Elizabeth A. Comando v. Mary F. Nugiel , 436 N.J. Super. 203 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2403-13T4
ELIZABETH A. COMANDO, APPROVED FOR PUBLICATION
individually and derivatively
June 24, 2014
on behalf of 10 CENTRE DRIVE, LLC,
APPELLATE DIVISION
Plaintiff-Appellant,
v.
MARY F. NUGIEL1 and RCP MANAGEMENT
COMPANY,
Defendants-Respondents,
and
PRIDE CONSTRUCTION SERVICES, LLC,2
Defendant.
___________________________________
Argued May 7, 2014 - Decided June 11, 2014
Before Judges Lihotz, Maven and Hoffman.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-5130-13.
1
The record includes references to defendant Nugiel's former
name, Mary Faith Radcliffe, as she married on September 9, 2011.
2
Defendant Pride Construction Services is not participating
in this appeal.
Kevin J. O'Connor argued the cause for
appellant (Peckar & Abramson, P.C.,
attorneys; Mr. O'Connor, on the brief).
Robert J. Feinberg argued the cause for
respondents (Giordano, Halleran & Ciesla,
P.C., attorneys; David C. Roberts and
Michael T. Strouse, on the brief).
The opinion of the court was delivered by
LIHOTZ, J.A.D.
On our leave granted, plaintiff Elizabeth A. Comando,
individually and derivatively on behalf of 10 Centre Drive, LLC
(10 Centre), a corporation she owns with defendant Mary F.
Nugiel, appeals from a November 22, 2013 interlocutory order,
denying her motion to disqualify Norris McLaughlin & Marcus,
P.A. (NMM) from providing legal representation to defendants.
Plaintiff argues she was a former client, as NMM provided legal
representation to her in acquiring and securing financing of
real estate. Further, she alleges she was wrongfully denied the
right to exercise a promised option to acquire an ownership
interest in defendant RCP Management Company (RCP), which
maintained its headquarters in 10 Centre's realty. Finally,
Comando asserts NMM's current representation of defendants is
adverse to the interests of 10 Centre, which is also a current
client, noting NMM additionally provided prior representation
including preparation of the twenty-year lease agreement between
RCP, as tenant, and 10 Centre, as landlord.
2 A-2403-13T4
Since this matter was argued on May 7, 2014, we issued our
opinion in a related appeal that addressed another provision of
the same order. Comando v. Nugiel, A-2070-13 (App. Div. May 22,
2014). In that matter, we determined the provisions of the 10
Centre Operating Agreement required a form of alternative
dispute resolution once Comando and Nugiel were deadlocked over
whether to sell the realty owned by 10 Centre and leased by RCP
and defendant Pride Construction Services. Id. at 2.
Thereafter, we received correspondence, issued on behalf of
NMM by substituted counsel, advising that "as of May 20, 2014,
the Norris McLaughlin & Marcus firm has ceased rendering legal
services to the [d]efendants as it relates to this action in its
entirety." This materially changed the position NMM previously
had taken, as expressed in an email communication from NMM dated
March 13, 2014, to Comando's counsel, which advised of
substituted counsel undertaking representation, but stated
"[NMM] reserve[d] the right to continue to provide legal
representation to all of the [d]efendants in this matter, and
[NMM is] not representing . . . that [it would] never have
another conversation with [Nugiel] about this case, or about
other matters."
Defendants maintain that the substitution of counsel
coupled with the recent representations that NMM's legal advice
3 A-2403-13T4
on issues in this litigation has ceased moot Comando's arguments
raised on appeal. Comando disagrees and presses her claim of
disqualification. She identifies findings by the motion judge,
which, she asserts, if not reviewed and reversed, will adversely
affect the ongoing litigation. Specifically, Comando argues the
judge erroneously found NMM had not provided legal
representation to her. She also asserts that despite finding
NMM represented 10 Centre, the judge improperly rejected the
asserted corporate derivative claims and suggested instead that
the complaint alleges individual claims by Comando against
Nugiel.
Following our review, we conclude the record is far too
limited and contains material factual disputes making this court
unable to discern the full extent and nature of NMM's prior
legal representation of Comando, which could only have been
determined following an evidentiary hearing. The evidence
certainly shows NMM provided limited legal services to her and
also rendered extensive legal services to 10 Centre, as well as
RCP and Nugiel. Moreover, in at least one specific transaction,
that is the negotiation of the RCP lease for realty owned by 10
Centre, NMM acted as counsel for the landlord, 10 Centre, and
the tenant, RCP. The terms of and parties' compliance with that
lease are now at issue. Accordingly, NMM's continued dual
4 A-2403-13T4
representation of providing legal services to 10 Centre and, up
until recently, rendering legal advice to RCP to defend the
claims raised in this complaint, raises a conflict prohibited by
the Rules of Professional Conduct (RPC). Further, the trial
judge erroneously rejected the derivative claims by incorrectly
determining the issues raised claims held by Comando
individually.
