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GREIG v. MACY'S NORTHEAST

February 19, 1998

G. JEANINE GREIG, Plaintiff,
v.
MACY'S NORTHEAST, INC., et al., Defendants.



The opinion of the court was delivered by: WOLFSON

AMENDED MEMORANDUM OF NOVEMBER 10, 1997

 WOLFSON, UNITED STATES MAGISTRATE JUDGE

 Before the court is the motion by pro se plaintiff, G. Jeanine Greig ("Greig"), to compel the disqualification and withdrawal of the law firm, Amdur, Boyle & Maggs (the "Amdur firm"), and its attorneys from representing defendant, A. Kenneth Weiner, Esq. ("Weiner"). The court has reviewed the moving and opposition papers, and considers this matter pursuant to Fed. R. Civ. P. 78. For the following reasons, plaintiff's motion is granted and, further, the Amdur firm is disqualified from continuing as legal counsel for defendants, Macy's Northeast, Inc., Macy's East, Inc., Macy's Northeast Properties, Inc., and Macy's Specialty Stores, Inc., ("Macy's").

 Background

 Plaintiff retained the firm of A. Kenneth Weiner, Esq. in January of 1995, to represent her in connection with her allegedly being wrongfully targeted as a shoplifter while a public invitee in Macy's Department Store. On March 7, 1995, Weiner filed a complaint on behalf of plaintiff, asserting, inter alia, claims of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000, against Macy's and various unnamed corporate and individual defendants. By October of 1996, after approximately a year and a half of representation, serious differences of opinion in connection with the case's value and its proper prosecution had developed between Greig and Weiner. Weiner made application to the court for leave to withdraw as counsel on October 22, 1996. After determining that the attorney-client relationship had deteriorated to the extent that it would negatively impact the firm's continued representation of Greig, the court granted counsel's motion for withdrawal. On July 7, 1997, Greig filed an amended complaint asserting a claim of malpractice against Weiner in connection with his representation of her in the pending action against Macy's and various unnamed defendants. The added claim against Weiner was brought in this civil rights action pursuant to the entire controversy doctrine. *fn1"

 Weiner's malpractice carrier retained Richard A. Amdur, Esq. of the Amdur firm to represent him in this malpractice action. *fn2" Defendants, Macy's, were already being represented by Marguerite A. Maggs, Esq. of the Amdur firm. It is plaintiff's contention that the Amdur firm's representation of her former attorney on the malpractice claim constitutes a conflict of interest under New Jersey's Rules of Professional Conduct, that it creates an "appearance of impropriety" and that the firm's withdrawal as counsel for Weiner should be compelled. The Amdur firm contends that there is no conflict in representing two defendants against a common plaintiff and that the only attorney who owed Greig a duty of confidentiality, Weiner, is now relieved of that duty by virtue of his need to defend himself against the charges of malpractice which Greig has asserted against him.

 Discussion

 The conduct of attorneys admitted to practice before this court is governed by the American Bar Association's Rules of Professional Conduct, as revised and adopted by the New Jersey Supreme Court. Allyn Z. Lite, New Jersey Federal Practice Rules, 1997 Edition, Rule 6 at 35. These Rules of Professional Conduct impose a duty of confidentiality upon attorneys in connection with information obtained as a result of representation of their clients. RPC 1.6 states in pertinent part:

 
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out representation, and except as stated in paragraphs (a) and (c). . . .
 
(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: . . .
 
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based upon the conduct in which the client was involved; . . .

 The Supreme Court of New Jersey has frequently emphasized the importance of this duty of confidentiality and that it is "basic to the legitimate practice of law." Dewey v. R.J. Reynolds Tobacco Company, 109 N.J. 201, 217, 536 A.2d 243 (1988)(quoting Reardon v. Marlayne, 83 N.J. 460, 470, 416 A.2d 852 (1980)). Nonetheless, the Rules of Professional Conduct do imbue a lawyer with the discretion to avoid his duty of confidentiality where such avoidance is necessary to defend himself against charges asserted by his client. The New Jersey Supreme Court has recently reiterated that, "Those Rules state that a lawyer sued for malpractice is obligated to reveal privileged communications only to the extent necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Olds v. Donnelly, 150 N.J. 424, 441, 696 A.2d 633 (1997)(emphasis added).

 The Rules of Professional Conduct also prohibit a lawyer from representing a client where that representation would create an appearance of ...


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