IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM J. WALSH : CIVIL ACTION 

:

v. :

:

CONSOLIDATED DESIGN & : No. 05-2001

ENGINEERING, INC. :

MEMORANDUM AND ORDER

Ditter, J. January 14, 2008

After he was ousted by his former business partners, plaintiff sued them, their company,

and their lawyers. He then settled with his former partners and their company and assigned to

them his claim against their original lawyers. In the meantime, the former partners also sued

their original lawyers after obtaining new counsel, the lawyers who still represent plaintiff. 

Before me is a motion to disqualify plaintiff’s lawyers from representing his former partners in

their various claims against their original lawyers. The motion is based on a conflict of interest

and I will grant it.

REPRESENTATION

Because this is an opinion on the disqualification of counsel, and because the

representation of the parties has taken a confusing path, I will begin with the names and

identification of the parties’ attorneys. 

At the outset of this case, the plaintiff, William Walsh, was represented by Jack

Meyerson, Esq., and Debora O’Neill, Esq., of Meyerson & O’Neill who, despite recent attempts

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 1 of 18
Meyerson entered his appearance on November 21, 2006, and O’Neill entered her appearance on January 1

26, 2007.

Jo Bennett withdrew her representation on October 18, 2005, Donald Wieand withdrew on November 28, 2

2006, and Michael Carr withdrew his representation in October of 2005. 

2

to withdraw their representation, continue to be counsel of record for Walsh. 

Walsh’s former partners, Rick Kolb and Steven Valeriano, are represented by Joseph

Haines of Austin, Boland, Connor & Giorgi, who entered his appearance on May 13, 2005, and

continues to be copied on courtesy copies of all filings and letters to the court. Kolb and

Valeriano are now also represented by Meyerson and O’Neill, who have signed all motions and 1

briefs at issue in this opinion.

The company from which Walsh was ousted, Consolidated Design & Engineering, Inc.,

was represented by Donald Wieand, Esq., and Jo Bennett, Esq., of Stevens & Lee, and Michael

Carr, Esq., who have since withdrawn their representation and been replaced by Meyerson &

O’Neill.

2

The company’s initial lawyers, Peter Schuchman, Jr., Esq., Lisa Thompson, Esq., and

their firm Kozloff Stoudt, the defendants in this lawsuit, have been and continue to be

represented by Jeffrey Albert, Esq., Peter Hoffman, Esq., and Maureen Fitzgerald, Esq., of

McKissock & Hoffman.

For the sake of brevity I will refer to Walsh as the plaintiff; Kolb, Valeriano, and

Consolidated Engineering as the Consolidated Defendants; and Thompson, Schuchman, and

Kozloff Stoudt, as the Attorney Defendants. 

PROCEDURAL AND FACTUAL HISTORY

This suit started when Walsh sued his former partners, Kolb and Valeriano, their

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 2 of 18
 The motion to dismiss had been filed by Stevens & Lee when they represented Consolidated Defendants.

3

3

company, and their lawyers following their forcing him out of the partnership. Walsh and

Consolidated Defendants stipulated to resolve all claims between themselves by agreeing to

binding arbitration before Magistrate Judge David R. Strawbridge. The stipulation specifically

excluded all of Walsh’s claims against Attorney Defendants. Stipulation, ¶ 9. The binding

arbitration resulted in an award of $642,490 with $345,060 apportioned to damages and

$297,430 attributed to the value of Walsh’s partnership shares. 

Prior to the arbitration, the parties signed a separate agreement setting forth the payment

terms of any arbitration award and the assignment by Walsh of all of his remaining claims – 

those against Attorney Defendants – to Consolidated Defendants. Settlement Agreement, ¶ 10. 

However, Walsh retained the option to pursue any assigned or derivative claims if Consolidated

Defendants dismissed or did not pursue those claims. Id. at ¶ 12. Walsh also maintained a

financial interest in those claims as the settlement agreement provided that any proceeds from the

assigned claims would first be applied to any debt owed to Walsh and that any excess would be

divided among Walsh, Kolb, and Valeriano. Id. at ¶ 13. 