At this juncture, NMM has removed itself from providing
legal representation to any party regarding this litigation.
However, with respect to the derivative claims advanced by 10
Centre, NMM has a continuing conflict prohibiting its
representation of the corporation, while also representing RCP,
which must be waived. Regarding Comando's claim of
disqualification based on her prior representation, although we
conclude the judge inaccurately found NMM provided no legal
representation to her, the record does not allow this court to
fully assess the extent and nature of that representation.
Nevertheless, NMM's complete withdrawal renders the question
moot.
I.
These facts are found in the motion record. Comando
commenced employment with RCP on March 1, 2004. In exchange for
Comando's employment efforts to grow RCP's business, she
5 A-2403-13T4
received a base salary and additional compensation of one-third
of the net profits generated in "the North Region," to which she
was assigned. Id. at 3. Comando also understood she would be
given the opportunity to obtain an ownership interest in RCP.
Ibid. She contends the parties entered into a Client Purchase
Option Covenant, setting forth the terms upon which she could
purchase the North Region portfolio in the event she or RCP
terminated her employment.
In 2009, Comando was promoted to Senior Vice President, and
on April 29, 2011, she was named a "Principal" of RCP. Ibid.
Comando avers that in the ensuing years she contributed
significantly to RCP's expansion in the region and its resulting
increases in revenue.
In June 2010, Nugiel retained NMM "to represent RCP in
general corporate matters arising from time-to-time." NMM's
June 28, 2010 engagement letter, authored by Jesse P. Nash,
acknowledged NMM had been retained "to represent [RCP] as an
entity" "for the purpose of: reviewing [RCP's] employee
manual/handbook and such other legal matters for and/or on
behalf of [RCP] as may arise from time[-]to[-]time." The letter
urged "any shareholder, director, member, partner or officer"
with legal questions regarding particular rights or obligations
to obtain separate counsel. Nash's letter concluded: "We will
6 A-2403-13T4
not represent the interests of any one individual in any way
that is in conflict with the interests of the entity as a
whole."
In early 2011, Comando and Nugiel formed 10 Centre as a
holding company to acquire and manage real property that would
become RCP's headquarters. According to Nash, Nugiel requested
he and NMM provide legal representation in "(1) the formation of
the limited liability company, (2) preparation of the RCP lease
for the property, (3) preparation of an operating agreement for
[10 Centre], and (4) [assistance] with legal issues surrounding
obtaining the financing needed by [10 Centre] to purchase the
new headquarters" for RCP. There is no mention of the
preparation or existence of a new engagement letter for these
new legal services and nothing to explain what role Comando had
in engaging NMM.
NMM incorporated 10 Centre and served as its registered
agent. In preparation of 10 Centre's operating agreement, Nash
acknowledged he conducted conference calls with Nugiel and
Comando, summarized provisions of the drafted documents, and
emailed a memo to both Nugiel and Comando regarding
modifications of the agreement terms.
Nash also assisted with the preparation, modification and
execution of an "agreement for purchase and sale" of the realty
7 A-2403-13T4
ultimately acquired by 10 Centre. In the purchase of the
realty, Nash assisted with the preparation, review and execution
of several agreements related to the intricate multi-million
dollar acquisition and the financing and re-financing of a
bridge loan. It is unclear whether he provided individual legal
advice to Nugiel regarding this transaction, while also acting
as 10 Centre's counsel. Nash also drafted a lease agreement
allowing RCP to lease the property acquired by 10 Centre for
twenty years at a flat rent.
In this regard, Nash insists he took direction from Nugiel
and "never gave [] Comando any personal advice or counsel on
those issues." This assertion contradicts his claim of serving
as counsel for the corporation not its members and also his
written representations contained in an opinion letter delivered
to TD Bank in respect of the highly complex financing
arrangement. In issuing his legal opinion, Nash stated NMM
acted as special counsel to 10 Centre Drive,
LLC (the "Borrower"), RCP Management
Company, Inc. (the "Equity Guarantor") and
Mary Faith Radcliffe and Elizabeth Comando
(each, an "Individual Guarantor" and
collectively, the "Individual Guarantors")
in connection with the closing . . . of a
$1,500,000 mortgage loan from you to
Borrower (the "First Mortgage Loan") and a
$350,000 bridge loan from you to Borrower
(the "Bridge Loan, and together with the
First Mortgage Loan, the "Loan Facilities").
