J.G.S. VS. L.M.S. (L-1316-18, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3133-18T1
J.G.S.,
Plaintiff-Respondent,
v.
L.M.S.,
Defendant-Appellant.
_________________________
Argued September 9, 2019 – Decided December 6, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1316-18.
Rebekah Raye Conroy argued the cause for appellant
(Stone Conroy LLC, and Williams Law Group, LLC,
attorneys; Rebekah Raye Conroy and Victoria D.
Miranda, of counsel and on the briefs).
Steven M. Resnick argued the cause for respondent
(Ziegler, Zemsky & Resnick, attorneys; Steven M.
Resnick and Jonathan H. Blonstein, on the brief).
PER CURIAM
This matter arises from plaintiff J.G.S.'s action against defendant L.M.S.,1
his ex-wife, for defamation, intentional infliction of emotional distress, aiding
the commission of a tort, and conspiracy, based on defendant's statements and
conduct in the course of an investigation by the Division of Child Protection and
Permanency (the DCPP). Prior to the order that is the subject of this appeal,
defendant made a successful motion to disqualify plaintiff's law firm, Ziegler,
Zemsky & Resnick, LLC (ZZR), based on the fact that an attorney at ZZR had
previously represented defendant in the DCPP matter. Thereafter, on January
18, 2019, the trial judge granted reconsideration after determining that the
disqualified attorney's conflict need not be imputed to the entire firm. Having
reviewed the record in light of the governing legal principles, we conclude that
ZZR's disqualification is mandated by the Rules of Professional Conduct (RPC)
1.10(c). Because the judge's decision on reconsideration was incorrect as a
matter of law, we now reverse.
In July 2017, the DCPP initiated an investigation after receiving a report
that plaintiff had abused one of the parties' children. On July 17, 2017,
defendant retained Williams Law Group, LLC (WLG) to represent her in
1
We use initials to preserve the confidentiality of the family. R. 1:38-3(d)(12)
and (13).
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connection with the DCPP's investigation. The retainer agreement specified that
the legal services to be provided were to assist in the resolution of the DCPP
investigation. Paragraph 5 of the retainer specified that "Allison C. Williams,
Esq. shall oversee managing your matter[, and] Elizabeth D. Burke, Esq., and
Associates shall be the attorney[s] predominately involved in your matter."2 At
least through the end of July 2017, Elizabeth Burke, an associate attorney at
WLG, was the attorney predominately involved in defendant's matter and was
defendant's main point of contact. Before meeting with defendant, Burke
reviewed defendant's file, which included a confidential six-page journal
detailing defendant's "contemporaneous notes, thoughts, reflections, and
observations of [her] children, [J.G.S.], and the DCPP investigation . . . ." On
July 20, 2017, Burke met with defendant for over an hour, discussing family
history, the DCPP's investigation and interviews of the children, conversations
with the family therapist, and legal strategy. Burke took notes about the
investigation and the parties' children. After the meeting, Burke corresponded
2
A separate retainer agreement dated July 2018 indicated that the legal services
to be rendered pursuant to the retainer was a "Motion to Dismiss – Civil
Complaint." Paragraph 5 of that retainer, specified that "Allison C. Williams,
Esq., shall oversee managing your matter, and Victoria D. Miranda, Esq., and
Associates shall be the attorneys predominately involved in your matter."
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3
with defendant, discussing the DCPP's investigation, plaintiff's actions related
to the children, and legal strategy. Burke also communicated with the DCPP,
the Morris County Prosecutor's Office, and various healthcare providers on
defendant's behalf. Burke's representation of defendant ended when Burke left
WLG to join ZZR, the firm representing plaintiff in the current action. Burke
has been employed at ZZR since leaving WLG.
In July 2018, plaintiff, represented by ZZR, filed the instant complaint,
alleging that defendant made defamatory statements about him in connection
with the DCPP's 2017 investigation. He further alleged that defendant aided and
conspired with others to interfere with his custodial and parenting time rights
and that her actions constituted intentional infliction of emotional distress.