Following the arbitration and settlement agreement, Consolidated Defendants and

Attorney Defendants attempted to resolve the remaining claims but were unsuccessful. Acting

through their new attorneys, Meyerson and O’Neill, Consolidated Defendants then withdrew

their pending motion to dismiss Walsh’s complaint which had started this litigation, filed an 3

answer to the complaint, and asserted crossclaims against Attorney Defendants who had

originally represented them in connection with Walsh’s ouster. To put it succinctly, Meyerson

and O’Neill filed a complaint, withdrew a motion to dismiss their complaint, and then answered

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 3 of 18
 See Mem. and Order of Sept. 28, 2007. 4

 Although neither party raised the issue of standing and the disqualification motion was filed at the 5

instruction of the court, which is clearly permitted, I note that the Third Circuit has stated that “the obligation to

ensure that professional ethics are followed has led courts to rule that counsel has standing to raise and challenge

unethical procedures on the part of opposing lawyers.” In Re: Congoleum Corp., 426 F.3d 675, 686 (3d Cir. 2005)

(stating that courts must be cautious to avoid allowing such motions to harass opposing counsel, but allowing

insurer’s counsel to raise conflict in bankruptcy proceeding in order to support the monitoring and reporting of

ethical violations). 

4

their complaint. 

Attorney Defendants then filed a motion to dismiss the crossclaims for failing to meet the

statute of limitations. In their motion, they drew attention to “the apparent conflict of interest 4

with ‘new counsel’ for [Consolidated Defendants].” Mot. to Dismiss Cross-cls., p. 2. In a

conference call to discuss the possible conflict, I instructed counsel for Attorney Defendants to

file a formal motion to disqualify Meyerson and O’Neill and brief the issue. Attorney 5

Defendants complied and filed the motion under consideration.

Next, I granted parts of Attorney Defendants’ motions to dismiss, leaving only fraud and

civil conspiracy claims asserted in Walsh’s original complaint. Thereafter, on behalf of

Consolidated Defendants, Meyerson and O’Neill filed a motion to amend the complaint and

reinstate various claims. They then sought to withdraw their representation of Walsh, first by

filing a “Notice of Withdrawal of Appearance,” which was refused for failure to comply with the

rules of civil procedure, and second, by filing a motion for leave to withdraw, which was denied. 

Meanwhile, the plaintiff, William Walsh, wrote to me directly. He first sent a letter,

copied to Judge Strawbridge, regarding his concerns about underpayment and interest owed on

the notes from his settlement agreement with Consolidated Defendants. See Walsh Letter, Oct.

10, 2007 (Dkt. # 132). Walsh noted that he had disputed and continued to dispute the date

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 4 of 18
See p. 3 referencing content of the settlement agreement. 6

 Kolb and Valeriano also submitted affidavits dated April 27, 2007, which were attached as Exhibits A 7

and B to Meyerson and O’Neill’s response to the motion to disqualify (Dkt. # 115) and are discussed in detail later

in this opinion. 

5

asserted by Consolidated Defendants for the beginning of interest on a note evidencing their debt

to him. In addition, he said that Meyerson held that note and as payments on account were

received, Meyerson would deduct his fee and forward the balance to Walsh. Walsh stated further

that “[Meyerson] surprised me by stating that he would no longer represent my interest in this

case but would continue to collect my award money and his fees. Judge Strawbridge suggested

that in light of the above issues that I file a Motion to Enforce Settlement.” Id.

Walsh’s second letter was sent to me and copied to attorneys Meyerson, Haines, and

Fitzgerald. See Walsh Letter, Nov. 8, 2007 (Dkt. # 133). This letter addressed Meyerson and

O’Neill’s motion to withdraw as counsel. Walsh stated he found the motion “unacceptable as

presented,” quoted paragraphs ten through thirteen of the settlement agreement, noted his 6

absolute disagreement with the statement that he is no longer an active litigant or interested party,

and raised questions regarding how Meyerson and O’Neill could adequately represent his

interests if they also represent Consolidated Defendants.

