Date: December, 9 1994
Case No. 93-ERA-25

EDWARD P. HOLUB
Complainant

    v.

H. NASH BABCOCK, BABCOCK & KING, INC.,
FIVE STAR PRODUCTS, INC., U.S. GROUT CORP.,
U.S. WATERPROOFING DIV., U.S. HIGHWAY PRODUCTS, INC.,
THE NOMIX CORP., THE NASH BABCOCK ENGINEERING COMPANY,
CONSTRUCTION PRODUCTS RESEARCH INC., INTERNATIONAL
CONSTRUCTION PRODUCTS RESEARCH, IND., FIVE STAR
CONSTRUCTION PRODUCTS CANADA, INC., THE BABCOCK
CORPORATION,
   Respondents

   An Order to Show Cause Why Attorney Eugene R. Fidell Should Not Be Disqualified issued on July 28, 1994. Thereafter, on August 16, 1994, Complainant stated that he did not intend to present further evidence concerning the motion, but referred to the court's June 10, 1994 Order disclosing the concurrent representation of the Chief Judge and Respondents herein, and Attorney Fidell's responses thereto. On September 6, 1994, Respondents filed an Answer to Order toShow Cause and Motion For Leave to File Declaration of Bruce A. Green. The Complainant filed a response to Respondent's Answer on September 21, 1994; and on September 29, 1994, Respondents filed a Reply to Complainant's Response to Answer to Order to Show Cause.

   As an initial matter, the legal effect of Associate Professor Bruce A. Green's submission is considered. Professor Green submitted an affidavit offering his opinion as an expert on legal ethics, and indeed, his curriculum vita is reflective of both his academic and professional accomplishments in the field. However, the issue raised by that affidavit is whether it constitutes an expert opinion offering a legal conclusion as to the ethical obligations of Attorney Fidell and is therefore inadmissable. See generally U.S. v. Bilzerian, 926 F.2d 1285, 1294-95 (2d Cir. 1991), citing U.S. v. Scop, 846 F.2d 135, 139-40, modified, 856 F.2d 5 (2d Cir. 1988); and Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505,

510-11 (2d Cir. , cert. denied, 434 U. S. 861, 98 S. Ct. 188, 54 L.Ed.2d 134 (1977). Bilzerian stated as follows:

As a general rule an expert's testimony on issues of law is inadmissable. See generally, Note, Expert Legal Testimony, 97 HARV.L.REV. 797 (1984). The Marx and Scop cases distinguish between factual conclusions that may be included in an expert's testimony--though they embrace an ultimate issue to be decided by the jury--and opinions embodying legal conclusions that encroach upon the court's duty to instruct on the law. See Scop, 846 F.2d at 142; Marx, 550 F.2d at 512 . . . . These cases establish that although an expert may opine on an issue of fact within the jury's province, he may not give testimony stating ultimate legal conclusions based on those facts.

Id. at 1294. Thus, while Professor Green is certainly qualified and permitted to give a factual analysis of how lawyers generally conduct themselves in a similar or analogous situation, and is certainly qualified and permitted to offer an opinion with respect to how lawyers should conduct themselves in a similar situation or even that Attorney Fidell did conduct himself as would be required by such a constellation of facts (the "ultimate issue" question permitted by the Federal Rules, FED.R.EVID. 704, see also U.S. v. Scop, id. at 141-42), he is not permitted to offer an opinion as to whether Attorney Fidell's actions or failure to act -- as a matter of law -- should or should not result in disqualification. See generally Marx & Co., Inc., id. at 509.

   To the extent that one might argue that in an administrative proceeding and in the absence of a jury there would be no prejudice in admitting or considering expert testimony which draws conclusions as to the legal significance of facts, see generally FED.R.EVID. 403, such testimony would nonetheless be within the province of the judge and therefore "superfluous." Marx, id. at 510. See VII Wigmore on Evidence, 5 1918, as cited in Marx, id. at 510. The Second Circuit also cited, inter alia, at footnote 15, "Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646 (1942)(abolition of "ultimate issue" rule does not mean witnesses may express opinions as to whether conduct measures up to the requisite legal standard)." Id. The court continued:

As Professor McCormick notes, such testimony "amounts to no more than an expression of the [witness I] general belief as to how the case should be decided." McCormick on Evidence, § 12 at 26-27. The admission of such testimony would give the appearance that the court was shifting to witnesses the responsibility to decide the case. McCormick on Evidence § 12, at 27.

Id. at 510. See also U.S. v. Scop, 846 F.2d 135, 140 (2d Cir. 1988) . Accordingly, to the extent that Professor Green's affidavit purports to instruct as to the law, it is excluded as expert testimony, but has been considered as would a memorandum of law, or brief. In all other respects the affidavit is treated as expert testimony.

   With respect to the disqualification issue, and as set forth in the underlying order to Show Cause, Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973), sets the standard regarding the appearance of impropriety, and that standard is a high one. Further, as was noted in Hull v. Celanese Corporation, 513 F.2d 568, 571 (2d Cir. 1975), "in the disqualification situation, any doubt is to be resolved in favor of disqualification." I have carefully considered Respondents' submission in this regard, including the affidavit of Professor Green, and find no basis therein to repudiate or annul the analysis set forth, the inferences drawn or the conclusions reached, in the underlying Order to Show Cause.¹ To the contrary, Respondents' submission supports a finding that, at the very least, there exists the appearance of impropriety, and further, that there is ground for finding an actual conflict such that the disqualification of Attorney Fidell is warranted.

