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Herbert v. Haytaian

July 25, 1996

BETH HERBERT, PLAINTIFF-APPELLANT,
v.
GARABED HAYTAIAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



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

Approved for Publication July 25, 1996.

Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Humphreys, J.A.D.

The opinion of the court was delivered by: Humphreys

The opinion of the court was delivered by

HUMPHREYS, J.A.D.

Plaintiff alleges that the defendant Garabed Haytaian ("Haytaian") sexually harassed her from July 1994 to October 1995 while he was Speaker of the New Jersey General Assembly and she was employed in the Assembly Majority Office. She seeks compensatory and punitive damages and other relief from the State and Haytaian.

In March 1993, Neil Mullin ("Mullin"), at the request of Haytaian, agreed to undertake an investigation of alleged sexual harassment of State employees in the bi-partisan State Office of Legislative Services ("OLS"). Judge Ferentz found that this undertaking created an appearance of impropriety and entered an order disqualifying Mullin and his law firm from representing the plaintiff in this action. We granted plaintiff's motion for leave to appeal.

Mullin contends that: (1) he never represented Haytaian or the New Jersey Assembly Majority Office; and (2) during the time of his alleged representation of the State, he did not and "temporally" could not have participated in or acquired confidential information about this case.

After thorough consideration of the record and the arguments of counsel, we conclude that under the Rules of Professional Conduct ("RPC") both an actual conflict of interest and an appearance of a conflict of interest are present. The order of disqualification is affirmed.

I.

In January 1993, defendant Haytaian was the Vice-Chairman of the New Jersey Legislative Services Commission ("Commission") in addition to his position as the Speaker of the New Jersey General Assembly. The Commission is the governing body of the OLS. The OLS is an agency of the Legislature which assists the Legislature in performing its functions. Haytaian also served as Chairman of the Budget and Personnel Committee ("Committee") of the Commission. The Committee has jurisdiction over OLS personnel matters.

In January 1993, Haytaian received an anonymous letter, allegedly from an OLS employee. According to the letter, a supervisory OLS employee was romantically involved with several women in the office resulting in problems for the other employees. The letter writer charged that there was "favoritism" and a "very hostile atmosphere" in the office. The letter writer stated that "someone may be able to sue the Legislature for allowing this to go on."

Barbara S. Hutcheon ("Hutcheon"), Chief Counsel for the New Jersey Assembly Majority Office, states the following in her certification. Haytaian directed her to retain outside counsel to conduct an investigation regarding the charges in the letter. On February 11, 1993, she contacted Mullin with respect to retaining his services as special counsel. She advised Mullin that, before she could discuss the matter with him, he would have to agree that the conversation would be confidential and protected by the attorney-client privilege; and that all "further Discussions" between Mullin and her, "or work performed by [Mullin]" would also be privileged. Mullin agreed and also agreed to conduct the investigation.

She told Mullin that he was to conduct an investigation into allegations of a hostile work environment and sexual harassment which had been directed to the attention of Haytaian, and that Mullin was to render legal advice to the Committee in order to safeguard its interests and the interests of Haytaian and the Legislature.

Thereafter she disclosed to Mullin both Haytaian's concerns and the concerns of the Committee regarding "the existence of the allegations and the need to respond to them." She explained to Mullin that Haytaian, who was not an attorney, had particular concerns. Specifically he was very concerned about the consequences of the allegation that a hostile work environment existed and about his duty and that of the Committee. She further disclosed to Mullin the Speaker's concerns regarding the need for outside counsel and the circumstances leading to the decision to hire outside counsel rather than proceeding in a different manner. Legal fees were also discussed.

By letter dated February 12, 1993, she forwarded to Mullin the anonymous letter and the subsequent correspondence between the Legislature and OLS. She also forwarded a copy of the Legislative Services Act of 1978, which established both the Commission and OLS, and a copy of the OLS staff directory. She thanked Mullin in the letter for "undertaking this matter."

She and Mullin discussed by telephone a number of other confidential matters including the specifics of the allegations and her views about their merits. They also discussed: (1) the identities of the parties involved; (2) the reasons why the Commission was hiring special counsel; (3) the proposed strategy devised by Haytaian and the Committee to deal with the matter including the persons involved in devising the strategy and the alternatives that were considered; and (4) the plans regarding how the Committee should handle such allegations including what steps it should take to prepare to handle such matters in the future.

On March 1, 1993, she spoke with Mullin again by telephone and sought his legal advice as to the legal obligations and duties of Haytaian and the Committee to investigate the anonymous allegations. Mullin advised her that, because of the gravity of the matter and the legal consequences of the failure to act, the Committee and Haytaian should conduct an investigation. She and Mullin also discussed "(1) the steps to be taken in starting the investigation, (2) the manner in which the interviews would be handled, and (3) what was to be disclosed regarding the nature of the investigation."

Mullin asked for written confirmation of his retention. A letter dated March 1, 1993 was sent to Mullin. Haytaian signed the letter in his capacity as Chair of the Committee. Haytaian said in the letter:

This letter will serve to confirm that you have agreed to undertake a matter on behalf of the Budget and Personnel Committee of the Legislative Services Commission, as previously outlined.

Hutcheon again spoke to Mullin to discuss the specific strategies that should be put in place to carry out the investigation, i.e., the timing of the interviews, the identity and number of witnesses to be interviewed, the preparation and the contents of the report and the results of the work.

Haytaian wrote a second letter to Mullin also dated March 1, 1993 in which Haytaian states: "This letter will serve to confirm that you have agreed to undertake the above-referenced matter on behalf of the Budget and Personnel Committee of the Legislative Services Commission on the following terms and conditions." One of the terms and conditions was that "this arrangement will be ratified by the full Legislative Services Commission at their next regularly scheduled meeting."

Haytaian asked Mullin in the letter to:

Please confirm your willingness to undertake the engagement of these terms by signing and returning the enclosed copy of this letter.

I am certain you recognize the importance of this matter and can appreciate the Legislature's desire to apply a prudent management ...


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