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Barnes v. R.J. Reynolds Tobacco Co.

Decided: March 7, 1991.

ANN MARIE T. BARNES, PLAINTIFF-RESPONDENT,
v.
R.J. REYNOLDS TOBACCO CO. AND THE TOBACCO INSTITUTE, DEFENDANTS-APPELLANTS, AND BROWN & WILLIAMSON TOBACCO CORPORATION, INTERVENOR-APPELLANT. JOHN PAUL BERKO, SR., AND CORINNE BERKO, PLAINTIFFS-RESPONDENTS, V. R.J. REYNOLDS TOBACCO CO., DEFENDANT-APPELLANT. DORIS SMITH AND LEROY SMITH, PLAINTIFFS-RESPONDENTS, V. R.J. REYNOLDS TOBACCO CO. AND THE AMERICAN TOBACCO CO., DEFENDANTS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Gaulkin, Havey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

[246 NJSuper Page 350] Pursuant to leave granted, defendants and intervenor Brown & Williamson Tobacco Company (B & W) appealed from the denial of their motions to disqualify Wilentz, Goldman & Spitzer (the Wilentz firm) from serving as co-counsel to plaintiffs in these three lawsuits. Subsequently, the Supreme Court of New Jersey decided Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 536 A.2d 243 (1988), which involved a motion to disqualify the Wilentz firm under closely related circumstances. Accordingly, we remanded these matters, without retaining jurisdiction, for the development of a fuller record with respect to the circumstances identified by the Court in Dewey relevant to the motions for disqualification. We described the issues to be addressed on the remand as follows:

(1) the status of the present litigation and the possible prejudice to plaintiffs by virtue of removal of the Wilentz Goldman firm, and (2) the relationship of these cases to Dewey, the role B & W played in the Tobacco Institute, the nature and extent of B & W's participation in any joint defense or strategy involved in these cases, and any knowledge Sidney Weiss may have had with respect to that strategy.

In essence, the trial judge should update the record in light of Dewey and decide whether Wilentz Goldman should be disqualified and, independently, whether because of Wilentz Goldman's expertise as a result of their involvement with these and related matters, and given the status of these matters, this is such an "unusual case," Dewey, 109 N.J. at 222 [536 A.2d 243], that it permits or requires Wilentz Goldman's continued involvement, with or without pay.

On remand, the trial court conducted a two day evidentiary hearing regarding all the circumstances of the Wilentz firm's representation of plaintiffs. On August 7, 1990, the court issued a written opinion in which it concluded that the Wilentz firm's continuing representation of plaintiffs violates the Rules of Professional Conduct (RPC), but that in light of the "compelling and unusual" circumstances of this case and the "public policy" in favor of affording "plaintiffs an opportunity to be heard," the Wilentz firm would be permitted to continue representing plaintiffs. The trial court further concluded that "[b]ecause of the fact that this case has been stayed pending the determination of the Wilentz disqualification and in light of the representations of all counsel that there is substantial discovery remaining, the Wilentz office will not be prevented from collecting a fee if in fact one is generated."

Defendants and B & W again moved for leave to appeal from the order denying their motions to disqualify the Wilentz firm, which we again granted.

Dewey and the three cases before us on this appeal together with four other products liability cases against tobacco companies were brought by the Wilentz firm as co-counsel with two other law firms, Budd, Larner, Gross, Picillo, Rosenbaum, Greenberg & Sade (the Budd Larner firm) and Porzio, Bromberg & Newman (the Porzio firm). However, the Porzio firm's involvement ended when the attorney responsible for the cases,

Marc Edell, left Porzio and became affiliated with Budd, Larner.

The defendants in the eight cases differed, depending on what brand or brands of cigarettes the plaintiff or plaintiff's decedent had smoked. B & W was a defendant in Dewey but is not a defendant in the three cases before us.

When the suits were filed, B & W was represented by the firm of Rosen, Weiss, Slattery & Burstein (the Rosen firm). William Slattery and Sidney Weiss were both partners in that firm. Slattery spent more than half his time during 1984 and 1985 representing B & W. Weiss had only limited involvement in the Rosen firm's representation of B & W, consisting of a little over an hour of research, the resolution of a question of possible conflict of interest with a client and limited discussions with Slattery regarding the representation.

In November 1985, Slattery left the Rosen firm and became a partner in the firm of Norris, McLaughlin & Marcus (the Norris McLaughlin firm), taking B & W with him as a client. In May 1986, Weiss left the Rosen firm and became a partner in the Wilentz firm. Since joining that firm, Weiss has had no involvement in the tobacco cases nor has he ...


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