Meyerson and O’Neill’s latest filings are the November 2007 affidavits of Kolb and

Valeriano (Dkt. # 135 and #138) which assert that they are financially unable to retain any other 7

counsel to pursue their claims against Attorney Defendants should Meyerson and O’Neill be

disqualified. 

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 5 of 18
6

LEGAL STANDARD

“The district court’s power to disqualify an attorney derives from its inherent authority to

supervise the professional conduct of attorneys appearing before it.” United States v. Miller, 624

F.2d 1198, 1201 (3d Cir. 1980). “The party seeking to disqualify opposing counsel bears the

burden of clearly showing that continued representation would be impermissible.” Cohen v.

Oasin, 844 F. Supp. 1065, 1067 (E.D. Pa. 1994). 

Motions to disqualify are generally disfavored, and a party’s choice of counsel is entitled

to substantial deference. Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200,

1203 (E.D. Pa. 1992). However, parties “do not have an absolute right to retain particular

counsel.” IBM Corp. v. Levin, 579 F.2d 271, 283 (3d Cir. 1978). Indeed, as I have noted in the

past, “the right of the public to counsel of its choice is, of course, secondary to the paramount

importance of maintaining the highest standards of professional conduct and the scrupulous

administration of justice.” Baglini v. Pullman, Inc., 412 F. Supp. 1060, 1066 (E.D. Pa. 1976). 

 The Pennsylvania Supreme Court has adopted the Rules of Professional Conduct which

serve as the standard for attorneys appearing before this court. “[D]isqualification ordinarily is

the result of a finding that a disciplinary rule prohibits an attorney’s appearance in a case.”

Miller, 624 F.2d at 1201. 

Pennsylvania Rule 1.7 “Conflict of Interest” states:

(a) Except as provided in paragraph (b), a lawyer shall not represent a 

client if the representation involves a concurrent conflict of interest. A 

concurrent conflict of interest exists if: 

(1) the representation of one client will be directly adverse to 

another client; or 

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 6 of 18
7

(2) there is a significant risk that the representation of one or

more clients will be materially limited by the lawyer’s

responsibilities to another client, a former client or a third person

or by a personal interest of the lawyer. 

(b) Notwithstanding the existence of a concurrent conflict of 

interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to 

provide competent and diligent representation to each affected

client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim 

by one client against another client represented by the lawyer in the

same litigation or other proceeding before a tribunal; and 

(4) each affected client gives informed consent.

DISCUSSION

I. Concurrent Conflict

I first consider whether Meyerson and O’Neill’s representation of Consolidated

Defendants involves a concurrent conflict with their representation of Walsh. Consolidated

Defendants argue that there is no directly adverse relationship between Walsh and themselves

because all of the claims between them have been settled and they have a joint interest in

proceeding against Attorney Defendants. In the alternative, they argue that even if there is a

conflict, it was properly waived. Attorney Defendants argue that regardless of the settlement

agreement, the representation creates a direct conflict that cannot be waived, and alternatively,

that because Walsh never waived the conflict, the representation is prohibited. They point to the

recent letters from Walsh to highlight the actual conflict and his lack of waiver. 

At first glance, a direct conflict appears obvious as Meyerson and O’Neill are listed as

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 7 of 18
In fact, following my September 28, 2007 Memorandum and Order, a Lexis representative called to 8

ensure that Lexis had the attorneys of record correctly marked for publication after noting that the same firm

appeared on behalf of both plaintiff and defendants.

8

counsel of record for both the plaintiff and three defendants in the same case. A second, third, 8

and fourth glance adds to the appearance of conflict and highlights the question as to whom

Meyerson and O’Neill owe a duty of loyalty. When Meyerson first entered his appearance on

behalf of Consolidated Defendants, on November 21, 2006, he used a different caption on his

filing and changed from simply identifying Walsh as the plaintiff to stating: “William J. Walsh,

P.E., Individually and derivatively on behalf of Consolidated Design & Engineering, Inc.” Two

months later on January 26, 2007, when Meyerson and O’Neill filed an answer on behalf of

Consolidated Defendants to the complaint they had filed on behalf of Walsh, Meyerson and

O’Neill were noted as “Counsel for Defendants Consolidated Design & Engineering, Inc., Rick J.