8 A-2403-13T4
NMM maintains the opinion letter does not evince legal
representation was provided to Comando. Nash alleges he fully
informed Comando he was not her lawyer, as reflected in his memo
accompanying transmittal of 10 Centre's proposed operating
agreement, in which he stated:
As an initial matter (and as you both
know) I must stress that I represent
[Nugiel] and RCP [] in several matters. I
have drafted the attached based on your
instructions, but I do not represent
[Comando] in connection with these matters.
[Comando], this operating agreement is a
complicated document, I advise you to obtain
separate counsel to advise you and advocate
for your interests in connection with the
attached. Review of this cover note is not
a substitute for a careful review of the
attached with your own counsel. Please let
me know if you would like me to refer an
attorney to you.
. . . .
I have received a lot of feedback from
you both, and I attempted to harmonize all
of this feedback into a single set of terms,
but this was not always possible.
Nash certified that at the time he sent this document, Comando
"clearly communicated to [him] that she understood and
acknowledged the fact that [Nash] was not acting as her counsel
in connection with the subject series of transactions." Nugiel
also certified to her recollection of Nash's statements in an
unspecified phone conference that Comando "was not represented
9 A-2403-13T4
by NMM in connection with the formation of 10 Centre[], or
preparation of its operating agreement."
Comando disputes Nash's assertions of limited involvement
on her behalf. She maintains she and Nugiel were "sitting at
the table" with Nash "when 10 Centre was formed and the lease
was negotiated and filed." On or about July 5, 2011, Nash,
Nugiel and Comando discussed the initial draft of the operating
agreement and its terms during a conference call. In an e-mail
dated July 6, 2011, Nash sent the updated version to both Nugiel
and Comando, requesting they review the document and provide him
with any further comments. Comando sent Nash her personal
financial statement to be used when negotiating the mortgage and
requested he keep the documents confidential. Further, she
relied on NMM's July 19, 2011 opinion letter to TD Bank,
including several representations that applied to her. Among
these were the loan documents "constituted a legal, valid and
binding obligation of each [o]bligor" and that the execution of
the document "by each [o]bligor . . . d[id] not violate . . .
any applicable judgment, order, writ, injunction or decree known
to [NMM] of any court or other governmental authority." Comando
also supplied a September 14, 2011 email sent regarding an SBA
loan for 10 Centre, in which she identified Nash as her counsel.
10 A-2403-13T4
Nugiel and Comando's relationship deteriorated. Comando
alleges difficulties and disagreements arose between Comando and
Nugiel regarding RCP's finances and Nugiel's absence from the
office. Comando resigned from RCP on April 1, 2013. She
thereafter initiated this litigation.
By letter dated June 18, 2013, Comando's counsel expressed
his position "[Nash] and [NMM] are conflict[ed] from
representing any party in relation to these disputes[.]" She
thereafter moved for NMM's disqualification, alleging violations
of RPCs 1.7, 1.9 and 3.7. Following argument, the motion judge
rejected Comando's assertions, finding she "never sought or
received any legal advice from [NMM] in connection with the
issuance of the opinion letter" to TD Bank and emphasized
Comando was "advised repeatedly throughout the process of [10
Centre's] formation and financing that she was [not] [sic]
represented by [NMM] and that she should retain her own
attorney." The judge also rejected Comando's asserted
derivative claims on behalf 10 Centre, concluding they were
direct claims by Comando against Nugiel because Comando and
Nugiel were 10 Centre's sole shareholders.
Comando moved for interlocutory review. We granted leave
to allow consideration of the request for disqualification.
While the matter was pending, Comando moved to supplement the
11 A-2403-13T4
record stating documents finally released by defendants in
compliance with discovery demands supported her request to
reverse the trial court's order. She attached emails reflecting
NMM billing statements sent to her and Nugiel for fees rendered
for the real estate matter, including RCP's lease, billed to 10
Centre for payment; NMM trust account ledgers showing monies
paid by Comando and 10 Centre apparently for legal services
rendered to RCP; emails discussing substantive provisions of the
financial documents, including the need to execute a release and
Nash's opinion about doing so; correspondence from NMM to third
parties confirming its representation of 10 Centre; and emails
from Nash to Comando discussing 10 Centre's tax appeals.
