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FREEMAN v. VICCHIARELLI

June 24, 1993

FLOYD FREEMAN, Plaintiff,
v.
ANTHONY VICCHIARELLI, Defendant.



The opinion of the court was delivered by: JOEL B. ROSEN

 ROSEN, United States Magistrate Judge

 I. Procedural and Factual Background

 Mr. Freeman filed a complaint for malicious prosecution and infringement of his constitutional right to due process in the Atlantic County Superior Court on February 1, 1993. Mr. Vicchiarelli answered and removed the case to this Court pursuant to 28 U.S.C. §§ 1441 and 1446(d) on February 17, 1993. On March 1, 1993, Defendant filed the present motion to disqualify Plaintiff's counsel, Mr. Lands, on the grounds that Mr. Lands is a necessary witness at trial. This Court has jurisdiction to hear this case pursuant to 28 U.S.C. § 1331.

 There are significant disputes as to the facts of the case before me today. On January 23, 1990, Mr. Freeman was a passenger in an automobile that was involved in an accident on Route 30 in Atlantic City. After the accident, Mr. Vicchiarelli, a police officer employed by the City of Atlantic City, issued citations for four moving vehicle violations against Mr. Freeman. Later, on January 29, 1990, Officer Vicchiarelli issued a summons and citations for two moving vehicle violations against Mr. Tyrone Daniels, who Mr. Freeman contends was the operator of the vehicle in which he was riding.

 On March 22, 1991, Mr. Freeman appeared at the Atlantic City Municipal Court with Mr. Lands, his attorney then and his attorney in this action, where both participated in a probable cause hearing. Prior to the probable cause hearing, Mr. Lands had a conference with Officer Vicchiarelli and the Assistant Municipal Prosecutor, Ms. Martha Donovan; the substance of this meeting is the heart of Mr. Freeman's current complaint. Mr. Freeman alleges that during the pre-hearing conference, Assistant Prosecutor Donovan stated to Mr. Lands that the charges against Mr. Freeman were mistaken and would be dropped, but that Mr. Freeman must first complete a release form. Mr. Freeman refused to complete the form, which required him to admit that Officer Vicchiarelli had acted with probable cause in issuing the violations. Mr. Freeman further contends that Officer Vicchiarelli and Assistant Prosecutor Donovan threatened to initiate a probable cause hearing if Mr. Freeman would not sign the form. Finally, Mr. Freeman claims that because he continued to refuse to sign the form, Officer Vicchiarelli and Assistant Prosecutor Donovan initiated the probable cause hearing in an attempt to shield Officer Vicchiarelli from potential future liability. Mr. Freeman argues that the probable cause hearing constitutes malicious prosecution and an infringement of his constitutional right to due process. Mr. Freeman's only direct evidence of these claims are the alleged statements made during the conference between Officer Vicchiarelli, Assistant Prosecutor Donovan, and Mr. Lands, as witnessed by Mr. Lands; Mr. Freeman was not present at the conference.

 Officer Vicchiarelli denies Mr. Freeman's version of the pre-hearing conference and asserts that he and Assistant Prosecutor Donovan never stated in conference that the charges against Mr. Freeman were mistaken. Officer Vicchiarelli denies that he or Assistant Prosecutor Donovan conditioned dropping charges against Mr. Freeman on the completion of the form. Officer Vicchiarelli also denies that he made statements threatening to retaliate against Mr. Freeman with a probable cause hearing if he did not complete the form. The defense offers as evidence, inter alia, a deposed statement from Assistant Prosecutor Donovan contradicting Mr. Lands' version of the pre-hearing conference.

 II. Discussion of Law

 
A. Plaintiff's attorney should be disqualified because he is "likely to be a necessary witness" in contemplated litigation.

 General Rule 6A of the General Rules for the United States District Court Rules for the District of New Jersey (hereinafter General Rule 6A) provides that

 Because the United States District Court for the District of New Jersey follows the Rules of Professional Conduct as promulgated by the New Jersey Supreme Court, the construction given those rules by the New Jersey Supreme Court is controlling. See General Rule 6A, Comment 1. If the New Jersey Supreme Court has given no definitive interpretation of a particular ethical rule "the federal Court will proceed to reach its own conclusion as to the appropriate application of the Rules of Professional Conduct." Id.

 In this case, none of the arguments made by Plaintiff's attorney for the proper application of RPC 3.7 have been directly addressed by the New Jersey Supreme Court. In reaching my decision in this case, I will try to harmonize my reading of RPC 3.7 with decisions by the New Jersey Supreme Court and by the United States District Court for the District of New Jersey regarding the application of prior ...


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