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BACHMAN v. PERTSCHUK

September 26, 1977

DONALD L. BACHMAN, et al., Plaintiffs,
v.
MICHAEL PERTSCHUK, Defendant



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE

 The issue in this case is whether an attorney for a plaintiff class, who is employed by the defendant federal agency and who is himself a member of the class, has a sufficient conflict of interest such that he should be disqualified from representing the class. This Court finds that these conflicts of interest in this particular case may jeopardize the interests of the class. Therefore, the class action certification will be altered, pursuant to Fed. R. Civ. P. 23(c)(1), to permit this litigation to proceed as a class action only upon removal of this attorney as an attorney for the class.

 Plaintiff brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.§§ 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, alleging that the Federal Trade Commission (FTC) discriminated against him on account of race in failing to promote him. This Court conditionally certified the case as a class action. *fn1" The class consists of all blacks presently employed by, denied employment by, or discharged from the FTC. Mr. Bachman is the only named plaintiff representing the class. Mr. Ramadhan, Ms. Barry, and Mr. Wheatley are the attorneys for the class. Mr. Ramadhan is presently employed by the FTC and is a member of the class. *fn2"

 It is well established that, before a class action is certified, the Court must determine that the "representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). One essential concomitant of adequate representation is that the parties' attorney be qualified, experienced, and generally able to conduct the proposed litigation. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). This Court is firmly committed to the proposition that an attorney with a conflict of interest prevents the adequate representation of the class. See Turoff v. May Co., 531 F.2d 1357 (6th Cir. 1976); Graybeal v. American Savings & Loan Association, 59 F.R.D. 7 (D.D.C. 1973).

 Mr. Ramadhan, in this Court's opinion, should not be allowed to conduct this litigation because of two conflicts of interest. In addition to being the plaintiff's attorney, he is also an employee of the defendant and a member of the plaintiff class.

 Whenever a person represents another against his present employer, the possibility exists that he may violate the duty of loyalty that he owes to each. For example, he might use information he obtained as an employee for the benefit of his client, thereby violating the duty of confidence that he owes to his employer. *fn3"

 In this case, it is uncertain whether any such information has in fact been used by Mr. Ramadhan. However, it is significant to note that the FTC has accused plaintiff's counsel of violating Commission Rule 5.15 *fn4" in papers filed before this Court. It claims that counsel attached to certain exhibits a memorandum

 
. . . not provided to plaintiff in the course of discovery. Since two of plaintiff's counsel [Mr. Ramadhan and another attorney who has since withdrawn from the case] are employed by the Commission, it appears they have taken it upon themselves to make public Commission records.

 Opposition of Defendant to Plaintiff's Motion to Strike Objections and Compel Production of Documents and Answers to Interrogatories (Third Set) at 4 (July 20, 1977). In addition, the FTC has alleged other instances in which it claims plaintiff's counsel have used knowledge in this litigation which was obtained through employment with the FTC.

 
Again, unless plaintiff's counsel has taken unfair advantage of their positions as Commission attorneys to surreptitiously gain access to defendant's communications, it is unclear where they would obtain such information.

 The strong public policy against this conflict of interest is evidenced by 18 U.S.C. § 205, which forbids a federal employee from representing anyone before an agency or court. The section, however, also contains the following exclusion:

 
Nothing herein prevents an officer or employee, if not inconsistent with the faithful performance of his duties, from acting without compensation as agent or attorney for any person who is the subject of disciplinary, loyalty or other personnel ...

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