Kolb & Steven J. Valeriano.” Three months after that, on April 16, 2007, Meyerson and O’Neill

filed three certificates of merit signed as “Attorneys for Plaintiff.” In other words, the captions

apparently put Meyerson and O’Neill on both sides of the fence. But appearances are sometimes

deceiving. Here they are not: Meyerson and O’Neill represent Walsh, who despite his

assignments still has both an on-going and potentially adverse interest as to his former partners,

who are also represented by Meyerson and O’Neill. 

Although Meyerson and O’Neill tried to withdraw their representation of Walsh on

October 25, 2007, and again on October 29, 2007, as late as May 14, 2007, they specifically

stated they had a continuing attorney-client relationship with Walsh, noting in their brief

responding to the motion to disqualify them, “Kolb and Valeriano were made aware of the fact

that Meyerson & O’Neill would continue to be counsel for Walsh and continue to pursue the

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 8 of 18
 The oral argument transcript erroneously credits Hoffman with this statement.

9

9

unresolved claims against the lawyer defendants.” Resp. to Mot. to Disqualify, p.9 (emphasis

added). 

The nature and extent of Meyerson and O’Neill’s representation of Walsh and Walsh’s

continuing interest in this litigation was further explored at oral argument on the present motion: 

The Court: Does [Walsh] have an interest that’s still in this case?

O’Neill: Well, the interest that he has is a joint interest with the others,

Kolb and Valeriano, because under the – 

The Court: I thought he assigned all of his interests. Doesn’t all mean all?

O’Neill: No, well, perhaps, I guess maybe I don’t understand. I’m getting

caught up on the meaning of the word interest. He doesn’t have an interest

in terms of the claim. He assigned the claim. The interest he has that under

the terms of the settlement agreement is if Kolb and Valeriano recover on

the assigned claim, any amounts that are recovered are used to pay down

the debt that Kolb and Valeriano have to Mr. Walsh under the settlement

agreement. But in terms of the interest of the claim, no, he does not. That

has been assigned. And it is in that role that we represent Messrs. Kolb and

Valeriano.

The Court: Well, you also represent Walsh in that sense too.

[O’Neill]: Well, to the extent that he assigned the claim, yes. 9

The Court: No, to the extent that he has an interest if they recover, but he

has – that money will be paid to him from their recovery.

O’Neill: Yes, well, yes. And in that – 

The Court: And that means you represent Walsh to that extent.

O’Neill: Yes your Honor. And in that – 

The Court: That you represent Kolb and Valeriano to that extent.

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 9 of 18
10

O’Neill: Yes, your Honor. 

Oral Argument Tr., 48-49, July 19, 2007.

I can and do sympathize with Ms. O’Neill’s difficulty in explaining why Walsh had no

continuing interest in this matter as a result of his settlement with Consolidated Defendants right

before she conceded that he did. Even the most gifted logician may encounter a problem in

explaining why heads and tails are really the same. Sympathy aside, however, it is quite clear

that Walsh has a continuing concern about payments from Consolidated Defendants owed to him

under the settlement agreement. It is equally clear that Walsh and Consolidated Defendants have

an ongoing dispute as to those payments and interest on them. Finally, it is clear, despite

Meyerson and O’Neill’s representation to the court that “the pertinent parts” of the settlement

agreement relating to Walsh’s assignment of rights include only paragraphs ten and eleven, that

the agreement reserves Walsh’s right to pursue any claims not pursued by Consolidated

Defendants and establishes his right to the proceeds from those claims. See Settlement

Agreement at ¶¶ 12-13. Just how and when that right might accrue – and whether Consolidated

Defendants might side with Attorney Defendants to contest that right – suggests that the future

might have cloudy days as well as sunny ones.

I also voiced my concern with Meyerson and O’Neill’s ability to represent Consolidated

Defendants when they would be obligated to pay Walsh:

The Court: What are you going to do, suppose that Kolb and Valeriano

recover and then they say, well, we’re not going to pay Walsh after all. 

What are you going to do?

O’Neill: Well – 

The Court: Who are you going to represent?

