LISA I. GREEBEL VS. MICHAEL A. LENSAK (FM-19-0178-15, SUSSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1784-19
LISA I. GREEBEL,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. April 14, 2020
APPELLATE DIVISION
MICHAEL A. LENSAK,
Defendant-Appellant.
_________________________
Submitted March 1, 2021 – Decided April 14, 2021
Before Judges Messano, Hoffman and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FM-19-0178-15.
Celli, Schlossberg, De Meo, & Guisti, PC, attorneys for
appellant (Alfonse A. De Meo, on the briefs).
Snyder, Sarno, D'Aniello, Maceri & Da Costa, LLC,
attorneys for respondent (Angelo Sarno, of counsel and
on the brief; Laura Guinta Gencarelli, on the brief).
The opinion of the court was delivered by
HOFFMAN, J.A.D.
This appeal arises from post-judgment motions in this palimony suit,
which settled in 2018, between plaintiff Lisa Greebel and defendant Michael
Lensak. Defendant appeals from two orders entered by the Family Part on
November 22, 2019 that disqualified defendant's counsel, dismissed without
prejudice defendant's motion to vacate the final judgment, sealed defendant's
motion and all associated pleadings, and barred use of the pleadings without
further court order. We affirm the orders insofar as they disqualify defendant's
counsel and dismiss defendant's motion to vacate; however, we reverse the
provision sealing and barring further use of the motion pleadings.
I.
We discern the following facts from the motion record. The parties never
married, but shared a long-term, romantic relationship from approximately June
2000 to March 2013. During this time, the parties purchased a home,
cohabitated, and raised their daughter together. Defendant did not want to marry
but promised to financially support plaintiff, who quit her job to raise their
daughter.
During the parties' relationship, defendant allegedly made threats to leave
plaintiff. For this reason, in 2005, plaintiff sought legal advice from attorney
Vincent Celli of Celli, Schlossberg, De Meo, & Guisti, P.C. (the Celli firm)
about her right to financial support from defendant if the parties ever ended their
relationship without marrying. Plaintiff expressed concerns about defendant
threatening to leave her, resisting marriage, and potentially misrepresenting his
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income and assets. Plaintiff also disclosed to Mr. Celli the parties' financial
arrangements, lifestyles, assets, and income. Specifically, plaintiff disclosed the
parties' acquisition of their home and handling of finances. Given this
information, Mr. Celli explained to plaintiff the concept of palimony and her
right to support, estimated plaintiff's potential relief, and advised plaintiff not to
marry defendant; if the parties married and divorced, a court would exclude the
pre-marriage years in calculating plaintiff's relief.
Using a different attorney, on October 27, 2014, plaintiff filed a complaint
for palimony against defendant. The parties ultimately entered into a settlement
agreement wherein, among other things, defendant agreed to provide plaintiff
with monthly palimony payments of $3,435.31 over twelve years and weekly
child support payments of $142 until their daughter's emancipation. The court
entered a final judgment incorporating the settlement agreement on September
4, 2018.
Thereafter, defendant retained the services of Mr. Celli. On September 3,
2019, Mr. Celli filed a motion for defendant to vacate the final judgement
pursuant to Rule 4:50-1, re-open discovery, and set aside the settlement
agreement. Defendant alleged he discovered, after entry of the final judgment,
that plaintiff intentionally misrepresented and concealed her income and assets
during settlement negotiations.
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On October 19, 2018, in addition to moving to dismiss defendant’s motion
and obtain attorney's fees, plaintiff moved to disqualify the Celli firm from
representing defendant, alleging the 2005 disclosure created a disqualifying
conflict. With the motion, plaintiff provided her own certification and a 2013
email she sent to her attorney, Angela Paternostro-Pfister, prior to settlement
negotiations, in which she recounts following Mr. Celli's advice not to marry
defendant.
On November 19, 2019, the motion court heard argument on the matter
and issued an oral opinion on the record on November 20, 2019. First, the court
found plaintiff presented sufficient evidence the consultation occurred based on
her certification and the 2013 email. Furthermore, the court found a
disqualifying conflict based upon plaintiff disclosing to Mr. Celli "significantly
harmful" information, specifically about the parties' finances and defen dant's
continued promises of support, "substantially related" to the issues involved in
Mr. Celli's representation of defendant in challenging the final judgment. The
court gave particular weight to the 2013 email wherein plaintiff confirmed she
relied upon Mr. Celli's advice in her relationship with defendant.
Because the court found Mr. Celli, and by extension the Celli firm,
disqualified, the court found it "important that the work that [the Celli firm has]
done in conjunction with [defendant's motion to vacate] not in any way be
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utilized in the event that [defendant] is to pursue this claim either as a self -
represented litigant or should he hire new counsel."
Accordingly, the court issued two orders on November 22, 2019: the first
one, disqualifying the Celli firm, sealing the pleadings, and barring defendant
from sharing the pleadings or any supporting documents with new counsel, and
the second one, dismissing defendant's motion to vacate because of the
disqualifying conflict.
Defendant now appeals the two orders, arguing:
POINT I
THE COURT FAILED TO PROPERLY APPLY THE
STANDARD SET FORTH IN O BUILDERS AND
ASSOC. V. YUNA CORP. OF NEW JERSEY, 206 N.J.
109 (2011). (Not raised below)
POINT II
THE COURT ERRED BY DISQUALIFYING
DEFENDANT’S COUNSEL.
