LINDA G. BIXBY v. ALEXANDER DEANGELIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2208-08T22208-08T2

LINDA G. BIXBY,

Plaintiff-Appellant,

v.

ALEXANDER DEANGELIS,

Defendant-Respondent.

____________________________

 

Submitted May 27, 2009 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2551-07.

Attorneys Hartman, Chartered, attorneys for appellant (Francis J. Hartman, on the brief).

Grueneberg Law Group, LLC, attorneys for respondent (Rudi R. Grueneberg, on the brief).

PER CURIAM

On leave granted, plaintiff Linda G. Bixby appeals from the November 7, 2008 order disqualifying the law firm of Attorneys Hartman, Chartered (the Law Firm) as her counsel in the present action. We affirm.

Following a long term relationship between the parties, plaintiff moved from New Jersey to California in July 2005. On September 10, 2007, plaintiff filed a complaint against defendant Alexander DeAngelis, alleging that prior to leaving New Jersey she had entrusted defendant to hold certain items and $5,000 in cash in trust for her son. Plaintiff contends that defendant refused to return the persona1 property to her son; used either a portion or all of the $5,000 for personal reasons; and informed third parties that she and defendant were married when, in fact, they were not. Plaintiff asserted claims for the return of her personal property and cash; and for defamation. Defendant counterclaimed, seeking the return of items of jewelry he allegedly entrusted with plaintiff, as well as damages for accounting and childcare services rendered to plaintiff during her prior divorce action.

On July 9, 2008, plaintiff's counsel, Francis J. Hartman, deposed defendant. During the deposition, counsel inquired of defendant's personal lifestyle and his family relationship. After the deposition, Katherine D. Hartman, another member of the Law Firm, informed Francis Hartman that she had recalled previously representing defendant in 2001 in an employment action against his former employer, wherein defendant contended that he had been discriminated against on the basis of his sexual orientation and preference.

On July 29, 2008, Francis Hartman sent defendant's counsel a letter informing him of Katherine Hartman's prior representation of defendant. In addition, the letter provided: "Frankly, your client may already have made you aware of that fact. [Katherine] cannot recall any information that she acquired of a confidential nature during that representation. If your client does, I would appreciate your telling us what that is." The letter further provided: "Since it is unlikely that [Katherine] will do any work on this file, as well as the fact that she can recall no confidential information that could assist us in the claim of Ms. Bixby, I ask that you have your client waive, in writing, any suggestion of a conflict."

On August 11, 2008, defendant's counsel replied that defendant had "not realize[d] the prior representation until after his deposition on July 9, 2008," and defendant "was very upset that the same firm which had represented him with respect to a highly sensitive and confidential matter was now representing Linda Bixby in a litigation involving very similar sensitive and personal matters." Defense counsel requested the Law Firm withdraw as counsel for plaintiff in the action.

In October 2008, defendant filed a motion to disqualify the Law Firm from representing plaintiff in the lawsuit. On November 7, 2008, Judge Suter entered an order, supported by an oral decision, granting the motion disqualifying the Law Firm as counsel in the matter, extending discovery, and adjourning a pending arbitration proceeding for plaintiff to retain new counsel. On January 5, 2009, we granted plaintiff's motion for leave to appeal.

On appeal, plaintiff argues that the trial court erred in granting defendant's motion because defendant had not established that the prior employment action and the present action "are substantially related." We disagree.

Our review of the trial court's decision is plenary. "Where[,] as here[,] the trial judge had no factual disputes to resolve on credibility grounds and only legal conclusions to draw, we are not required to defer to the trial judge's findings." State v. Bruno, 323 N.J. Super. 322, 331 (App. Div. 1999). Appellate review of a trial court's decision, granting or denying a motion to disqualify trial counsel, presents a question of law subject to review de novo. J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 222 (App. Div. 2006).

Generally, "[m]otions to disqualify [opposing counsel] are viewed with disfavor." Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099, 1114 (D.N.J. 1993) (internal quotations omitted). Accordingly, the party seeking to disqualify counsel "bears the burden of proving that disqualification is justified." N.J. Div. of Youth & Family Servs. v. V.J., 386 N.J. Super. 71, 75 (Ch. Div. 2004) (internal quotations and citation omitted). Once a conflict of interest is determined to exist, the appropriate remedy is disqualification of the attorney. State v. Loyal, 164 N.J. 418, 430 (2000).

"One of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients. From that duty issues the prohibition against representing clients with conflicting interests." In re Opinion No. 653 of the Advisory Comm. on Prof'l Ethics, 132 N.J. 124, 129 (1993). In determining whether a conflict exists in the present matter, we are guided by the Rules of Professional Conduct (RPC).

RPC 1.7 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:

. . . .

(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.

[(Emphasis added).]

RPC 1.9 provides in pertinent part:

(a) 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.

. . . .

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Accordingly, a conflict may arise from an attorney's duty owed to a former client. Moreover, where an attorney is prohibited from representing a client pursuant to RPC 1.7 or RPC 1.9, the prohibition applies to all members of the attorney's firm "unless the prohibition is based on a personal interest of the prohibited [attorney] and does not present a significant risk of materially limiting the representation of the client by the remaining [attorneys] in the firm." RPC 1.10(a).