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 10 of 18
11

O’Neill: – well, your Honor would enforce the settlement agreement

before the Court.

The Court: I didn’t ask you that. I said who are you going to represent? 

Kolb and Valeriano say we got this money, but we’re not going to pay you,

Walsh, the heck with you. Who do you represent?

O’Neill: No, that’s not going to happen, your Honor. I mean, we could

think of a number of different – it’s just not going to happen.

The Court: Exactly, we can think of a lot of different things. But I’m

thinking of this one. Suppose they refuse to pay, who are you going to

represent? Do you want to tell them, well, on second thought, brother, you

don’t have to pay because there’s this little technicality.

O’Neill: Well, your Honor –

The Court: On the other hand, you’ll say to Walsh, yeah Walsh, that

technically doesn’t apply, so they do have to pay.

O’Neill: – well, if and when that happens, your Honor, there would be a

conflict of interest. But there is not a conflict of interest right now. There

is no concurrent – 

The Court: Why can’t I look forward to that possibility?

O’Neill: Well, because it’s just not going to happen, your Honor, because

under the settlement agreement what the parties have to do is clear. 

Oral Argument Tr., 49-50, July 19, 2007.

Ms. O’Neill’s repeated assurances that potential future conflicts “just won’t happen” has

proven to be overly optimistic in light of subsequent events. Walsh has now twice written

directly to me indicating that he is unhappy with his representation by Meyerson and O’Neill in

recovering what he believes he is owed under the terms of the settlement agreement at which he

was represented by Meyerson and O’Neill against Kolb and Valeriano. He has also stated his

objection to Meyerson and O’Neill’s representation of Consolidated Defendants.

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 11 of 18
 At oral argument, I expressed concern over whether Walsh was fully informed of Meyerson and 10

O’Neill’s actions in this case. I asked what Walsh knew about everything and if he was in touch with anybody

regarding the case, and Ms. O’Neill answered that “He’s well aware of it. He’s well aware that the claims have been

prosecuted and the procedure that’s going forward. And he’s well aware of the assignment and the signing of the

settlement agreement. He understands exactly what’s going on here.” Oral Argument Tr., 54, July 19, 2007. 

Walsh’s near immediate response to the motion to withdraw, which unlike the notice of withdrawal was actually

provided to him, and his strong disagreement with the content of the motion, lead me to believe that Ms. O’Neill’s

statement at best evidenced a misunderstanding and at worst was disingenuous. 

This statement raises serious doubt as to how Meyerson and O’Neill could have reasonably believed that 11

they would be able to provide Walsh the “competent and diligent representation” required under Rule 1.7(b)(1). 

This is especially true considering Meyerson and O’Neill’s repeated argument that the issues in this case are

especially complicated, rendering alternative counsel prohibitively expensive. Reply to Mot. For Leave to Withdraw,

p.3. Of course, Meyerson and O’Neill were arguing at the time on behalf of Consolidated Defendants, but it is

obvious that whatever difficulties and expense might face Kolb and Valeriano in obtaining new counsel would also

confront Walsh.

12

Further, Meyerson and O’Neill have attempted to discontinue their representation of

Walsh, first by filing an improper notice of withdrawal, a filing that was not copied to Walsh,

and then, after that was refused, by filing a motion for withdrawal, which was copied to Walsh,

and which contains a number of statements with which Walsh disagrees. Meyerson and 10

O’Neill have also advocated to Walsh that he retain new counsel in order to secure his settlement

payments. In their motion for leave to withdraw as counsel to Walsh, Meyerson and O’Neill

state “Meyerson volunteered and Judge Strawbridge agreed that with respect to the new issue of

entitlement to interest under the settlement, Walsh should retain new counsel to pursue those new

claims.”11

However hypothetical the conflict might have been when I first asked what Meyerson and

O’Neill would do and who they would represent if a dispute arose regarding the settlement

agreement reached by Walsh and Kolb and Valeriano, the conflict is now very real. It is clear

from both Meyerson and O’Neill’s motion to withdraw as counsel for Walsh, and Meyerson’s

support for the contention that Walsh should pursue separate counsel to enforce the settlement

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 12 of 18
13

agreement which the firm reached on Walsh’s behalf, that the answer to “who” Meyerson and

O’Neill would represent is Consolidated Defendants. 

