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ESSEX COUNTY JAIL ANNEX INMATES v. TREFFINGER

August 17, 1998

ESSEX COUNTY JAIL ANNEX INMATES et al., Plaintiffs, - v - JAMES W. TREFFINGER et al., Defendants. ESSEX COUNTY JAIL INMATES et al., Plaintiffs, - v - JAMES W. TREFFINGER et al., Defendants.


The opinion of the court was delivered by: ACKERMAN

OPINION

 ACKERMAN, District Judge:

 I. INTRODUCTION

 This matter comes before the court on the defendants' motion to disqualify the plaintiffs' counsel, Susan Remis Silver, Esq., for alleged violations of the New Jersey Rules of Professional Conduct ("RPC"). The plaintiffs in these consolidated class action lawsuits are inmates at the Essex County Jail and Jail Annex. At the heart of this matter are very serious allegations that Ms. Silver, in her capacity as the plaintiffs' principal attorney, provided security sensitive information concerning specific staffing deficiencies at the Jail Annex to eight inmate representatives. This information was contained in a detailed memorandum which pointed out specific staffing deficiencies for each day over a span of fifty-three days. In addition, after she had assured this court that she recognized the very important security concerns at the jail facilities, Ms. Silver provided an inmate with information concerning the date and time of his outside medical appointment. As will be discussed more fully below, these acts on the part of Ms. Silver were serious breaches of security at the Jail Annex. At best, these acts manifest Ms. Silver's utter lack of awareness and appreciation of the sensitive position she occupies in this litigation as the principal attorney for inmates at the Jail and Jail Annex. This court concludes that Ms. Silver's continued representation of the plaintiffs in these cases will impugn the integrity of these proceedings, and thus, the defendants' motion to disqualify her is hereby granted.

 The two underlying class action lawsuits captioned above were filed on behalf of the inmates of the Essex County Jail and Jail Annex and allege that the conditions of confinement are unconstitutional. Each case was settled, and many aspects of jail operations have been governed by a series of consent orders. Since the initiation of these lawsuits, the plaintiffs have been represented by the State of New Jersey's Inmate Advocacy Unit. *fn1" Ms. Silver is the present Director of the Inmate Advocacy Unit and has been the principal attorney representing the plaintiffs in these cases since 1993.

 On January 30, 1996, the defendants filed a notice of motion to disqualify Ms. Silver from further representation of the plaintiffs based on alleged violations of the New Jersey Rules of Professional Conduct. This court referred the defendants' motion to the Special Masters in this case, Bennet D. Zurofsky, Esq., and Frederic K. Becker, Esq. In a Report and Recommendation dated May 14, 1996, the Special Masters found, among other things, that although "there are facts which could support the argument that RPC 4.1(a)(1) and RPC 8.4(c) were both violated," Report and Recommendation, at 22, the defendants had nonetheless failed to demonstrate that Ms. Silver should be disqualified in this matter. Therefore, the Special Masters recommended that the defendants' motion be denied.

 Subsequently, the plaintiffs, represented by the Office of the Public Defender, filed papers urging this court to affirm the Special Masters' conclusion that the defendants' disqualification motion be denied. The plaintiffs also objected to that portion of the Special Masters' report that concluded, at least implicitly, that Ms. Silver had violated RPC 4.1 and RPC 8.4. The plaintiffs argued that I should affirmatively find that Ms. Silver did not violate those rules.

 The defendants opposed the plaintiffs' request for an affirmative finding that Ms. Silver did not violate RPC 4.1 and RPC 8.4. In addition, the defendants renewed their arguments in support of the motion to disqualify Ms. Silver. *fn2" After reviewing the Report and Recommendation, as well as the entire record relied upon by the Special Masters in deciding the motion, this court held a hearing on April 17 and 18, 1997 pursuant to Federal Rule of Civil Procedure 53(e) to determine whether to accept, reverse, accept in part, or reverse in part the Special Masters' recommendation. *fn3" Subsequent to the April, 1997 hearing, the defendants filed supplemental papers, in which they apprised the court of another incident in which Ms. Silver allegedly breached security measures at the jail facilities. After another round of briefing was permitted as to whether and in what manner this latest incident affected the disqualification motion, this court held another hearing on March 31, 1998 to address the issue.

 This court has carefully reviewed all of the affidavits, certifications, and briefs submitted on this matter. This court also held two hearings in which it had an opportunity to hear testimony from various witnesses. Furthermore, this court has scrupulously reviewed the Special Masters' Report and Recommendation. Based on this extensive review of the record, and in view of the sensitive nature of this litigation, this court is compelled to disqualify Ms. Silver as the plaintiffs' counsel in this case.

 II. STANDARD OF REVIEW

 Federal Rule of Civil Procedure 53(e) specifies that in non-jury actions which have been referred to a special master,

 
the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.

 Pursuant to this rule, it is well established that a special master's findings of fact will not be disturbed unless they are clearly erroneous. A finding of fact is clearly erroneous "'when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Dome Petroleum Ltd. v. Employers Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J. 1990) (reviewing decision of United States Magistrate) (quoting United States v. Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948)). However, a court must review a special master's conclusions of law under the de novo standard. See Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st Cir. 1992).

 III. BACKGROUND

 The approximate inmate population at the Essex County Jail Annex in North Caldwell, New Jersey is between 1,300 and 1,400. The approximate number of corrections officers on duty at any given time is between 60 and 80. None of the corrections officers on duty carries a firearm of any sort. Inmates are not restrained by handcuffs or the like for significant periods of the day, and they are not separated from corrections officers by any barriers. Inmates are grouped together and housed in tiers or wings.

