J.B. v. G.F.B.

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RECORD IMPOUNDED

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APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1802-13T3

J.B.,

Plaintiff-Respondent,

v.

G.F.B.,

Defendant-Appellant.

__________________________

November 13, 2014

 

Submitted October 28, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-0639-14.

Gary L. Goldberg, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant G.F.B. appeals from a domestic violence final restraining order (FRO) entered October 31, 2013.1 For the reasons that follow, we reverse and remand this matter for a new FRO hearing.

I

Defendant and plaintiff were involved in divorce proceedings, in which they were both represented by counsel. While the parties were engaged in mediation and before the divorce complaint was filed, plaintiff filed a domestic violence (DV) complaint against defendant. At a hearing on the DV complaint on October 17, 2013, defendant, who was representing herself in the DV case, brought to the court's attention an allegation that plaintiff's attorney in the DV case, Christine Rossi, Esq., had a conflict of interest.

After being placed under oath, defendant told the judge that she had consulted with Rossi about possibly retaining her in the divorce action. Defendant testified that during that consultation, she told Rossi details about her marriage. Defendant indicated that when she appeared at the DV hearing that day, she had not immediately realized that Rossi was the person she had spoken to, because the consultation had been by telephone. However, according to defendant, she then consulted her current divorce attorney, Gary Goldberg, Esq., and he told her that he had spoken to Rossi and that there was a conflict issue.

The DV judge then asked Rossi the following

Is there some issue here that I've got to worry about? She's claiming that you and she had an initial conference, and that she talked to you about something that would be the same or a substantially related matter and that we've got an issue here.

Rossi admitted that defendant had consulted with her "on a matrimonial case several months ago." However, at that time there was no domestic violence complaint pending. Rossi had no specific recollection of what she discussed with defendant, but she stated that "[a]s a matter of general course at an initial divorce consultation, I speak in general terms about the divorce process. I ask questions about the date of the marriage," the number of children the person has and "income information." Rossi stated that, in this case, because plaintiff was self-employed, she would have "indicated that we'd probably have to go through a business evaluation and/or cash flow analysis to address any financial issues." Rossi told the judge that, unless there was a domestic violence complaint pending at the time of the initial consultation, she would not have discussed domestic violence with the potential client.

However, Rossi also disclosed to the judge that plaintiff had contacted her the prior July or August concerning representing him in the divorce case. After he told Rossi the name of his business and his name, Rossi thought she might have a conflict of interest in representing him. She "[c]hecked [her] conflict list and saw that there was a conflict." Rossi stated that she then called defendant's divorce lawyer, Goldberg, "to see if there was an opportunity in the matrimonial matter with consent for me to participate with everybody's consent. And he spoke to his client and it was reported that, no, I could not be involved in the matrimonial, and I accepted that, as did my client."

Rossi then asserted that

[A]s far as this domestic violence litigation is concerned, Judge, I don't believe that there is anything that I would have gleaned at that matrimonial free initial consultation which lasts approximately an hour or less that I would have gotten into domestic violence because at that juncture it wasn't an issue.

And this is his restraining order against her. The prior history that's alleged on the face of this restraining order is prior history of restraining orders that he obtained against her.

After listening to these comments, the judge remarked that "from what you've said to me . . . you're putting yourself at risk" of violating the Rules of Professional Conduct. The judge then asked Rossi if she felt "comfortable that the issues that have been discussed are not something that would make you disqualified to represent [plaintiff]?" Rossi responded that "if the Court agrees that it's okay for me to continue my involvement and not disqualify me," she was willing to continue to represent plaintiff. The judge then asked defendant for more information about the consultation with Rossi.

Defendant responded that "I did at great length explain our whole marriage and everything that has been involved in it. . . . So, I don't feel comfortable with her representing [plaintiff.] I didn t feel comfortable with her representing him for the divorce, and I don't feel comfortable with her representing him in this matter either because she . . . knows . . . what's gone on between us." The transcript is unclear at this point, but defendant mentioned "prior history of our -- like, other issues of domestic violence and other things like that."

Without resolving what appeared to be a significant discrepancy between defendant's sworn version of the consultation and Rossi's unsworn version, the judge declined to disqualify Rossi. The judge reasoned that "there obviously can be some interaction here between DVs and the matrimonial [case], but based upon what I'm hearing here right now, I don't think that under RPC1.9 that I have to disqualify Ms. Rossi from representing [plaintiff]." She denied the application without prejudice to defendant producing "more information" on the issue.

On October 23, 2013, the FRO hearing was scheduled before a different judge. Rossi represented plaintiff, and defendant was pro se. Once again, defendant raised the conflict issue on the record. She presented the second judge with essentially the same information concerning her consultation with Rossi, and the fact that Rossi had been unable to represent defendant in the divorce action due to that prior consultation. She added that Rossi already knew the "prior history of domestic violence between my husband and myself." Rossi responded that her consultation with defendant was "about a matrimonial proceeding" and "not about domestic violence." She also presented the second judge with a copy of the order signed by the first judge declining to disqualify her.

In response to the second judge's questions, defendant insisted that she had discussed domestic violence issues with Rossi. In response, Rossi stated that it was "counterintuitive that she would have communicated with me about alleged acts of domestic violence that she committed upon her husband. This is her husband's application for a final restraining order. . . ." Rossi insisted that because the domestic violence allegedly occurred recently, after her consultation with defendant, the two of them could not have discussed domestic violence. She also pointed out that defendant had not filed a motion for reconsideration of the first judge's order. Defendant responded that she had told Rossi about domestic violence that plaintiff had previously committed against her.

