ALLENTOWN – A federal judge has thrown out an affidavit containing a Palmer Township official’s remark describing a developer of Syrian origin as a “terrorist” in civil rights litigation brought by the developer that contended the Township denied him the opportunity to build properties due to his national origin.
On Aug. 21, U.S. District Court for the Eastern District of Pennsylvania Judge Jeffrey L. Schmehl partially granted a motion for sanctions and denied a motion to disqualify plaintiff counsel, in Exchange 12, LLC’s lawsuit versus Palmer Township and its Board of Supervisors.
“Plaintiff filed this suit on Sept. 26, 2023. On Oct. 11, 2023, defendants filed a motion to strike impertinent and scandalous material pursuant to Federal Rule of Civil Procedure 12(f). In the motion, defendants argued that any allegations in the complaint relating to the Township Solicitor referring to [Abraham] Atiyeh as a ‘terrorist’ during a closed session with the Palmer Township Board of Supervisors was protected by the attorney-client privilege, not subject to waiver, and therefore should be stricken from the complaint. Plaintiffs filed an amended complaint on Oct. 30, 2023. As a result, the Court, on Oct. 31, 2023, denied the motion to strike as moot. On Oct. 31, 2023, defendants filed a second motion to strike impertinent and scandalous matter this time from the amended complaint pursuant to Federal Rule of Civil Procedure 12(f) based on attorney-client privilege. This motion remains pending,” Schmehl said.
“On Dec. 12, 2023, Attorney Lahoud responded to defendants’ written discovery requests by producing copies of text messages between Atiyeh and former Palmer Township Board of Supervisor David Colver during the period from Sept. 21, 2023 through Sept. 27, 2023, almost all of which were exchanged before this action was filed. Colver was in attendance at the closed meeting in October of 2021 when the former Township Solicitor allegedly made the ‘terrorist’ remark. The pertinent text messages reveal that on Sept. 21, 2023, Atiyeh send to Colver a document entitled ‘Affidavit of David Colver.pdf.’ On Sept. 25, 2023, Atiyeh sent Colver a text that stated, ‘Good morning dave [sic] would you please sign affidavit in front of notary.’ On Sept.27 2023, Atiyeh again sent Colver a text which stated, ‘Hi dave [sic] can you help me with exact day that Bruno [Township Solicitor] made that comment check your calendar please.’ Atiyeh forwarded the ‘Affidavit of David Colver.pdf’ to Attorney Lahoud by email on Nov. 27, 2023. A review of the affidavit reveals that it is an undated draft affidavit containing the name of Attorney Lahoud’s law firm and the name J. Alexander Short, Esquire. The affidavit also relates directly to the subject matter of the attorney-client privilege asserted in defendants’ motion to strike filed on Oct. 31, 2023.”
On Jan. 18, despite the pending motion to strike, attorney Lahoud made overtures to defense counsel about scheduling depositions of two former Palmer Township Board of Supervisors and one former and one current Palmer Township official – leading the defense to file a motion for a protective order, seeking to prohibit the plaintiff and its counsel from seeking discovery into the following:
• Any and all private communications between and among Township Supervisors and Township officials in which the Township Solicitor was a party; and
• Any and all legislative activities or current and former Township Supervisors, including any questions relating to any regular or special meeting of the Board of Supervisors, any executive session of the Board of Supervisors, and any vote of the Board of Supervisors.
“On Feb. 20, the Court granted the motion for a protective order as unopposed. On Feb. 21, plaintiff filed a motion for relief under Rule 60(b) of the Federal Rules of Civil Procedure, arguing that a response to the defendants’ motion for a protective order had been actually filed on Feb. 16, 2024, albeit after defense counsel had filed his letter requesting that the motion for a protective order be granted as unopposed. Attorney Lahoud attached to the Rule 60(b) motion a signed affidavit from Colver dated Feb. 17, in which Colver averred that the Township Solicitor had stated at a closed session on Oct.21, 2021, ‘Why are we negotiating with a terrorist.”
“Attorney Lahoud has admitted that he edited and shortened this affidavit (apparently the ‘Affidavit of David Colver.pdf.’ from September 2023), but stated that he was ‘not involved in the private discussions between Mr. Atiyeh and Colver.’ As a result of plaintiff’s response to the motion for a protective order having been actually filed, albeit untimely, the Court, on Feb. 23, granted the plaintiff’s motion for relief under Rule 60(b) and vacated its previous order of Feb. 20, 2024 that had granted the defendants’ motion for a protective order as unopposed. On Feb. 26, 2024, the defendants filed this motion for disqualification.”
