibility that such information might be conveyed to the Weil firm was an adequate ground for disqualifying that firm. Although the court recognized that Hull differed from the case before it, since "in Hull there was a potential for continuing disclosure," the court concluded that "where some evidence exists of the possibility that disclosures were made in the past of which the Weil firm cannot dispossess itself, the same policies which required disqualification in Hull require it here." 542 F.2d at 134 (footnote omitted).
Judge Mansfield, concurring in the result, emphasized the importance of reading the majority opinion narrowly, in light of the
This Court is unwilling to disqualify the Phillips Nizer firm solely on the basis of a presumption that the Fujiyama firm breached their obligation not to disclose any confidential information obtained from Pacific Auto. Moreover, there appears to be no California or Ninth Circuit authority establishing such a presumption. Neither the California Rules of Professional Conduct nor the ABA Code specifically address the issue of disqualification of co-counsel, and there are no California or Ninth Circuit cases directly on point. Yet the Court finds some support for its reluctance to presume disclosure of confidential information between co-counsel in a California case dealing with attorneys of co-defendants, In the Matter of Charles Willie L., 63 Cal.App.3d 760, 132 Cal.Rptr. 840 (1976). In ruling on a disqualification motion, the court considered as a preliminary matter whether an attorney who had represented a defendant in a criminal case might have thereby obtained confidential information concerning a co-defendant. The court refused to assume that the attorney had received confidences from the co-defendant, since they had not been in an attorney-client relationship. As to the possibility that confidential information might have been disclosed when the attorneys for the two defendants consulted during the course of the trial, the court looked to the record to determine whether there was any evidence of such disclosure. As the record gave no indication that confidential information had been conveyed, but rather suggested that the attorneys had merely conferred concerning trial tactics and strategy, the court found no basis for assuming that the duty to preserve a client's confidences had been breached.
On the basis of the evidence pertaining to the motion to disqualify the Phillips Nizer firm, this Court concludes that Phillips Nizer could only be disqualified if the knowledge of the members of the Fujiyama firm could be presumed to have been transmitted to the members of the Phillips Nizer firm. Although the knowledge of one attorney in a firm is generally imputed to other members of the firm, so that the disqualification of one attorney results in disqualification of the entire firm,
Yet, absent controlling authority on the issue, this Court declines to hold that such a presumption with respect to co-counsel is appropriate. Although creating such a presumption would make decisions regarding disqualification of co-counsel far simpler, it should also be borne in mind that disqualification entails considerable expense and perhaps substantial prejudice to the client whose attorney is disqualified. Furthermore, imputation of the knowledge of one member of a law firm to other members of the firm does not presume any breach of ethical obligations, for under the ABA Code, Ethical Consideration 4-2, "[u]nless the client otherwise directs, a lawyer may disclose the affairs of his client to partners or associates of his firm" without violating the duty of preserving his client's confidences. However, to presume that an attorney would reveal confidential information regarding one client to co-counsel on a matter relating to another client would be to presume a breach of the ethical obligation of confidentiality. In a case somewhat similar to the case at bar, the Court of Appeals for the Fifth Circuit reversed an order of disqualification of co-counsel that was based upon the trial court's imputing the knowledge of one member of a firm to another member of the firm and then further imputing that knowledge to co-counsel. The court of appeals rejected this double imputation, noting that it "could lead to extreme results in no way required to maintain public confidence in the bar," and would result "in wasted time and unnecessary expense." American Can Co. v. Citrus Feed Co., 436 F.2d 1125, 1129 (5 Cir. 1971). The court distinguished the relationship among law partners from the relationship between co-counsel:
Plaintiff argues that even if this Court will neither presume that Fujiyama disclosed confidences to Phillips Nizer nor find that the record suggests that such disclosure took place, the Court nevertheless should disqualify the Phillips Nizer firm on the ground that their association with the Fujiyama firm created "the appearance, if not the actuality, of impropriety." Plaintiff relies on Canon 9 of the ABA Code, "A lawyer should avoid even the appearance of professional impropriety." The Ethical Considerations under Canon 9 reveal that this canon is based in large part upon the need to maintain public confidence in the legal system and the legal profession. Although the California Rules of Professional Conduct do not explicitly incorporate the standard of Canon 9, California cases dealing with disqualification of attorneys have noted the importance of avoiding the appearance of impropriety. See, e. g., People v. Municipal Court, 69 Cal.App.3d 714, 720, 138 Cal.Rptr. 235, 238 (1977).