Defendant opposed the motion as moot and, alternatively,
cross-moved to supplement the record with the email from Nash
stating NMM was no longer trial counsel for defendants in the
litigation. The email also advised NMM "reserve[d] the right to
continue to provide legal representation to all of the
[d]efendants in this matter, and [NMM was] not representing
. . . that [it would] never have another conversation with
[Nugiel] about this case, or about other matters."3
3
The inclusion of references to these materials signals our
decision to grant the motion and cross-motion to supplement the
record.
12 A-2403-13T4
II.
The review of a motion for disqualification requires a
court "to balance competing interests, weighing the 'need to
maintain the highest standards of the profession' against 'a
client's right to freely choose his [or her] counsel.'" Dewey
v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988) (quoting
Gov't of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir.
1978)). "[A] person's right to retain counsel of his or her
choice is limited in that 'there is no right to demand to be
represented by an attorney disqualified because of an ethical
requirement.'" Ibid. (quoting Reardon v. Marlayne, Inc., 83
N.J. 460, 477 (1980)). Our review of "an order granting or
denying a disqualification motion invokes . . . de novo plenary
review . . . ." Twenty-First Century Rail Corp. v. N.J. Transit
Corp., 210 N.J. 264, 274 (2012).
Comando identifies several bases to support
disqualification. We start with her argument that NMM's ongoing
representation of 10 Centre precluded its representation of RCP
in any adverse transaction. RPC 1.7 addresses concurrent
conflicts of interests and provides in pertinent part:
(a) Except as provided in paragraph (b), a
lawyer shall not represent a client if the
representation involves a concurrent
conflict of interest. A concurrent conflict
of interest exists if:
13 A-2403-13T4
(1) the representation of one client will be
directly adverse to another client; or
(2) there is a significant risk that the
representation of one or more clients will
be materially limited by the lawyer's
responsibilities to another client, a former
client, or a third person or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a
concurrent conflict of interest under
paragraph (a), a lawyer may represent a
client if:
(1) each affected client gives informed
consent, confirmed in writing, after full
disclosure and consultation. . . . When the
lawyer represents multiple clients in a
single matter, the consultation shall
include an explanation of the common
representation and the advantages and risks
involved;
(2) the lawyer reasonably believes that the
lawyer will be able to provide competent and
diligent representation to each affected
client;
(3) the representation is not prohibited by
law; and
(4) the representation does not involve the
assertion of a claim by one client against
another client represented by the lawyer in
the same litigation or other proceeding
before a tribunal.
This rule is easily applied in the context of litigation.
See Kevin H. Michels, New Jersey Attorney Ethics – The Law of
New Jersey Lawyering, § 19:2-1 at 407 (2012) ("RPC 1.7(a)(1)
clearly prohibits the representation of opposing parties in the
14 A-2403-13T4
same litigation."). See also N.J. Advisory Comm. on
Professional Ethics Op. 362 (1977) (holding a lawyer
representing both a union and an individual member of that union
had to withdraw from representation of both clients upon the
individual's filing a grievance against the union). We conclude
the rule's proscriptions must equally apply to transactional
matters, and a concurrent conflict of interest arises when "the
representation of one client will be directly adverse to another
client." RPC 1.7(a)(1).
"RPC 1.7 is rooted in the concept that '[n]o man can serve
two masters,' Raymond L. Wise, Legal Ethics 272-73 (1970), and,
it has been suggested that employment should be declined if
there is a question whether the representation will create an
adversity of interest between two clients." State ex rel. S.G.,
175 N.J. 132, 139 (2003). This principle applies here.
A.
Focusing on the corporate entities, NMM is counsel to RCP
and 10 Centre. There is no engagement letter explaining NMM's
role regarding 10 Centre or authorizing the firm to take
direction from Nugiel when acting on behalf of 10 Centre. The
twenty-year lease presents adverse interests between Nugiel and
RCP on one hand, and 10 Centre on the other, because lease terms
favorable to RCP may well be detrimental to 10 Centre. There
15 A-2403-13T4
was no evidence of a waiver by all clients when preparing the
lease between 10 Centre and RCP, which would include Comando who
was a fifty percent member of 10 Centre. See In re Dolan, 76
N.J. 1, 11, 13 (1978) (finding representation of a mortgagor and
mortgagee in a transaction is a direct conflict of interest
requiring informed consent of the clients, particularly in light
of "the possibility that as between buyer and developer-seller
there may ripen some disagreement respecting the physical
condition of the premises").