Both parties acknowledge that the issue should be resolved under the "substantial relationship test" of RPC 1.9(a), that is, did defendant establish: 1) the existence of a prior attorney-client relationship involving the attorney sought to be disqualified; 2) that the current representation involves the same or a matter substantially related to the former representation; and 3) that the interests of the attorney's current client are materially adverse to the interests of the former client. Home Care Indus., Inc. v. Murray, 154 F. Supp. 2d 861, 866 (D.N.J. 2001); Host Marriott Corp. v. Fast Food Operators, Inc., 891 F. Supp. 1002, 1007 (D.N.J. 1995). Plaintiff concedes that prongs (1) and (3) were met; plaintiff also concedes that defendant did not waive the conflict of interest because of the lapse of time between the filing of the complaint and the filing of the motion. Accordingly, the issue is whether plaintiff proved prong (2) of the substantial relationship test.

In granting the motion, the judge reasoned:

Motions to disqualify are disfavored. We know that. . . . [U]nder the law, . . . it's only to be done when it's absolutely necessary. . . .

What [is] . . . RPC 1.9? "An attorney who has represented a client in a matter cannot then represent another client in the same or substantially related matter, in which that client's interests are materially adverse to the interests of the former client, unless [the] former client consents after full disclosure." There's no consent. That's the standard.

. . . .

It's undisputed that Katherine Hartman of Mr. Hartman's firm represented the plaintiff in an employment litigation involving [his former employer]. He was a plaintiff in that matter. He sought damages for a demotion from his accounting job. And, apparently, allegations of his sexual preference or being gay were raised in that case.

He says that he gave sensitive, intimate information to Ms. Hartman. And, according to the pleadings from Mr. Hartman -- there is no affidavit or certification from Ms. Hartman. But Mr. Hartman says that Ms. Hartman says that she doesn't remember anything of a sensitive, factual nature.

One of my concerns about this case is whether or not if I were to allow the relationship to continue between the [plaintiff] and her counsel if I were to say this was not a conflict, whether somewhere down the road, you know, the [light bulb] goes off. I mean, we all deal with so many cases and so many facts that it's hard to remember. You know, it's hard to remember.

. . . .

[T]he issue becomes whether it's a similar matter, substantially the -- the RPC is whether it's a substantially related matter.

Substantially related means, according to the case law, you don't compare the causes of action. You compare the factual bases of the causes of the action. And the standard is, according to the case law, "In the course of other representation, did the attorney acquire information related to the subject matter of the subsequent representation?" I think, yes. I think the answer is yes in this case.

This case involves the personal relationship between the defendant and the plaintiff. And that's ultimately, no matter what the claims are, the property, jewelry, whatever, it's their personal relationship that fell apart or is -- is the central focus of all the claims.

The last case . . . dealt with the defendant -- the [defendant's] sexual preference, but also with his personal relationships, not just with this plaintiff, but with others. But it clearly, that's -- the plaintiff's personal relationships that are at issue in this case and that [were] raised in the other case as well.

In the last case, he says he disclosed personal, sensitive and private information to Ms. Hartman. She, herself, does not deny that. It's denied through Mr. Hartman. She has not submitted a certification. But . . . Mr. Hartman, being an officer of the [c]ourt, I have no doubt that they've had that conversation and -- and that . . . was what was said that she has not herself personally denied that.

Even if her recall [was] that she doesn't remember anything, it's still -- both of these cases are going to relate in some way to personal relationships by the plaintiff. And the [c]ourt believes then that the factual bases overlap enough to call this case a substantially related matter under . . . [RPC] 1.9.

[(Emphasis added).]

We have considered plaintiff's argument in light of the record and applicable law, and affirm substantially for the reasons expressed by Judge Suter. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comment.

Defendant's motion was supported by his personal certification in which he certified that:

My lawsuit against [my former employer] sought damages . . . for the demotion on the basis of my sexual orientation/preference from my accountant position. During the course of the litigation, I was required to provide intimate, sensitive and extremely confidential personal information in that suit to Katherine D. Hartman, Esq.[,] during the course of the representation in that case.

Plaintiff opposed the motion through the submission of Francis Hartman's certification in which he certifies that he pointed out to defense counsel in his letter of July 29, 2008, "that [Katherine] cannot recall any information that she acquired of a confidential nature during that representation. We asked if the client had any such recall, and if so, that we would appreciate being told what the confidential information was."

Although the court accepted counsel's statement that the conversation had occurred between him and Katherine Hartman, as noted by the trial court, plaintiff, contrary to Rule 1:6-6, did not submit a certification from Katherine Hartman. That rule requires facts not appearing of record or not judicially noticeable to be submitted to the court by affidavits [or certifications] "made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is confident to testify." R. 1:6-6. Accordingly, that defendant had provided Katherine Hartman personal, confidential information during her prior representation of him was, for purposes of the motion, unopposed.

Affirmed.

 

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A-2208-08T2

July 15, 2009