   There are two lines of analysis here: one relates to Chief Judge Litt's actual authority with respect to this case; the second relates to the disclosure issue. With respect to the first, as Complainant has correctly pointed out, there are certain procedural or ministerial functions which reside in the Chief Judge, as provided in the regulations and set forth at page two of the Order to Show Cause; which, as Respondents have for their part correctly pointed out, have not been exercised by Chief Judge Litt during the time that Attorney Fidell has appeared in this case. Nonetheless, these functions do exist.

   In addition, the disqualification question, as raised by the regulations, presents a situation which is of equal concern. 29 C.F.R. § 18.36(b) provides that an appeal of a disqualification ruling is made to the Chief Judge. That is a fact that cannot be disregarded based on the argument that if no motion for disqualification had been filed then the authority has no operative effect and thereby ceases to be relevant. To the contrary, that authority may or may not be exercised -- indeed, it may even be characterized as potential -- but it never ceases to exist. And unless and until the Chief Judge recuses himself, that authority remains vested in him.

   Further, and in this regard, Respondents now inform this tribunal, through the affidavit of Professor Green, that, "[he has] been advised by Mr. Fidell that: (a) Chief Judge Litt is aware of and has consented to Mr. Fidell's representation of Respondents in the instant case; (b) Chief Judge Litt would recuse himself from exercising authority as Chief Administrative Law Judge in the instant case; and (c) Respondents have given informed consent to Mr. Fidell's representation in light of the above-described circumstances." (Affidavit of Professor Green at 3-4).

   I am constrained to point out in this regard that Chief Judge Litt's purported intent to recuse himself should the case be appealed, comes not from an order issued by him as a result of an appeal, but rather through the instrumentality of Mr. Fidell, who, with respect to a critical issue in this case, seemingly functions as a spokesperson for the Chief Judge. This is not merely an appearance of impropriety, but an actual conflict, because Mr. Fidell is acting as the representative of the Chief Judge -- in effect, as the Chief Judge's attorney -- in that portion of this case over which Chief Judge Litt has not yet

   Finally, and regarding Mr. Fidell's assertion that he did not want his representation of the Chief Judge to be perceived as an indirect effort to derive some implicit advantage and did not for that reason disclose that representation, is not, as the submitted affidavit states, "understandable." To the contrary, the way to forestall a perception of implicit advantage is to disclose; and by disclosing, provide Complainant the option to act or not act, and thereby even the field of play.²

   Respondents' Answer raises the issue that if Mr. Fidell cannot concurrently represent the Chief Judge and Respondents herein, then he would be effectively precluded from appearing in any proceeding before the Office of Administrative Law Judges. That may or may not be so. It is noted, however, that the potential for such an outcome was discussed by the Second Circuit in Emle, which court nonetheless disqualified the attorney in question. See generally Emle Industries Inc. v. Patentex, Inc., 478 F.2d 564-65.

   Finally, Respondents emphasize the need for the participation of Mr. Fidell because of his expertise in whistleblower litigation, and because the substantive issues presented by this case are numerous and complex.³ This court is not unaware of the burden placed on a party separated from its counsel, nor is it unaware of the burden placed on counsel in defending such a separation. Indeed, the burden on this tribunal in considering the issues and reaching a determination has not been insubstantial. Nonetheless, this court remains conscious of its "responsibility to preserve a balance, delicate though it may be, between an individual's right to his own freely chosen counsel and the need to maintain the highest ethical standards of professional responsibility. This balance is essential if the public's trust in the integrity of the Bar is to be preserved. . . . " Emle, id. at 564-65. The court concluded:

We have said that our duty in this case is owed not only to the parties . . . but to the public as well.. These interests require this court to exercise its leadership to insure that nothing, not even the appearance of impropriety, is permitted to tarnish our judicial process. The stature of the profession and the courts, and the esteem in which they are held, are dependent upon the complete absence of even a semblance of improper conduct.

Id. at 575. Accordingly, and based on all of the above, I shall order the disqualification

¹Footnote 33 at page 60 of the Order to Show Cause makes reference to footnote 31. That reference is corrected to read, "See footnote 30, supra.

²It is noted that the affidavit states in this regard that, "it may be that in hindsight, the prudent course would have been for Mr. Fidell, immediately upon undertaking the representation of Respondents, to notify Complainant and this tribunal of his representation of Chief Judge Litt. Mr. Fidell's reason for not providing such notice -- his concern that, in doing so, he might wrongly appear to be attempting to misuse the office of his client, Chief Judge Litt -- was understandable, but overcautious." (Affidavit of Professor Green, at 17) . The affidavit further notes that the affiant is "unaware" of "any provision of the ABA Code of Professional Responsibility, the Connecticut Rules, or any other possibly applicable set of professional standards, that would have obligated Mr. Fidell to provide such notice in this case. Moreover, I am unaware of any prejudice that has resulted from Mr. Fidell's' failure to give notice. Nor am I aware of any authority indicating that the failure to give notice under circumstances in any way similar to this case should have bearing on a decision regarding disqualification, much less provide cause in itself to warrant disqualification. In my judgment, it would be inappropriate to disqualify Mr. Fidell because of his failure to provide such notice." (Id. at 17).

³See Order to Show Cause at 60-61 and discussion therein.