Further, the documents submitted strongly suggest Nash took
direction only from Nugiel on these matters, but she was one of
the two equal members of 10 Centre. The complaint challenges
Nugiel's actions as detrimental to the interest of 10 Centre and
as favoring those of RCP. It also asserts the rent paid by RCP
was not based on fair market value, a claim that appears to
strike at the heart of the potential conflict of interest and
implicates financial detriment to 10 Centre which has
significant debt service that must be met. See Michels, supra,
§ 19:3-1 at 440 ("RPC 1.7(a)(2) may be implicated when a lawyer
proposes to represent two or more persons with an interest in
the same object, occurrence, or transaction.").
Also, allegations such as minority shareholder oppression,
wrongful disposition of excess funds received by 10 Centre in
16 A-2403-13T4
the SBA loan closing, and diversion of profits based on Nugiel's
refusal to release the details of 10 Centre's financial affairs,
are problematic to NMM which purports to currently represent 10
Centre, as well as RCP and Nugiel.4 "RPC 1.7 reflects 'the
fundamental understanding that an attorney will give complete
and undivided loyalty to the client [and] should be able to
advise the client in such a way as to protect the client's
interests, utilizing his professional training, ability and
judgment to the utmost.'" J.G. Ries & Sons, Inc. v.
Spectraserv, Inc., 384 N.J. Super. 216, 223 (App. Div. 2006)
(alteration in original) (quoting State ex rel. S.G., supra, 175
N.J. at 139).
Prior to its recent withdrawal from all representation,
NMM's role in this litigation as counsel for Nugiel and RCP
against Comando and 10 Centre presented prima facie evidence of
a concurrent conflict of interest, waivable only by informed
written consent, which has never been presented. RPC 1.7(b)(1).
Further, NMM's continued representation of 10 Centre in a
transactional capacity will not diminish the adverseness between
RCP and 10 Centre. Nugiel, in her corporate capacity as a
member of 10 Centre, is alleged to have wrongfully controlled 10
4
NMM currently provides legal representation to 10 Centre in
its general business affairs, is involved in pending tax
appeals, and acts as its registered agent.
17 A-2403-13T4
Centre's financial affairs to aid RCP and harm 10 Centre. NMM's
legal representation of Nugiel and RCP impinges upon its
allegiance to protect 10 Centre's interests raising "a
significant risk that the representation of one or more clients
[would] be materially limited by the lawyer's responsibilities
to another client." NMM's loyalty to Nugiel and RCP prefers
their interest to the competing interests of 10 Centre. This
may not continue. RPC 1.7(a)(2).
The motion judge's characterization of the derivative
claims as a "red herring" is erroneous. He failed to analyze
the claims and their impact on 10 Centre, as well as its
creditors. The complaint asserts Nugiel breached her fiduciary
duty in carrying out her responsibilities as "an officer,
director and/or shareholder of . . . 10 Centre []," which
resulted in the failure to further the interests of 10 Centre in
favor of RCP; the improper management and operation of the
corporation and its finances; and the improper diversion of
funds away from 10 Centre "for personal and/or non-business
purposes." The action by Nugiel on behalf of 10 Centre, if
proven, would reveal actual harm done to the corporation,
impinging its ability to operate and satisfy its debts.
We reject as unpersuasive defendants' analogy between the
facts at hand and those in Kira Inc. v. All Star Maint. Inc.,
18 A-2403-13T4
267 Fed. App'x 352 (5th Cir. 2008). There, in concluding no
conflict of interest arose in rendering legal services to the
parties, the court relied directly on the jury verdict rejecting
as meritless the plaintiff's underlying claims. Id. at 356. We
cannot do the same in this newly commenced matter.
More apt to these facts is the Court's holding in In re
Berkowitz, 136 N.J. 134 (1994). In that matter, an attorney
represented a client seeking a zoning variance on land
contiguous to the property of a client represented by another
attorney at the firm. Id. at 135-36. The second client would
be adversely affected if the first client's application were
granted. Id. at 135. The Court reprimanded both attorneys, who
it found failed to fully disclose the potential conflict to the
clients, noting "the decision of whether to oppose the proposed
zoning would obviously create a division of loyalties between
[the attorneys] and their clients." Id. at 144.
