DAVID BURKHARDT v. ERICA KASTELL

NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2724-17T3

DAVID BURKHARDT,

           Plaintiff-Respondent,

     v.

ERICA KASTELL, f/k/a ERICA
BURKHARDT,

          Defendant-Appellant.
________________________________

           Argued May 30, 2018 – Decided June 8, 2018

           Before Judges Fisher and Moynihan.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Family Part, Somerset
           County, Docket No. FM-18-0231-12.

           Andrew M. Shaw argued the cause for appellant
           (The DeTommaso Law Group, LLC, attorneys;
           Andrew M. Shaw, on the brief).

           Joanna R. Adu argued the cause for respondent
           (Lyons & Associates, PC, attorneys; William
           P. Lemega and Joanna R. Adu, on the brief).

PER CURIAM

     We granted leave to appeal an order that disqualified The

DeTommaso Law Group (the firm) from further acting as counsel for
defendant Erica Kastell because an attorney, who mediated an

earlier dispute in this post-judgment matrimonial matter, later

became affiliated with the firm. We reverse because the order

under review was based on considerations – the appearance of

impropriety and plaintiff David Burkhardt's "discomfort" – that

are not expressed in RPC 1.12.

     We briefly describe the events giving rise to this dispute.

The parties' 1996 marriage, which produced three children, was

dissolved by a judgment that incorporated the parties' 2011 marital

settlement agreement (MSA). In February 2016, they entered into a

post-judgment consent order that modified the MSA's parenting time

provisions; the firm represented Erica during that proceeding. The

parties, however, disputed certain financial issues generated by

the parenting-time adjustment; these disputes were referred to

James   Maloughney,   Esq.,   a   solo   practitioner,   for   mediation.

According to David,

           [t]he mediation process took over two months,
           with   countless   discussions,   emails   and
           telephone calls between both parties and Mr.
           Maloughney, as well as an approximate three
           (3) hour mediation session at Mr. Moloughney's
           office [in] Somerville . . . . In addition to
           these communications, there was considerable
           documentation exchanged and provided to Mr.
           Moloughney, who was privy to all of my
           information and documentation as it pertained
           our ongoing disputes. As a disinterested third
           party serving as mediator, Mr. Moloughney was
           given access to my personal and confidential

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            information,      business       records   and   personal
            files.

What David described as "lengthy back and forth discussions"

resulted in an April 28, 2016 consent order, which recalibrated

David's child-support obligation and modified other financial

matters.

     More than eighteen months later, a firm attorney wrote to

David's attorney to suggest mediation of a number of issues,

including child support. To the latter's surprise, his letterhead

revealed that Moloughney was "of counsel" to the firm. This

prompted a demand that the firm cease representing Erica. When the

firm refused, David promptly – and successfully – moved for the

firm's disqualification.

     We granted Erica's motion for leave to appeal so we might

consider whether her due process rights were damaged by depriving

her of her chosen attorney and whether the motion judge erroneously

applied RPC 1.12. We agree that the judge erred in disqualifying

the firm and reverse.

     RPC 1.12 governs this circumstance. Subsection (a) declares

that "a lawyer shall not represent anyone in connection with a

matter     in   which   the     lawyer        participated     personally    and

substantially as a . . . mediator . . ., unless all parties to the

proceeding have given consent, confirmed in writing." Without


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doubt, Moloughney, who mediated an earlier dispute between these

parties, could not represent Erica without David's consent, and

there is no doubt consent was not given. That, however, does not

end the matter.

     The pressing question is not whether Moloughney may represent

Erica – he may not – but whether the firm's other attorneys may

represent her now that Moloughney is affiliated with the firm. RPC

1.12(b) declares that upon disqualification of a firm attorney –

here,   Moloughney   –    "no   lawyer       in   [that   firm]   may   knowingly

undertake or continue representation in the matter unless":

           (1) the disqualified lawyer is timely screened
           from any participation in the matter and is
           apportioned no part of the fee therefrom; and

           (2) written notice is promptly given[1] to the
           parties and any appropriate tribunal to enable
           them   to  ascertain   compliance   with   the
           provisions of this Rule.

These conditions were met. Moloughney's relationship with the firm

was known to David and his attorney. And the firm and Moloughney

represented   that       the    latter       would   be   screened      from   any

participation or involvement in the matter.


1
  This prompt-notice requirement has no bearing here. It may be
true that the firm did not immediately advise David's attorney of
Moloughney's affiliation with the firm when or as it occurred, but
there was then no pending matter between the parties. Once a
dispute later arose between these post-judgment matrimonial
litigants, David immediately learned of Moloughney's affiliation
because of what counsel's letterhead revealed.

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     These facts were not disputed, and the judge recognized that

these elements for the firm's continued representation of Erica

were firmly in place. He observed in his oral decision that "if

the [c]ourt was to strictly . . . follow the letter of the RPC,

. . . [Erica's] argument might be prevailing." But, the judge

nevertheless disqualified the firm because Moloughney was the

parties'   former   mediator,   because   the   mediation   was    recent

(eighteen months earlier), and because of a "psychological . . .

component," which the judge described in the following way:

           When you're working with individuals in a
           mediator capacity . . . you get to know how
           that person ticks. You know where their weak
           spots are, where their anger spots are, where
           their strong parts and strengths [are]. . . .
           You have . . . the inside skinny. [There is]
           a significant advantage with regard to the
           knowing and the doing and how you go forward.

The judge also expressed concern about how the public might view

the firm's continued involvement.

     As noted, the firm represented that Moloughney would not

share any information he possessed – that he was and would remain

walled off from these proceedings. The judge recognized that,

while this was undoubtedly true, such a wall "doesn't give [David]

a comfort level." Consequently, the judge concluded that this

discomfort and the fact that, in the judge's view, a "reasonably

objective person in the public realm" would not look with favor


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on   the   firm's   continued   representation     of    Erica,   warranted

disqualification.

       We reject the judge's thoughtful but mistaken analysis. The

"appearance of impropriety" concept has been discarded. In re Sup.

Ct. Advisory Comm. on Prof'l Ethics Op. No. 697, 
188 N.J. 549, 568

(2006). And a party's "discomfort" in an adversary's retention of

a particular attorney was not pronounced in RPC 1.12 as a ground

for disqualification. We must bear in mind that RPC 1.12 was not

only crafted with a mind toward someone in David's position, but

with the interests of someone in Erica's position as well. RPC

1.12   steers   a   course   intended   to   protect    both   interests    by

insisting on the formation of a wall between the former mediator

and the attorneys advocating on the client's behalf. All relevant

concerns are fully vindicated by application of the rule's actual

terms. The judge erred by applying additional terms not expressly

authorized by rule.

       Reversed.




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