CHURCH OF SCIENTOLOGY OF CALIFORNIA, a Non-Profit Corporation, under the laws
of California, Plaintiff-Appellant,
John McLEAN and Nancy McLean, Defendants-Appellees.
FN* Fed.R.App.P. 34(a); 5 Cir. R. 18.
United States Court of Appeals,
April 18, 1980.
In a slander suit, plaintiff moved to disqualify one of defendant's two
attorneys. The United States District Court for the Middle District of
Florida, Wm. Terrell Hodges, J., denied the motion and plaintiff appealed. The
Court of Appeals, Alvin B. Rubin, Circuit Judge, held that: (1) the attorney's
consulting with the plaintiff about a zoning matter did not bar his
representing the defendant in this case where there was no evidence that any
issue in this case was ever discussed with the attorney or that he had any
confidential information about it, and (2) the appeal was frivolous and the
defendant was entitled to damages caused by the appeal, including a reasonable
attorney's fee and double costs.
 ATTORNEY AND CLIENT
Lawyer need not disqualify himself in matter concerning former client unless
terminated employment had some substantial relationship to pending suit or
unless he had received some privileged information.
 ATTORNEY AND CLIENT
To warrant disqualification of counsel, there must be showing of reasonable
possibility that some specifically identifiable impropriety occurred and
likelihood of public suspicion must be weighed against interest in retaining
counsel of one's choice. ABA Code of Professional Responsibility, Canon 9.
 ATTORNEY AND CLIENT
Defense counsel in slander suit was not required to disqualify himself because
plaintiff had previously consulted with him about a zoning matter where there
was no evidence that any issue in slander case was ever discussed with counsel
or that he had any confidential information about it.
 FEDERAL CIVIL PROCEDURE
Where appeal from district court's refusal to disqualify opposing counsel was
frivolous, appellees were entitled to damages caused by appeal, including
reasonable attorney's fee and double costs. F.R.A.P.Rule 38, 28 U.S.C.A.
*692 Allen L. Jacobi, North Miami, Fla., for plaintiff-appellant.
Baskin & Sears, Robert K. Hayden, Clearwater, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of
Before GEE, RUBIN and POLITZ, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
The Church of Scientology of California filed a slander suit against John and
Nancy McLean, citizens of Canada and ex-Scientologists. The McLeans are
represented by Robert Hayden, a partner in the law firm of Baskin & Sears.
Elihu Berman is associated with that law firm and plans to assist Hayden in
defending the suit. Before Berman joined that firm, the church had consulted
with him about a zoning matter. It has filed a motion to disqualify Berman and
the law firm in this suit on the basis that "topics were discussed (with
Berman) which are substantially related to the cause of action before the
court." The trial judge denied the motion as it related to Hayden and the law
firm, and reserved ruling on the motion as it pertained to Berman. Later, he
also denied the motion as to Berman. This appeal is from that order; it
apparently, therefore, pertains only to the ruling concerning Berman.
Whether an order refusing to disqualify counsel is appealable is an issue now
before this court en banc. Wilson P. Abraham Construction Corp. v. Armco
Steel Corp., No. 79-2007, hearing en banc ordered (5th Cir. Oct. 22, 1979).
However, we assume for the moment that there is jurisdiction because, whether
or not the appeal applies only to Berman, it is groundless and there is no
reason further to delay this case.
(1) The church has not offered a scintilla of evidence that any issue in
this case was ever discussed with Mr. Berman or that he has any confidential
information about it. While lawyers are expected to avoid even the appearance
of impropriety, they are not required to sterilize their affairs to avoid
baseless charges. A lawyer need not disqualify himself in a matter concerning
a former client unless the terminated employment had some substantial
relationship to the pending suit or unless he has received some privileged
information. See Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d
168, 171-72 (5th Cir. 1979). Cf. Woods v. Covington County Bank, 537 F.2d
804, 813 (5th Cir. 1976) (former government attorney is not disqualified from
civilian employment in a matter for which he had substantial responsibility in
government in absence of reasonable possibility of impropriety.) The church's
brief to this court asserts that, during the course of Mr. Berman's
consultation with its representative,
information was given to Mr. Berman so that he could assess the problem with
which the (church) was faced and certain advice given by Mr. Berman in
reference to those problems. After the consultation Mr. Berman billed the
Church of Scientology of California and received compensation therefrom.
