Document 6wnLEV3drv1LmQg9JwjyX1vmR

12-15-19SG 03:38PM FROM PEARCE *RATHJEN.AND 5MDGER TO B3328150352B7105 P.01 SMOGER & ASSOCIATES 1333 N. California Blvd*, Suite 540 Walnut Creek, CA 94596 (510) 746-8746 FACSIMILE TRANSMITTAL NEMO TO: Edward M. Roth, Esq. Paul Kerrell FROM: Carol A, Nickerson Secretary to Gerson H. Smoger DATE: December 15, 1993 FAX (314) 231-9480 (503) 52S-7105 RE: Montague This transmittal consists of 2 pages, including this cover memo. If there are any problems during transmission, please contact Carol Nickerson at (510) 746-8746. We use a Sharp FO-220 machine. Our Fax Number is (510) 746-8799. Thank You. 12-15-1993 03:39PM FROM PEARCERATHJEN,AND SMOGER TO B332815035287105 P .0 2 MEMORANDUM TO: I ' ; i HROM: DATE: SUBJECT Paul Merrell/Eddie Roth Grson;Smoger December 15, 1993 . 328; Merrell 12/15 memo I generally agree, but I do disagree with one part, as you note. 1 believe that a firm can never represent a client and sue that client at the sane time unlessn there is an affirmative showing by a party needing to use that lawyer that the other- party deliberately tied that law firm up to prevent their representation O f .the agreed party Under these circumstances, Evans & Dixon properly withdrew. :What is really important is that the request for withdrawal made'by Monsanto indicates that they were not a disinterested third party. If they had a sufficient need for Evans & Dixon to .withdraw on the basis of .a conflict, then they are a sufficiently interested party that we have a fear of disclosure of alient confidences to them.: This is what we should argue. In addition, Peter did give Wray client confidences. We need a very short declaration from Peter that should say that: 1) he had discussions and. correspondence with Wray regarding his case wherein he divulged client confidences to him; 2) he has never freely permitted Wray to withdraw from representation to him; 3 ); that he feels he would .be severely prejudiced should any firm Wray is associated with" be allowed to represent Gaffey or Monsanto* Lastly we need the Court to see the publication of Peter's that Gaffey is being sued over. We. have to demonstrate to the court how `inextricably bound Monsanto is to this case- Also say that all of Gaffey 's acts alleged were done- in the course and scope of his employment by Monsanto and on Monsanto's behalf. ,- .f i TOTAL P.02