Thereafter, defendant filed a motion to disqualify ZZR from representing
plaintiff in his action against her. In support of the motion, defendant certified
that "Burke was the attorney primarily handling my matter and had given me
advice regarding not only the DCPP matter, but also how to handle same within
the context of our custody and parenting time arrangement – the very same
issues that are the crux of [p]laintiff's [c]omplaint against me." In opposing
disqualification, Steven M. Resnick certified the following:
[W]hen Burke joined my firm over a year ago, there
was no litigation between my firm and the [WLG] as to
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the parties. As such, there was no active "side-
switching" of the associate at that time. The . . . parties
were involved with the DCPP in the time period in issue
during the very early stages of the confidential
investigation. The matrimonial post judgment
litigation did not begin until the end of September 2017,
well after Burke left the [WLG] firm. The instant
matter is a different matter in the civil court.
In addition, Resnick questioned WLG's assertion that Burke was "primarily"
responsible for defendant's file. Resnick argued that the claim she was primarily
responsible "did not even make sense . . . given her skill level that requires
supervision as to any decision making on a file or certainly before any legal
advice would be provided."
Burke also submitted a certification opposing disqualification, in which
she denied involvement in defendant's case, and she averred,
I have absolutely no memory at all of any confidential
information [defendant] may have provided to me if she
did, and I did not retain any information (confidential
or otherwise) that she may have provided. I have barely
any memory of any information related to the case. In
fact, I doubt I could even pick [d]efendant out in a
crowd. I can attest without hesitation that I possess
zero confidential information as to [d]efendant as to
any matter.
Confronted with copies of her timesheets from WLG, however, Burke submitted
a second certification, in which she acknowledged her involvement in
defendant's DCPP matter while an associate at WLG, as described above, though
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continuing to maintain that there was no prejudice to defendant because she
currently has no memory of the details of her past representation of defendant .
On October 22, 2018, the judge granted defendant's disqualification
motion. The judge found that ZZR's representation of plaintiff violated RPC
1.9(a) because "Burke's firm now represents [plaintiff] in a 'substantially related'
matter where [plaintiff's] interests are now 'materially adverse' to those of the
former client, [defendant]." The judge imputed this conflict to ZZR pursuant to
RPC 1.10. He determined the conflict could not be waived under RPC 1.10(c)
because Burke was the attorney predominately involved with the DCPP's
investigation, which is the same matter at issue in plaintiff's action against
defendant. He also noted that ZZR did not provide defendant with written notice
of the conflict. 3
Thereafter, plaintiff filed a motion for reconsideration. In opposition,
defendant explained in greater detail Burke's involvement with the prior matter
and provided additional documentation in support of her assertion that Burke
3
It is undisputed that ZZR did not timely discover the conflict of interest
through effective screening procedures. Because we do not find that failure to
be a dispositive factor in this case, it is unnecessary to address defendant's
argument that the procedural deficiency is an independent basis for ZZR's
disqualification.
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had received confidential information. Significantly, she included two invoices
listing the work that Burke had done, and she attached, under seal, the
confidential six-page journal she had provided for Burke's review prior to their
first meeting. Defendant's attorney also provided, under seal, a copy of the notes
Burke took during her meeting with defendant.4
The judge granted plaintiff's motion and reversed his prior decision. The
judge concluded that although Burke undeniably had a conflict under RPC
1.9(a), he nevertheless decided not to impute the conflict to the entire firm
because ZZR "did not 'knowingly' represent a person in a matter in which
another lawyer at the firm is disqualified." Despite ZZR's failure to notify
defendant of the conflict, as required by RPC 1.10(c)(3), the judge found that,
upon balancing the parties' interests, it would be more inequitable to bar ZZR
from representing plaintiff. To remedy the prejudice to defendant, the judge
instructed ZZR to screen Burke from any activity related to plaintiff's matter and
to refrain from using any evidence that may have been derived from Burke's
prior attorney-client relationship with defendant.
4
Burke's notes and defendant's journal were provided to this court under seal.
There is no need, however, to discuss the content of the documents, which were
not provided to plaintiff, as Burke's own certification and her timesheets suffice
to establish her representation of defendant.
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On appeal, defendant argues that the judge erred in reversing his decision
to disqualify ZZR from representing plaintiff. Defendant avers that permitting
ZZR to represent plaintiff fails to enforce the rules governing conflicts of
interest, prejudices defendant, and undermines public confidence in the integrity
of the bar. Plaintiff counters that Burke could not have been the WLG attorney
primarily handling the file, based on her alleged inexperience and status as an
associate.
We review a grant of a motion for reconsideration for abuse of discretion.