The defendants argued that plaintiff counsel had violated Pennsylvania Rules of Professional Conduct 4.2, 3.5(d) and 8.4(a).
Rule 4.2 states, “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”
“By its own terms, Rule 4.2 only applies to lawyers, not clients, and defendants have not submitted any evidence that attorney Lahoud nor other member of his law firm communicated with any of the former or current Board of Supervisors of Palmer Township in general or for the purpose of securing an affidavit from any current or former Board of Supervisor in particular. Therefore, the Court finds that neither Attorney Lahoud nor any lawyer at his law firm violated Rule 4.2,” Schmehl said.
Rule 3.5(d) states, “A lawyer shall not ‘engage in conduct intended to disrupt a tribunal.”
“Defendants have not cited to any cases that have applied Rule 3.5(d). The one case that plaintiff cites to, Huggins v. Coatesville School District and another found by the Court, Marino v. Usher, have invoked Rule 3.5(d) where the unprofessional conduct of attorneys disrupted a deposition. That clearly did not happen here and, therefore, the Court finds that attorney Lahoud did not violate Pennsylvania Rule of Professional Conduct 3.5(d),” Schmehl added.
Rule 8.4(a) states, it is professional misconduct “for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”
“The Court finds that defendants have not provided any evidence that attorney Lahoud nor any member of his firm directed, caused, suggested or encouraged Atiyeh to communicate with Colver and/or [former Supervisor Anne Marie] Panella for the purpose of securing an affidavit or otherwise. Rather, it appears that Atiyeh communicated with Colver and Panella on his own. Therefore, the Court finds that neither attorney Lahoud nor any lawyer at his firm violated Rule 8.4(a),” Schmehl stated.
According to Schmehl, “What distinguishes this case and is most disturbing is that attorney Lahoud and Atiyeh took these actions while the defendants’ motions to strike and for a protective order were still pending before the Court…both motions squarely raised the issue that the Township Solicitor’s remarks allegedly made at the closed session in October of 2021 referring to Atiyeh as a terrorist were protected by the attorney-client privilege.”
“Although the exchange of text messages between Atiyeh and Colver occurred in September of 2023, before either motion had been filed, Atiyeh attempted to contact Panella in December of 2023 while the motion to strike was pending and Attorney Lahoud, by his own admission, edited and shortened the original Colver affidavit while both the motion to strike and the motion for protective order were pending. It is unclear from the record whether it was attorney Lahoud or Atiyeh who ultimately presented the edited version of the Colver affidavit for him to sign on Feb. 17. What is clear, however, is that neither attorney Lahoud nor Atiyeh should have had any contact with Colver or other former or current Township Board of Supervisors while the motions were pending. Also, in regard to attorney Lahoud, he apparently edited and shortened the Colver affidavit while both motions were still pending,” Schmehl said.
“Furthermore, attorney Lahoud was aware by Nov. 27, 2023 that Atiyeh had obtained a draft affidavit that was prepared by a member of attorney Lahoud’s firm. Given attorney Lahoud’s receipt of the ‘Affidavit of David Colver.pdf.’ on Nov. 27, 2023 and his knowledge that the motions to strike and for a protective order were still pending as of Feb. 17, the Court finds that, while attorney Lahoud did not violate the letter of any of the Pennsylvania Rules of Professional Responsibility, it was nevertheless incumbent upon attorney Lahoud to have dissuaded his client from having any further contact with Colver and initial contact with Panella after defendants filed the motion to strike on Oct. 31, 2023. Attorney Lahoud also should have refrained from seeking to schedule depositions of current and former Township Officials to ask them about potential privileged matters while the motion to strike was pending and refrained from editing and shortening the ‘Affidavit of David Colver.pdf.’, the edited version of which Colver signed on Feb. 17, after the motion for a protective order had been filed.”
Thus, Schmehl denied the motion to disqualify counsel – but granted the motion for sanctions, insomuch that the Colver affidavit of Feb. 17 was stricken from the record and barred from any further use in these proceedings.
U.S. District Court for the Eastern District of Pennsylvania case 5:23-cv-03470
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com