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October 21, 1946

PORTER, Price Administrator,
HUBER et al.

The opinion of the court was delivered by: LEAVY

The defendants in this case have as counsel attorneys Robert C. Finley, George H. Layman and Harold Troy.

During the course of an argument involving preliminary motions it was stated by attorney George H. Layman that he desired to withdraw from his representation of the defendants for the reason that it had been brought to his attention that while an attorney and employee of the plaintiff he had written a letter to the defendants concerning the matter in controversy. Upon interrogation by the Court it appeared that attorney Robert C. Finley, at the time the letter was written, was likewise an employee of the plaintiff in a legal capacity, and was the superior of Layman. Finley asserted that he had no knowledge of the letter in question and therefore felt that he would not be disqualified from continuing his representation of the defendants. The Court, on its own motion, directed attorneys representing the respective parties to submit a stipulation as to the facts relating to the employment of attorneys Finley and Layman by the O.P.A., plaintiff in this action.

 A written stipulation has been submitted.

 From the stipulation the Court finds that beginning April, 1942 and continuing to May, 1944 Robert C. Finley was 'District Enforcement Attorney, Seattle District Office' for the Office of Price Administration, and that from May, 1944, to June 15, 1945, he was advanced to the position of 'Director, Food Enforcement Division, National Office, Washington, D.C.'

 George H. Layman, from February 10, 1943, to March, 1944, was 'Enforcement Attorney, Seattle District Office' for the Office of Price Administration when on the later date he was made 'Litigation Attorney' in the same office, in which position he continued until May, 1944 at which time he was promoted to the position of 'District Enforcement Attorney, Seattle District Office.'

 From the above information it therefore appears that Finley was no longer with the O.P.A. agency after June 15, 1945, and Layman after April 1, 1945.

 Letters were written in April and July, 1946, by Mr. Finley to his former associates in the plaintiff agency on behalf of the defendants in this action, and in April, 1946, there was a long distance telephone call from Mr. Finley to the Regional Administrator in San Francisco protesting certain garnishment proceedings in this case and requesting voluntary dismissal by the O.P.A. From this it must be assumed that Mr. Finley was actively retained by the defendants, at least in April, 1946.

 The stipulation further disclosed that prior to accepting employment from the defendants, both Mr. Finley and Mr. Layman consulted with attorneys in the Seattle District Office of O.P.A. to ascertain if there was anything in the files indicating that it would be improper or undesirable for them to become counsel for the defendants. Nothing was found in the Seattle files in reference to the pre-litigation aspects of this case. Both attorneys assert that they had no personal knowledge or recollection of any facts in connection with this suit.

 After the issue was raised in this Court, a more complete check of the records and files of the O.P.A. office, both in Seattle and Washington, D.C., disclosed numerous matters dealing directly with steps to be taken in reference to enforcement of price regulations as to these defendants in which both Mr. Finley and Mr. Layman were involved. The stipulation disclosed that on December 24, 1943, a telegram, originating in the Regional Office, was addressed to Mr. Finley instructing him that the prices charged by the defendants were high and that immediate investigation should be begun. An answering telegram, signed by Mr. Layman, who was then acting as Enforcement Attorney, advised that an investigation had been made and that he had been informed that the defendants were using the wrong pricing method.

 On January 5, 1944, a telegram from the Regional Office, addressed to Mr. Layman, directed him to stop the sales of apples by the defendants and to collect treble damages. This was followed by a telegram from a Mr. Patterson of the Regional Office directing that the defendants be advised that their pricing method was wrong, which was responded to by a telegram from Mr. Layman to the Regional Office advising that his office was requesting written assurance from the defendants that they would make no further sales.

 Thereafter, a letter was written under date of January 5, 1944, bearing the typewritten signature of Robert C. Finley as District Enforcement Attorney, and signed by George H. Layman as Enforcement Attorney, informing the defendants that they must refrain from continuing the use of their pricing methods. This letter was not discovered or remembered by either of these attorneys until it was sent from the National Office to the Seattle Office in July, 1946.

 Another letter, under date of January 12, 1944, from George H. Layman to the Regional Office, advised that no court action appeared necessary as long as no further sales were being made.

 On February 3, 1944, a memo to Mr. Layman from Muriel Mawer, designated as 'Sr. Price Attorney,' suggested that the price of peaches sold by Midfield be investigated.

 Following this memo, under date of March 7, 1944, a letter bearing the typewritten signature of Mr. Finley, signed by Richard Rathbun, his subordinate, was sent to the defendants herein requesting information from the defendants concerning the pricing of their products. Again, on March 18, 1944, another ...

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