After defendant indicated that she was not prepared to proceed with the FRO hearing, the second judge declared a recess and then adjourned the matter for hearing before the first judge.

On October 30, 2013, the parties appeared before the first judge for the FRO hearing. At this hearing, Rossi represented plaintiff and Fred J. Gelb, Esq. represented defendant. Gelb raised the issue at the beginning of the FRO hearing. The judge stated that she had already ruled on the issue and declined to reconsider it at that time absent some further evidence. Gelb reiterated his client's factual position and added that defendant believed the domestic violence complaint had been filed in order to obtain an advantage in the divorce case.

In response, Rossi made a representation that after the last hearing, she had checked her file and found no consultation notes beyond a brief note indicating that she had spoken to defendant on the phone and quoted her a certain amount that Rossi would require as a retainer. Rossi also explained that she would not hold an hour-long consultation on the telephone, but would have a five to ten minute discussion on the telephone, followed by an in-office consultation. She represented that she "never would have spent over an hour with [a prospective client] on the phone." Because she had no notes of an in-office conference, Rossi concluded that such a conference never occurred.

After declining to reconsider her original decision, the judge proceeded with the FRO hearing. Following two days of testimony, she found that defendant harassed plaintiff by setting fire to a blanket that he was using to cover himself while sleeping on a couch. In the course of her decision she discussed the prior history of domestic violence between the parties, and defendant's allegation that plaintiff's accusations were false and made for the purpose of gaining an advantage in the divorce case.2

After this appeal was filed, the first judge issued a supplemental written opinion, essentially adopting Rossi's version of the facts and concluding that defendant had not carried her burden of proving that Rossi should be disqualified.

II

On this appeal, defendant argues that the trial court erred in declining to disqualify plaintiff's attorney pursuant to RPC1.9, which 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.

[RPC1.9(a).]

The above-cited prohibition "is triggered when two factors coalesce: the matters between the present and former clients must be 'the same or . . . substantially related,' and the interests of the present and former clients must be 'materially adverse.'" City of Atlantic City v. Trupos, 201 N.J.447, 462 (2010).

[M]atters are deemed to be "substantially related" if (1) 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 (2) facts relevant to the prior representation are both relevant and material to the subsequent representation.

[Id.at 451-52.]

Even if the client has consulted the attorney without actually retaining her, the attorney is still disqualified if she acquired from the client confidential information material to the litigation. Dewey v. R.J. Reynolds Tobacco Co., 109 N.J.201, 222 (1988). The former client bears the burden of proving that the prohibition of RPC1.9 applies. Trupos, supra, at 462. However, if the client comes forward with prima facie proof, the burden of producing countervailing evidence shifts to the attorney. Id. at 462-63. Disqualification motions should normally be decided based on "affidavits" and other documentary evidence, unless live testimony is clearly required or witness credibility is in issue. Id.at 463. We review the trial court's decision de novo. Ibid.

In turning to the case before us, we understand that pro se litigants may pose special challenges to our courts as these litigants attempt to navigate unfamiliar legal procedures. These problems may be exacerbated in the context of domestic violence hearings, which are intended to provide expeditious determinations, and which often involve unrepresented litigants. When a pro se litigant appears in court making previously-unraised conflict claims, an attorney such as Rossi is placed in the unfair position of having to respond to the allegations with no notice. Thus, in the interests of fairness and the orderly administration of justice, a judge hearing such an application may appropriately adjourn the matter to give the attorney a chance to review her file before responding to the conflict allegations. SeeTwenty-first Century Rail Corp. v. N.J. Transit Corp., 210 N.J.264, 271 n. 3 (2012) (noting the impropriety of taking testimony only from one side).

However, in this case, we conclude that in light of Rossi's admission that she was disqualified from handling the divorcelitigation due to her prior consultation with defendant, the first judge should have disqualified her from the DV case without the need for further proceedings. Clearly, a domestic violence complaint filed during the pendency of a divorce case is not "unrelated" litigation. To the contrary, the two matters will almost invariably be substantially related. SeeBrennan v. Orban, 145 N.J.282, 290 (1996) (holding that marital torts are related to divorce cases for the purposes of the entire controversy doctrine). As in this case, there may be claims that the DV complaint was filed to gain advantage in the divorce action. And the outcome of the DV case may give one side a tactical advantage in the divorce litigation. In this case, for example, defendant was barred from the marital home while the divorce case was ongoing. She also claimed that she was rendered indigent.

The dynamics of the parties' marital relationship may also be important background to the DV case. Depending on what details a prospective matrimonial client has revealed to an attorney, that attorney may have a distinct advantage in representing the prospective client's spouse in the DV litigation.

In this case, where the husband's attorney admitted that she had a conflict of interest that precluded her from representing the husband in the divorce case, the trial court should not have permitted that attorney to represent the husband in the DV case. As a result we are constrained to reverse the October 31, 2013 FRO, and we remand this case to the Family Part for a new FRO hearing.

Reversed and remanded.

1 Plaintiff has not filed a brief.

2 Both before and after the FRO proceedings discussed here, defendant appeared before two other Family Part judges asking that plaintiff be required to provide her with some financial support. She claimed that as a result of the domestic violence temporary restraining order (TRO) and the later FRO, she was homeless and had no financial resources.