See Guido v. Duane Morris LLP, 202 N.J. 79, 87 (2010) (citation omitted). A
motion for reconsideration "shall state with specificity the basis on which it is
made, including a statement of the matters or controlling decisions which
counsel believes the court has overlooked or as to which it has erred." R. 4:49-
2.
Reconsideration should be utilized only for those cases
which fall into that narrow corridor in which either 1)
the Court has expressed its decision based upon a
palpably incorrect or irrational basis, or 2) it is obvious
that the Court either did not consider, or failed to
appreciate the significance of probative, competent
evidence.
[Cummings v. Bahr, 295 N.J. Super. 374, 384 (App.
Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990)).]
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We review a trial judge's decision on a disqualification motion de novo.
City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010). Therefore, we need
not defer to the trial judge's decision. Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995). We must weigh "'the need to maintain
the highest standards of the [legal] profession' against 'a client's right freely to
choose his counsel.'" Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 205
(1988) (alteration in original) (quoting Gov't of India v. Cook Indus., Inc., 569
F.2d 737, 739 (2d Cir. 1978)).
RPC 1.9(a) prohibits "[a] lawyer who has represented a client in a matter
[from] thereafter represent[ing] another client in the same or a substantially
related matter in which that client's interests are materially adverse to the
interests of the former client unless the former client gives informed consent
confirmed in writing." Matters are substantially related if
(1) the lawyer for whom disqualification is sought
received confidential information from the former
client that can be used against that client in the
subsequent representation of parties adverse to the
former client, or (2) facts relevant to the prior
representation are both relevant and material to the
subsequent representation.
[Trupos, 201 N.J. at 451-52.]
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We note the judge correctly found that the circumstances in this matter
constitute a conflict of interest under RPC 1.9(a). Plaintiff's argument that the
tort case and the DCPP case are "different matters" is unavailing, as plaintiff's
civil complaint is entirely premised on defendant's statements and conduct
during the DCPP's investigation. Defendant's statements to Burke about
plaintiff, the children, and the DCPP and criminal investigations are clearly
relevant and material to plaintiff's present claims that defendant made
defamatory statements about him and used the DCPP investigation to interfere
with his custodial rights. See Trupos, 201 N.J. at 451-52.
In addition, we conclude that Burke, by her own admission, obtained
confidential information from defendant while an associate at WLG. A conflict
arose once she obtained the confidential information, and the fact that she only
handled the matter for a few weeks is not sufficient to cure the conflict. Nor is
the fact that Burke has no present recollection of her past representation
sufficient to cure the undisputed fact that Burke herself could not participate in
plaintiff's representation at ZZR.
We now turn to the judge's conclusion on reconsideration that Burke's
indisputable conflict need not be imputed to the firm. RPC 1.10(a) generally
precludes any other lawyer employed by the disqualified attorney's firm from
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"knowingly represent[ing] a client when any one of them practicing alone would
be prohibited from doing so by . . . RPC 1.9." In concluding that ZZR could
continue its representation, the trial judge relied on the fact that ZZR did not
know Burke had a conflict with respect to plaintiff.
However, irrespective of ZZR's subjective ignorance of Burke's conflict,
another lawyer in the disqualified attorney's firm may represent the client only
if three requirements are met:
(1) [T]he matter does not involve a proceeding in
which the personally disqualified lawyer had primary
responsibility;
(2) the personally disqualified lawyer is timely
screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(3) written notice is promptly given to any affected
former client to enable it to ascertain compliance with
the provisions of this Rule.
[RPC 1.10(c).]
Although we find that none of the three requirements were satisfied in this
case, we conclude that RPC 1.10(c)(1) alone requires ZZR's disqualification.
"'Primary responsibility' denotes actual participation in the management
and direction of the matter at the policy-making level or responsibility at the
operational level as manifested by the continuous day-to-day responsibility for
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litigation or transaction decisions." RPC 1.0(h) (emphasis added). ZZR's
argument that Burke could not have been "primarily responsible" for defendant's
the DCPP matter because she was not the partner assigned to the file is
unavailing, as she clearly had responsibility at an operational level on a day-to-
day basis, even if she was subject to a managing partner's supervision.
We conclude that the trial judge's decision on the initial disqualification
motion represented a correct application of the RPC, and his decision to later
reverse that disqualification based on a balancing of the equities was not
permitted by the rules. Because the judge's decision on reconsideration was
incorrect as a matter of law, we are constrained to reverse.
Reversed.
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