The Rules of Professional Conduct, however, forbid such a choice. Meyerson and

O’Neill agreed to represent Walsh in his claims against Consolidated Defendants and Attorney

Defendants. As part of the settlement agreement they negotiated on his behalf, Consolidated

Defendants are required to pay Walsh over a period of five years, and should Consolidated

Defendants prevail against Attorney Defendants on any of the assigned claims, Walsh is entitled

to the proceeds. As any contracts lawyer can tell you, an agreement does not guarantee a result. 

Even with an agreement to pay, the representation of Consolidated Defendants is directly adverse

to the representation of Walsh.

II. Exceptions to Conflict of Interest

Meyerson and O’Neill have also argued that even if the representation of Walsh is

considered to be a conflict, they have met the requirements of Rule 1.7(b) and any possible

conflict was waived. I find that informed consent was not obtained from Walsh and therefore

that the conflict was not waived.

Rule 1.7(b)(4) requires that “each affected client gives informed consent.” (Emphasis

added). My colleague on this court, the Honorable Lawrence F. Stengel, recently ruled that a law

firm was disqualified from representing both the plaintiff and a third-party defendant in an action

where the plaintiff had not consented to the joint representation. Pressman-Gutman Co., Inc., v.

First Union Nat’l Bank, 2005 U.S. Dist. LEXIS 1022, *2 (E.D. Pa. Jan. 25, 2005) (noting

previous disqualification in the case was appropriate “because there was no indication that the

plaintiff . . . consented to the joint representation of the [ ] third-party defendants”).

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 13 of 18
14

In this case, Meyerson and O’Neill attached the affidavits of Kolb and Valeriano, dated

April 27, 2007, as Exhibits A and B to the motion to disqualify (Dkt. # 115). These April 2007

affidavits presumably are meant to establish that Kolb and Valeriano waived any conflict in

Meyerson’s and O’Neill’s representation. The affidavits state that they retained Meyerson and

O’Neill under advice of separate counsel, Joseph Haines, Esq., with full awareness of the

assignment of claims by Walsh and of the fact that “Meyerson & O’Neill would continue to be

counsel for Mr. Walsh and continue to pursue his unresolved claims.” However, the affidavits

do not note that any potential conflicts were discussed and waived. To the contrary, they state

that “Your Affiant’s attorneys have explained the joint representation of the claims would inure

to the benefit of both [sic] Your Affiant, the Corporation and Mr. Walsh because the effect of any

financial resolution of the claims against the attorney defendants would serve to expedite and

reduce the payments that Consolidated continues to owe Mr. Walsh pursuant to the settlement

agreement.”

Setting aside the issue of whether Kolb and Valeriano properly waived the conflict of

interest, there is no indication whatsoever that Walsh waived the conflict.

At oral argument, O’Neill discussed the issue of waiver:

O’Neill: . . . All of the parties have a community of interest in having – in

prosecuting these claims against the attorney defendant [sic]. And then

even if there is some type of conflict there, that conflict has been waived. 

Your Honor has affidavits that were attached in response to our motions A

and B, of Messrs. Kolb and Valeriano, that they understood the conflict and

waive the conflict. And Mr. Walsh also agreed to that specifically in the

signing of the settlement agreement. So, we – 

The Court: Wait, wait, how did Walsh agree?

O’Neill: Well– 

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 14 of 18
15

The Court: How did Walsh waive anything?

O’Neill: He signed the settlement agreement, your Honor, where he

assigned the claims over and that the same attorney would be prosecuting

all those claims.

The Court: How does that amount to a waiver of the conflict of interest?

O’Neill: Well, because your Honor, he knew at the time of the settlement

agreement, that that claim was being assigned to Messrs. Kolb and

Valeriano.

The Court: But how do I know that anybody told him, Mr. Walsh, you

might have a conflict of interest matter here?

O’Neill: Well, your Honor, I think the settlement agreement puts that issue

at rest. I mean, if your Honor needs to have another affidavit because you

think that it’s not, that’s something that can be supplied. I believe that that

really is put to rest by the signing of the settlement agreement.