During this consultation topics were discussed which substantially related to
the subject matter of the instant litigation and related to the Clearwater City
Commission, including the Ex-Mayor, Gabriel Cazares, who appears on the
Defendant's List of Witnesses as is also the case with one Ronald Schultz, the
County Property Appraiser. The same hostilities which are the essence of the
case sub judice were the very problems which the plaintiff faced in reference
to the zoning problems involving the property which they wished to purchase.
*693 There is no evidence in the record concerning these allegations, nor
even the proffer of evidence by affidavit or deposition. The one affidavit
filed on behalf of the church, by Phillip Park, recites that he is a minister
in the church; that he consulted Mr. Berman for 1.25 hours concerning "the
interpretation of the City of Clearwater Zoning Code as would relate to the
acquirement (sic) of a building for administrative offices by" the church; that
Mr. Park apprised Mr. Berman of "certain difficulties" the church had been
having in the community "as related to the City Commission, certain people
hostile to Plaintiff Church, to include the ex-mayor Gabriel Cazares, the
Property Appraiser Ronald Schultz, City Commissioner Richard Tenney." It
concludes that "such matters were substantially related to and at issue in the
case sub judice," and that some of those named as hostile individuals have been
called as witnesses for the defendant. We are left to discern as best we can
how this relates to the slander suit, but we are unable to perceive the
(2) The rule of disqualification is not mechanically applied in this
Circuit. Brennan's, Inc. v. Brennan's Restaurants, Inc., supra, 590 F.2d at
173-174. To warrant disqualification under Canon 9 of the Code of Professional
Responsibility there must be a showing of a reasonable possibility that some
specifically identifiable impropriety occurred and the likelihood of public
suspicion must be weighed against the interest in retaining counsel of one's
choice. Id. at 172.
An attorney's conduct need not be governed by standards that can by imputed
only to the most cynical members of the public. A lawyer need not "yield to
every imagined charge of conflict of interest, regardless of the merits, so
long as there is a member of the public who (says that he) believes it."
Woods v. Covington County Bank, supra, 537 F.2d at 813.
(3) This is a slander suit. In the complaint, the church lists certain
statements by the McLeans as defamatory: "Scientology seeks to enslave
people," "to build up a sphere of influence," "to become involved politically,"
and similar utterances. Mr. Berman was consulted on a zoning matter. Though
Mr. Park disclosed to Mr. Berman that he was an agent of the church, there is
no evidence that he disclosed any information about the church, its property or
even the location that the consultation was about. As is apparent from the
complaint, the church was much in the news in Clearwater. The alleged
disclosure that several community leaders were not favorably disposed toward
the church was, according to Mr. Berman's affidavit, already community
knowledge upon which he commented to Mr. Park. Even had he previously been
oblivious to the community reaction, knowledge of that reaction is not
privileged client information; nor is it obviously information which could be
used against the church in the slander suit.
It is clear that the subject matter of the zoning consultation is not
substantially related to Berman's instant representation of the McLeans.
Moreover, the church has not made a showing that there is a reasonable
possibility of improper professional conduct arising from Mr. Berman's
participation in this case, or that the likelihood of public "obloquy outweighs
the social interests" served by the continued participation in this case of
counsel of the defendants' choice. See Woods v. Covington City Bank, supra,
537 F.2d at 813 n.12.
(4) In our considered judgment the appeal is not only without merit but
frivolous. The trial court shall assess damages to the appellees caused by the
appeal. The damages are to include a reasonable attorney's fee. Appellees
shall also be awarded double costs. Fed.R.App.P. 38.
The denial of the motion is AFFIRMED.