POINT III
THE COURT ABUSED ITS DISCRETION IN
DISMISSING THE DEFENDANT’S MOTION TO
VACATE.
POINT IV
THERE WAS NO BASIS IN STATUTE, CASE LAW
OR COURT RULE TO SEAL THE PLEADINGS OR
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TO BAR MR. LENSAK FROM FURTHER USING
THE PLEADINGS.
II.
We review a decision on a disqualification motion de novo. City of Atl.
City v. Trupos, 201 N.J. 447, 463 (2010). We 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) (internal quotations omitted).
Defendant contends the motion court erroneously disqualified the Celli
firm because plaintiff failed to provide the information disclosed to Mr. Celli
with specificity and any disclosed information would be discoverable. We
disagree.
R.P.C. 1.18(a) "prohibits a lawyer who has had discussions with a
prospective client from revealing any information acquired during the
consultation . . . except to the extent R.P.C. 1.9 would permit the lawyer to reveal
information acquired from a former client." Kevin H. Michels, New Jersey
Attorney Ethics: The Law of New Jersey Lawyering § 21:2-3 at 512 (2011).
R.P.C. 1.18(b) "precludes any representation of a client with interests materially
adverse to those of a former prospective client in the same or a substantially
related matter if the information acquired from the former prospective client
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could be significantly harmful to that person in the matter." Id. at 512-13. To
justify disqualification, two factors must coalesce: 1) the information disclosed
in the consultation must be the same or substantially related to the present
lawsuit and 2) the disclosed information must be significantly harmful to the
former client in the present lawsuit. O Builders & Assocs., Inc. v. Yuna Corp.
of N.J., 206 N.J. 109, 113-14 (2011).
Furthermore, the former client must make more than "bald and
unsubstantiated assertions" that she disclosed "business, financial and legal
information" that the client believes might be related to the present matter. Id.
at 129. Matters are "substantially related" if "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 the "facts relevant to the prior
representation are both relevant and material to the subsequent representation."
Id. at 125 (quoting Trupos, 201 N.J. at 451-52). Information is "significantly
harmful" if "prejudicial in fact to the former prospective client within the
confines of the specific matter in which disqualification is sought[.]" Id. at 126.
Applying these principles, we conclude the motion court correctly
determined that plaintiff disclosed to Mr. Celli significantly harmful information
substantially related to this litigation. Plaintiff disclosed to Mr. Celli her views
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and concerns about the parties' relationship, financial arrangements, lifestyles,
assets, and income. This information was, and remains, substantially related to
this litigation; the disclosed information was material to plaintiff's claim for
palimony, the same issue at the heart of this litigation. Palimony centers on
promises of continued support and the relationship between the parties, Levine
v. Konvitz, 383 N.J. Super. 1, 3 (App. Div. 2006), and plaintiff disclosed such
information to Mr. Celli. Though disclosed nine years before the plaintiff's
alleged misrepresentation, the information is nonetheless substantially related,
covering the parties' finances for the first four years of their relationship that
would form the basis for their settlement agreement.
Moreover, the disclosed information could be used against plaintiff in this
litigation. Specifically, plaintiff disclosed information and personal concerns
about the parties' relationship and financial arrangements. This information
informed Mr. Celli's advice and provides, at least in part, insight into plaintiff's
motivations in her relationship with defendant, relevant for years after the
disclosure. Defendant, who would not otherwise have access to plaintiff's
personal thoughts, could use this information against plaintiff in challenging her
palimony award or in future settlement negotiations. We find no basis to disturb
the motion court's determination that the disclosed information is, therefore,
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substantially related to this litigation and significantly harmful to plaintiff,
creating a disqualifying conflict.
Because the motion court properly disqualified Mr. Celli and his firm, the
court also properly dismissed without prejudice defendant's motion to vacate
filed by the Celli firm. The court correctly concluded it could not address this
motion on the merits with disqualified counsel. Defendant may refile the motion
within thirty days of this opinion. We affirm these portions of the orders.
III.
Though we find a disqualifying conflict, we agree with defendant insofar
as he argues the motion court erroneously ordered the motion pleadings sealed
and barred from further use. As defendant accurately asserts, the motion court
made no factual findings or conclusions of law to justify the sealing.
There is a presumption of public access to documents and materials filed
in a civil action. Hammock by Hammock v. Hoffmann-Laroche, 142 N.J. 356,
380 (1995). The presumption may be rebutted by showing "[d]isclosure will
likely cause a clearly defined and serious injury to any person" and "[t]he
person's . . . interest in privacy substantially outweighs" the need for access. R.
1:38-11.
The sealing of documents is "addressed to the trial court's discretion," but
"that discretion must be structured." Hammock, 142 N.J. at 380. The court must
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state with particularity the facts that "currently persuade the court to seal the
document[s]." Id. at 382. The court must "examine each document individually
and make factual findings" with regard to why the interest in public access is
outweighed by the interest in nondisclosure. Keddie v. Rutgers, 148 N.J. 36, 54
(1997).
Here, the motion court made no findings regarding what, if any, harmful
information the motion pleadings contain. Nor do we find plaintiff
demonstrated sufficient cause for sealing; the disclosed information previously
discussed is not the basis for defendant's motion to vacate. Defendant's motion
was premised largely on public records of property transfers plaintiff allegedly
made with family members, and other allegations occurring long after any
consultation with Mr. Celli. Accordingly, we reverse the order as it relates to
sealing the pleadings and barring their further use and direct the motion court to
unseal the pleadings.
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
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