The Court: Well, I’m certainly not going to give you legal advice.

Oral Argument Tr., 52-53 , July 19, 2007. (Emphasis added.)

The record before me does not support a finding that Walsh was adequately informed of

the potential conflict in representation or that he waived such conflict. First, the settlement

agreement between Walsh and Consolidated Defendants did not, as Ms. O’Neill argues,

specifically state that Meyerson and O’Neill would represent Consolidated Defendants in

litigating any future claims. Instead, the settlement agreement’s only reference to counsel states:

“CE [Consolidated Defendants] will retain counsel of its choice to prosecute the Assigned

Claims as well as any claims that CE, Kolb, and Valeriano can assert against the lawyer

defendants Peter Schuchman, Lisa Thompson and/or the firm of Kozloff Stoudt.” Settlement

Agreement, at ¶ 11. (Emphasis added.)

At best, “counsel of its choice” simply allowed for Meyerson & O’Neill to be a possible

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 15 of 18
Comment 18 of Rule 1.7 states: “Informed consent requires that each affected client be aware of the 12

relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse

effects on the interests of that client.”

16

law firm available for hire by Consolidated Defendants. The agreement most certainly did not

ensure that Walsh knew that Consolidated Defendants would hire Meyerson & O’Neill to

represent them; it does not inform Walsh, or Kolb and Valeriano, of the potential conflicts such

representation could incur; and it does not provide a waiver by Walsh, or Kolb and Valeriano, for

that matter, of those conflicts. 

Second, despite the colloquy at oral argument noting the conspicuous absence of any

affidavit by Walsh on the issue of waiver, the only affidavits filed by Meyerson and O’Neill since

the oral argument are those of Kolb and Valeriano attesting to the prejudice they will suffer if the

disqualification motion is granted. Instead of indicating informed consent and waiver, Walsh has

raised a number of conflict issues in his correspondence to the court in which he objected to

Meyerson and O’Neill’s motion to withdraw as counsel. Walsh’s concerns are exactly the types

of conflicts which an attorney would need to discuss with his client in obtaining a knowing

waiver: He insists that he is still an interested party because he is due fees and expenses from 12

the settlement agreement, he questions how interest is being computed, and he questions how

Meyerson and O’Neill will fairly represent his interests in collecting the proper amount owed to

him by Consolidated Defendants when they represent them as well.

Walsh’s continuing interest and clear lack of consent in this case is fatal to Meyerson and

O’Neill’s argument that their representation of Consolidated Defendants is permissible.

CONCLUSION

Meyerson and O’Neill agreed to represent Walsh and filed a complaint on his behalf

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 16 of 18
17

against Consolidated Defendants and Attorney Defendants. The binding arbitration with

Consolidated Defendants resulted in an award to Walsh and the assignment of his remaining

claims against Attorney Defendants to Consolidated Defendants. Despite the subsequent

settlement agreement, the interests of Walsh and Consolidated Defendants remain directly

adverse to each other, even if the same towards the Attorney Defendants. Walsh did not give

informed consent to Meyerson and O’Neill’s representation of Consolidated Defendants, and

therefore his lawyers must be disqualified from representing his adversary.

An appropriate order follows.

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 17 of 18
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM J. WALSH : CIVIL ACTION 

:

v. :

:

CONSOLIDATED DESIGN & : No. 05-2001

ENGINEERING, INC. :

ORDER

And now, this 14th day of January, 2008, IT IS HEREBY ORDERED that:

1. Defendants’ motion to disqualify counsel (Dkt. # 113) is GRANTED and Meyerson &

O’Neill are disqualified from representing Consolidated Design & Engineering, Inc., Kolb, and

Valeriano. 

2. Consolidated Design & Engineering, Kolb, and Valeriano shall have sixty days to

retain new counsel. 

BY THE COURT:

/s/ J. William Ditter, Jr. 

J. WILLIAM DITTER, JR., S.J.

Case 2:05-cv-02001-WD Document 140 Filed 01/14/08 Page 18 of 18