IN THE MATTER TENURE HEARING OF ALONZO KITTRELS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6497-05T36497-05T3

IN THE MATTER OF THE TENURE

HEARING OF ALONZO KITTRELS.

_______________________________________

 
Argued telephonically December 7, 2006 - Decided December 29, 2006

Before Judges Parker and Yannotti.

On leave to appeal from the Director, Office of Administrative Law, OAL Docket No. EDU 99-06S.

James F. Schwerin argued the cause for appellant Willingboro Board of Education (Parker McCay, attorneys; Mr. Schwerin, on the brief).

Salvatore Perillo argued the cause for respondent Alonzo Kittrels (Perskie Nehmad & Perillo, attorneys; Mr. Perillo and Elias T. Manos, on the brief).

PER CURIAM

The Willingboro Board of Education (Board) appeals on leave granted from a final determination of the Director (Director) of the Office of Administrative Law (OAL), finding that the Parker McCay law firm is disqualified from representing the Board in this tenure matter involving the Superintendent of Schools, Alonzo Kittrels (Kittrels). For the reasons that follow, we affirm.

The relevant facts are essentially undisputed. On April 6, 2005, Gale Hewett (Hewett) commenced an action in the United States District Court for the District of New Jersey against the Board, Kittrels, and Marvin D. Hopkins (Hopkins), the executive director of Human Resources and Administrative Services for the Willingboro Public Schools. Hewett v. Willingboro Bd. of Ed. (D.N.J. No. 05-CV-2035) (the Hewett matter). In her complaint, Hewitt alleged that she had been wrongfully discharged in violation of the federal Family and Medical Leave Act, 29 U.S.C.A. 2601 to -2654, and the common law.

James F. Schwerin (Schwerin) of the Parker McCay firm represented all of the defendants in the federal action, including Kittrels. On July 18, 2005, the Board voted to relieve Kittrels of his duties as Superintendent. Joan Josephson (Josephson), an attorney with the Parker McCay firm, provided legal advice to the Board with regard to its decision to suspend Kittrels.

By letter dated November 22, 2005, Schwerin informed the federal district judge managing the Hewett matter that Josephson was "currently drafting tenure charges" against Kittrels. In his letter, Schwerin noted that Josephson also had advised the Board with regard to its decision to terminate Hopkins. Schwerin stated that another law firm would be assuming responsibility for representation of the Board, but not Kittrels and Hopkins. Schwerin stated, "Clearly, this firm can no longer continue to represent them." Schwerin also asserted that a motion had been made to dismiss the complaint as to Kittrels and Hopkins. He stated that until that motion was granted, the firm had to be relieved as counsel for the individual defendants.

The factual basis for the tenure charges against Kittrels was set forth in an affidavit dated November 30, 2005, by Sarah Holley, president of the Board. Kittrels was charged with conduct unbecoming a public employee and insubordination. The charges were filed on or about December 27, 2005. Kittrels filed his answer on January 10, 2006. The matter was referred to the OAL for a hearing as a contested case pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -25.

It appears that the Board's insurance carrier did not promptly obtain new counsel for Kittrels and Hopkins in the Hewett matter. Consequently, the Parker McCay firm remained as counsel of record in that case until the federal magistrate judge entered an order on February 13, 2006, relieving the firm as counsel for Kittrels and Hopkins "effective immediately."

On or about March 6, 2006, Kittrels moved in the OAL to disqualify the Parker McCay firm in the tenure case. The ALJ issued a decision dated May 8, 2006, denying the motion. The ALJ concluded that RPC 1.7 was not applicable because Kittrels was no longer the firm's client. The ALJ found that RPC 1.9 applied in the circumstances but the rule did not require the firm's disqualification because the Hewett matter and the tenure case were not substantially related, and there was no evidence to show that Kittrels had revealed any information to Schwerin that could be used to Kittrels' disadvantage. The ALJ rejected Kittrels' contention that the firm was disqualified because Josephson was a potential fact witness in the case. The ALJ also found no basis to disqualify Josephson from representing the Board because Josephson purportedly had a close working relationship with Kittrels while he served as Superintendent of Schools.

On June 20, 2006, the Director granted Kittrels' motion for interlocutory review of the ALJ's decision pursuant to N.J.A.C. 1:1-14.10(k)5. In a decision dated July 26, 2006, the Director concluded that the firm was disqualified from representing the Board pursuant to RPC 1.7. The Director noted that, although Josephson did not handle the federal action, under RPC 1.10 any disqualification attributed to Josephson is imputed to all members of the firm. The Director found that because the firm was representing Kittrels in the federal action, RPC 1.7 barred the firm from assuming responsibility for the tenure matter. The Director determined that the firm's subsequent withdrawal as Kittrels' attorney in the federal action did not insulate the firm from the effect of the rule. By order entered on August 24, 2006, we granted the Board's motion for leave to appeal.

The Board argues the Director erred in concluding that the Parker McCay firm is disqualified from representing the Board in this case. The Board contends that RPC 1.7 does not apply because the firm is not representing the Board and Kittrels at the same time. The Board argues that in these circumstances RPC 1.9 applies because Kittrels is presently a former client of the firm and that rule does not preclude the firm's representation of the Board in this case. We disagree with the Board's contentions and affirm substantially for the reasons stated by the Director in her final decision. We add the following brief comments.

RPC 1.7 provides in pertinent part that, except as otherwise permitted, a lawyer "shall not represent a client if the representation involves a concurrent conflict of interest." The rule states that a "concurrent conflict of interest exists" when:

(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.

The rule bars an attorney from taking a position that is "adverse to another client's interests." State of N.J. in the interest of S.G., 175 N.J. 132, 138 (2003). Although RPC 1.7 allows concurrent representation if any attorney reasonably believes that such representation will not adversely affect either client and both clients consent after full disclosure, "a public entity cannot consent to any such representation." RPC 1.7(b)(1).

As the Director correctly found, RPC 1.7(a) barred Josephson from assuming responsibility for the tenure action while another member of the Parker McCay firm was representing Kittrels in the Hewett matter. At that time, both the Board and Kittrels were clients of the firm and the tenure case was directly and substantially adverse to Kittrels' interest. RPC 1.7 precluded Josephson from providing advice regarding Kittrells' suspension and representing the Board in the tenure matter while Schwerin was representing Kittrels in the federal action. Pursuant to RPC 1.10, any conflict of interest under RPC 1.7 is imputed to all members of the firm. S.G., supra, 175 N.J. at 138.

Although the firm was relieved as counsel for Kittrels in the Hewett case as of February 2, 2006, its disqualification continued. "One of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients." S.G., supra, 175 N.J. at 138 (quoting In re Opinion No. 653 of the Advisory Comm. on Prof'l Ethics, 132 N.J. 124, 129 (1993)). This duty of loyalty precludes an attorney from dropping a client like a "hot potato" in order to avoid a conflict with "another, more remunerative" client. Santacroce v. Neff, 134 F. Supp. 2d 366, 370 (D.N.J. 2001) (quoting Int'l Longshoremen's Ass'n, Local Union 1332 v. Int'l Longshoremen's Ass'n, 909 F. Supp. 287, 293 (E.D. Pa. 1995)). When the Board decided to suspend Kittrels and file tenure charges seeking his removal, he became the proverbial "hot potato." However, the duty of loyalty that an attorney owes to its client precluded the firm from "dropping" Kittrels so that it could represent the Board in this case.

Affirmed.

 

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A-6497-05T3

December 29, 2006