DAVID BURKHARDT VS. ERICA KASTELL F/K/A ERICA BURKHARDT (FM-18-0231-12, SOMERSET COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2724-17T3
DAVID BURKHARDT,
Plaintiff-Respondent,
v.
ERICA KASTELL, f/k/a ERICA
BURKHARDT,
Defendant-Appellant.
________________________________
Argued May 30, 2018 – Decided June 8, 2018
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset
County, Docket No. FM-18-0231-12.
Andrew M. Shaw argued the cause for appellant
(The DeTommaso Law Group, LLC, attorneys;
Andrew M. Shaw, on the brief).
Joanna R. Adu argued the cause for respondent
(Lyons & Associates, PC, attorneys; William
P. Lemega and Joanna R. Adu, on the brief).
PER CURIAM
We granted leave to appeal an order that disqualified The
DeTommaso Law Group (the firm) from further acting as counsel for
defendant Erica Kastell because an attorney, who mediated an
earlier dispute in this post-judgment matrimonial matter, later
became affiliated with the firm. We reverse because the order
under review was based on considerations – the appearance of
impropriety and plaintiff David Burkhardt's "discomfort" – that
are not expressed in RPC 1.12.
We briefly describe the events giving rise to this dispute.
The parties' 1996 marriage, which produced three children, was
dissolved by a judgment that incorporated the parties' 2011 marital
settlement agreement (MSA). In February 2016, they entered into a
post-judgment consent order that modified the MSA's parenting time
provisions; the firm represented Erica during that proceeding. The
parties, however, disputed certain financial issues generated by
the parenting-time adjustment; these disputes were referred to
James Maloughney, Esq., a solo practitioner, for mediation.
According to David,
[t]he mediation process took over two months,
with countless discussions, emails and
telephone calls between both parties and Mr.
Maloughney, as well as an approximate three
(3) hour mediation session at Mr. Moloughney's
office [in] Somerville . . . . In addition to
these communications, there was considerable
documentation exchanged and provided to Mr.
Moloughney, who was privy to all of my
information and documentation as it pertained
our ongoing disputes. As a disinterested third
party serving as mediator, Mr. Moloughney was
given access to my personal and confidential
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information, business records and personal
files.
What David described as "lengthy back and forth discussions"
resulted in an April 28, 2016 consent order, which recalibrated
David's child-support obligation and modified other financial
matters.
More than eighteen months later, a firm attorney wrote to
David's attorney to suggest mediation of a number of issues,
including child support. To the latter's surprise, his letterhead
revealed that Moloughney was "of counsel" to the firm. This
prompted a demand that the firm cease representing Erica. When the
firm refused, David promptly – and successfully – moved for the
firm's disqualification.
We granted Erica's motion for leave to appeal so we might
consider whether her due process rights were damaged by depriving
her of her chosen attorney and whether the motion judge erroneously
applied RPC 1.12. We agree that the judge erred in disqualifying
the firm and reverse.
RPC 1.12 governs this circumstance. Subsection (a) declares
that "a lawyer shall not represent anyone in connection with a
matter in which the lawyer participated personally and
substantially as a . . . mediator . . ., unless all parties to the
proceeding have given consent, confirmed in writing." Without
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doubt, Moloughney, who mediated an earlier dispute between these
parties, could not represent Erica without David's consent, and
there is no doubt consent was not given. That, however, does not
end the matter.
The pressing question is not whether Moloughney may represent
Erica – he may not – but whether the firm's other attorneys may
represent her now that Moloughney is affiliated with the firm. RPC
1.12(b) declares that upon disqualification of a firm attorney –
here, Moloughney – "no lawyer in [that firm] may knowingly
undertake or continue representation in the matter unless":
(1) the disqualified lawyer is timely screened
from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given[1] to the
parties and any appropriate tribunal to enable
them to ascertain compliance with the
provisions of this Rule.
These conditions were met. Moloughney's relationship with the firm
was known to David and his attorney. And the firm and Moloughney
represented that the latter would be screened from any
participation or involvement in the matter.
1
This prompt-notice requirement has no bearing here. It may be
true that the firm did not immediately advise David's attorney of
Moloughney's affiliation with the firm when or as it occurred, but
there was then no pending matter between the parties. Once a
dispute later arose between these post-judgment matrimonial
litigants, David immediately learned of Moloughney's affiliation
because of what counsel's letterhead revealed.
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These facts were not disputed, and the judge recognized that
these elements for the firm's continued representation of Erica
were firmly in place. He observed in his oral decision that "if
the [c]ourt was to strictly . . . follow the letter of the RPC,
. . . [Erica's] argument might be prevailing." But, the judge
nevertheless disqualified the firm because Moloughney was the
parties' former mediator, because the mediation was recent
(eighteen months earlier), and because of a "psychological . . .
component," which the judge described in the following way:
When you're working with individuals in a
mediator capacity . . . you get to know how
that person ticks. You know where their weak
spots are, where their anger spots are, where
their strong parts and strengths [are]. . . .
You have . . . the inside skinny. [There is]
a significant advantage with regard to the
knowing and the doing and how you go forward.
The judge also expressed concern about how the public might view
the firm's continued involvement.
As noted, the firm represented that Moloughney would not
share any information he possessed – that he was and would remain
walled off from these proceedings. The judge recognized that,
while this was undoubtedly true, such a wall "doesn't give [David]
a comfort level." Consequently, the judge concluded that this
discomfort and the fact that, in the judge's view, a "reasonably
objective person in the public realm" would not look with favor
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on the firm's continued representation of Erica, warranted
disqualification.
We reject the judge's thoughtful but mistaken analysis. The
"appearance of impropriety" concept has been discarded. In re Sup.
Ct. Advisory Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 568
(2006). And a party's "discomfort" in an adversary's retention of
a particular attorney was not pronounced in RPC 1.12 as a ground
for disqualification. We must bear in mind that RPC 1.12 was not
only crafted with a mind toward someone in David's position, but
with the interests of someone in Erica's position as well. RPC
1.12 steers a course intended to protect both interests by
insisting on the formation of a wall between the former mediator
and the attorneys advocating on the client's behalf. All relevant
concerns are fully vindicated by application of the rule's actual
terms. The judge erred by applying additional terms not expressly
authorized by rule.
Reversed.
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