We conclude the motion judge erred in rejecting Comando's
derivative claims on behalf of 10 Centre, without even
considering the need for further development of the facts and
circumstances surrounding her assertions, along with the nature
of NMM's actual representation of these clients. Further, NMM's
ongoing representation of Nugiel individually, RCP and 10 Centre
19 A-2403-13T4
on a transactional basis presents a concurrent conflict in
contravention of RPC 1.7(a).
B.
The record is less clear on the claims of conflict asserted
by Comando individually. Contrary to the motion judge's
statement, NMM provided at least limited representation to
Comando in the course of the loan transactions. NMM does not
dispute it represented itself to the lenders as Comando's
counsel for the purpose of effectuating the closing of the
identified loans. NMM's attempts to minimize the facts
regarding this representation are rejected. By their nature,
opinion letters are instruments of negotiation "made to induce
reliance," such that the law recognizes a duty owed to third
persons in preparing such documents. Banco Popular N. Am. v.
Gandi, 184 N.J. 161, 183 (2005). See also Petrillo v.
Bachenberg, 139 N.J. 472, 485 (1985).
"[I]f the prior and the subsequent matters are indeed the
same, the representation, absent written consent of the former
client, is prohibited." Twenty-First Century Rail Corp., supra,
210 N.J. at 276 (holding RPC 1.9(a) prohibited representation
where an opinion letter reflected counsel's awareness of the
adverseness of the current and former clients' positions in the
same dispute). Comando as a former client bears the burden of
20 A-2403-13T4
production of showing "that by application of RPC 1.9 [she]
previously had been represented by the attorney whose
disqualification is sought." City of Atl. City v. Trupos, 201
N.J. 447, 462 (2010). If she successfully provides necessary
proofs, "the burden shifts to the attorney(s) sought to be
disqualified to demonstrate that the matter . . . in which he or
[she or] they represented the former client are not the same or
substantially related to the controversy in which the
disqualification motion is brought." Id. at 463.
However, the record is insufficient to determine whether
that prior representation created a present conflict of
interest, proscribed by RPC 1.9(a).5 The filed certifications do
not provide conclusive documentation, but rely on oral
representations, which are disputed. Further, the record as
presented cannot support a determination that the prior
representation was sufficiently related to the current disputes.
5
RPC 1.9(a) provides:
A lawyer who has represented a client in a
matter shall not thereafter represent
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.
21 A-2403-13T4
See Trupos, supra, 201 N.J. at 467 (holding RPC 1.9(a) bars
representation of a client against a former client where "facts
relevant to the prior representation are both relevant and
material to the subsequent representation"). Perhaps an
evidentiary hearing could have fleshed out the competing oral
assertions and determined the extent of the attorney-client
relationship, but we conclude that such an effort is no longer
necessary. Although we reject as unsupported the trial judge's
finding that no representation was provided to Comando by NMM,
in light of NMM's current withdrawal, the issue is moot.
"Mootness is a threshold justiciability determination
rooted in the notion that judicial power is to be exercised only
when a party is immediately threatened with harm." Betancourt
v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010)
(citation omitted). "'A case is technically moot when the
original issue presented has been resolved, at least concerning
the parties who initiated the litigation.'" Ibid. (quoting
DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J.,
concurring) (citation omitted)). In other words, "[a]n issue is
'moot' when the decision sought in a matter, when rendered, can
have no practical effect on the existing controversy."
Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58
22 A-2403-13T4
(App. Div. 2006) (internal quotation marks and citation
omitted).
C.
Comando also contends NMM should be disqualified because
Nash could be called to testify at an ensuing trial.6 Even
though it is unclear how Nash's testimony supports or refutes
the remaining claims, this too is moot.7
III.
In summary, the motion judge's order denying the motion for
disqualification regarding 10 Centre's derivative claims was
grounded on erroneous legal conclusions. The conflict between
10 Centre and RCP may continue depending on NMM's continued
6
Under RPC 3.7(a):
[a] lawyer shall not act as advocate at
a trial in which the lawyer is likely to be
a necessary witness unless:
(1) the testimony relates to an
uncontested issue;
(2) the testimony relates to the
nature and value of legal services rendered
in the case; or
(3) disqualification of the lawyer
would work substantial hardship on the
client.
7
Defendants argue Comando's delay in moving for NMM's
disqualification is a waiver. The facts refute this claim. We
will not provide an extended discussion of the issue because
defendants did not file a cross-appeal.
23 A-2403-13T4
representation of these entities and Nugiel. Disqualification
based on Comando's claim of past representation is moot as is
the assertion Nash may be a necessary witness at trial. These
claims are dismissed.
Dismissed in part and reversed in part.
24 A-2403-13T4