Interesting Ruling in Dougherty v. Philadelphia Newspapers

/ 17.Mar, 2014

One of the more intently watched cases in Philadelphia recently has been the ongoing battle between union leader John J. Dougherty and Philadelphia Newspapers, LLC, now Interstate General Media, the owners and publishers of the Philadelphia Inquirer.  A couple of the rulings in that battle of are particular interest in the areas of professional liability and ethics.

In February, the Pennsylvania Superior Court, in a published opinion, overturned the decision of Judge Jacqueline Allen, and disqualified Pepper Hamilton from representing Philadelphia Newspapers.  Dougherty sought to disqualify Pepper Hamilton as Pepper Hamilton represented Dougherty during a federal investigation related to a grand jury subpoena.  The Superior Court determined the motion to disqualify Pepper Hamilton was an appealable collateral order.  The Superior Court, found Dougherty had a “colorable claim of the potential disclosure of attorney work product and breach of attorney-client privilege, which could lead to irreparable harm.”  In disqualifying Pepper Hamilton, the Superior Court found the defamation case against Philadelphia Newspapers was “substantially related” to the prior representation of Dougherty.

In a concurring opinion, Judge Donohue, noted Pepper Hamilton did not deny its attorneys obtained protected attorney-client confidences during the representation of Dougherty, but asserted it created an “ethical screen” to minimize or eliminate any potential issues.  Pepper Hamilton also argued Dougherty waived the right to challenge the representation by waiting too long before moving to disqualify.   Judge Donohue rejected any suggestion an “ethical screen” can resolve a Rule of Professional Conduct 1.9 conflict, unless it is used in relation to Rule 1.10, regarding new lawyers to a firm bringing conflicts with them.

Last week, in another important order in Dougherty v. fbpdplt, an unrelated case also relating to comments made about Dougherty in the Philadelphia press, Judge Allen ordered to reveal the name of an anonymous commentator (an alleged troll) on its website.  The potential of this ruling to expose those who make anonymous comments on the web has received a significant amount of press.

Josh J.T. Byrne, Esquire