Plaintiffs rely upon the Court of Appeals for the Seventh Circuit's statement that "[r]ead together, [Canons 4 and 9] indicate that an attorney may be required to withdraw from a case where there exists even an appearance of a conflict of interest." Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 709 (7 Cir. 1976). This statement supports the view that this Court would not have exceeded the bounds of its permissible discretion if it were to disqualify the Phillips Nizer firm, yet it does not compel disqualification here.
Having concluded that there is no evidence of actual impropriety on the part of the Phillips Nizer firm, this Court will not disqualify the firm solely on the ground that their role as co-counsel to a disqualified firm created an appearance of impropriety, particularly in light of the general rule that co-counsel are not to be disqualified automatically. In this Court's opinion, disqualification of the Phillips Nizer firm under the circumstances presented in this case would reflect an overabundance of caution.
Costs and Attorneys' Fees
Pacific Auto requests an award of costs and attorneys' fees incurred in moving for disqualification of the Fujiyama firm and the Phillips Nizer firm. Phillips Nizer, on behalf of Budget, requests an award of costs and attorneys' fees incurred in opposing the motion to disqualify the Phillips Nizer firm. Neither party has provided any authority supporting the request for attorneys' fees or supporting an award of costs at this stage of the litigation. Accordingly, the requests for costs and attorneys' fees will be denied. This does not, of course, preclude including these costs in the costs awarded to the party who ultimately prevails in this litigation. See Federal Rules of Civil Procedure 54(d).
Motion for Protective Order and to Quash Subpoena
In connection with plaintiff's motion for disqualification, the Fujiyama firm sought to depose plaintiff's attorneys and served a subpoena duces tecum upon the attorneys calling for the production of documents related to the disqualification motion, particularly certain affidavits drafted by plaintiff's attorneys. The deposition and document production were noticed for February 10, 1979. On February 12, 1979, plaintiff filed a motion seeking a protective order and an order quashing the subpoena duces tecum and the notice of deposition, arguing in a conclusory fashion that defendant had employed the subpoena and notice for purposes of delay and in an effort to circumvent discovery rules. Plaintiff sought an award of costs and attorneys' fees incurred in bringing the motion. Defendant opposed the motion, contending that the subpoena and notice were proper, and asked that the hearing on the motion for disqualification be continued in order to enable defendant to take the depositions of plaintiff's attorneys.
The hearing on the motion for disqualification was held as previously scheduled on February 15, 1979. At that hearing, plaintiff's attorneys did not seek a ruling on their motion for a protective order and to quash the subpoena. It seems that at that date the motion had already become moot. Clearly it is moot at this point, for defendant's discovery efforts related solely to the motion for disqualification. Plaintiff's motion is therefore denied as moot. Plaintiff's request for costs and attorneys' fees incurred in bringing the motion is also denied.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to disqualify the law firm of Fujiyama, Duffy, Fujiyama & Koshiba from representing Budget Rent A Car Systems, Inc., in Pacific Auto Rental Corp. v. The Hertz Corp., et al., No. C-78-2698-CBR, is granted, and plaintiff's motion to disqualify the law firm of Phillips, Nizer, Benjamin, Krim & Ballon from representing Budget Rent A Car Systems, Inc. in that action is denied.
IT IS HEREBY FURTHER ORDERED that plaintiff's and defendant's requests for awards of costs and attorneys' fees incurred in connection with the motions for disqualification are denied.
IT IS HEREBY FURTHER ORDERED that plaintiff's motion for a protective order and to quash a subpoena is denied as moot, and that plaintiff shall not be awarded costs and attorneys' fees incurred in bringing that motion.
In fact, former Canon 6, a predecessor of Canon 4, explicitly stated:
See Emle Industries, Inc. v. Patentex, Inc., supra, 478 F.2d at 570. The revisions of the canons made no change in this settled principle of legal ethics. Id. at 570 n.6.
The Court of Appeals for the Fifth Circuit affirmed without an opinion. George v. LeBlanc, 565 F.2d 1213 (5 Cir. 1977).