 The procedures adopted at the Essex County Jail and the Jail Annex are geared towards maximizing security. Corrections officers at the Jail Annex are assigned to either custodial supervision or support operation. Each officer assigned to custodial supervision occupies a fixed post and oversees a group of inmates. Officers assigned to support operations do not occupy any fixed position, but rather provide relief to those assigned to custodial supervision and remain available to respond to emergencies which may arise from time to time. Because the support operation officers are not deployed to a fixed post, an inmate is generally incapable of discerning through personal observation the number of relief officers on duty at any given time. The defendants have described the salient effect of this procedure as a "carefully-cultivated uncertainty," which seeks to deter inmate misbehavior--attacks on other inmates or officers and escapes--by keeping them unsure as to when and where corrections officers may be in the vicinity. Moreover, while the inmate groups remain together for meals and recreation, inter-group communication is restricted to the greatest extent possible.

 To maintain this "carefully-cultivated uncertainty," strict confidentiality of corrections officer scheduling information is required. Such schedules are prepared in the Central Scheduling Office and distributed only to the warden of the facility and the shift commanders.

 Ms. Silver, in her capacity as the inmates' principal attorney in this litigation, authored a memorandum addressed ostensibly to the Special Masters, Lisa Martinez Wolmart, and all counsel, entitled "Officer Staffing Shortages that Result in the Inadequate Supervision of Inmates," which concerned the issue of officer staffing. The first paragraph of the memorandum succinctly describes its purpose:

 
I have prepared a chart based on the Officer Staffing Schedules at the Essex County Jail Annex. This chart demonstrates that there is a continuing problem with officer staffing shortages. The result is that tiers of inmates are left without any officer supervision for periods of time each day.

 The memorandum consists of slightly over twelve single-spaced pages detailing numerous instances of staffing deficiencies. The memorandum provides in some detail the perceived deficiencies of officer staffing at the Jail Annex for each day between August 1, 1995 and September 22, 1995. Even a cursory review of this memorandum reveals that it contains quite sensitive information. *fn4" Although not indicated in the memorandum itself, Ms. Silver sent copies of this memorandum to eight inmate representatives under a cover letter dated September 29, 1995.

 In a letter dated October 11, 1995, Ms. Silver admitted that she obtained the officer staffing schedules, which formed the basis of her memorandum, from a corrections officer outside of the normal discovery process. She would not, however, identify the corrections officer, although she did say that the officer had keys to the building where the schedules were maintained. After receiving the letter, the county retained independent counsel to investigate the circumstances surrounding Ms. Silver's acquisition of confidential staffing information. Based upon this investigation, the county concluded that Ms. Silver had obtained the staffing schedules from Corrections Officer Michael DeMeo, an employee of the county and the President of the Policeman's Benevolent Association ("PBA"), Local 157. The PBA office is located in the same administrative building in which the schedules were located. Corrections Officer DeMeo did not have authorized access to the schedules.

 On December 6 or 7, 1995, Ms. Silver spoke by telephone to Martin Hellwig, the Essex County Director of Public Safety. Although Mr. Hellwig and Ms. Silver agreed that the conversation did take place and that the issue of the staffing schedules was discussed, they provided slightly different versions of other aspects of the telephone conversation in their respective certifications submitted to the Special Masters. In his certification, Mr. Hellwig described the event as follows in relevant part:

 
2. On or around December 7, 1995, I received a telephone call from Ms. Silver who wished to discuss the handling of inmates' incoming correspondence.
 
3. Unbeknownst to Ms. Silver, at the time of our conversation, I had before me a copy of her September 29, 1995 cover letter to eight inmates under which she enclosed a copy of a detailed memorandum also dated September 29, 1995 and purporting to highlight alleged custodial corrections officers staffing shortages. At the time of my conversation with Ms. Silver, however, I did not have copies of the scheduling memorandum which Ms. Silver provided to the eight inmates.
 
4. During our conversation, Ms. Silver assured, in response to my direct inquiry, that she had not provided any scheduling information to inmates. From the cover letter to inmates which I had before me, I knew that Ms. Silver's statements were false.
 
5. A day or two after our telephone conversation, Ms. Silver met with some of her clients at the Essex County Jail Annex in North Caldwell. Apparently, Ms. Silver learned during her meetings that the County was aware that she had provided scheduling information to inmates. Later that day, Ms. Silver visited my office in person and attempted to justify her false statements of the previous day. Ms. Silver took the position that all information set forth in her September 29, 1995 scheduling memorandum already was in possession of the inmates. She characterized the scheduling memorandum as having only the most "general" information. At the time of this conversation, I still did not have in my possession nor had I reviewed a copy of Ms. Silver's scheduling memorandum.
 
6. After my second conversation with Ms. Silver, I reviewed a copy of the scheduling memorandum which she sent to eight inmates. The information is not "general" as Ms. Silver claimed. Rather, the information is quite detailed, specifying such things as when and where relief officers are deployed. This most certainly is not the type of information an inmate could glean through personal observation. I believe Ms. Silver's characterization of the scheduling information was deliberately misleading.

 Certification of Martin Hellwig, January 23, 1996.

 Ms. Silver's version of events is as follows in relevant part:

 
9. With respect to Martin Hellwig's certification submitted in support of the County's motion, Mr. Hellwig states that "on or around December 7, 1995, I received a telephone call from Ms. Silver who wished to discuss the handling of inmates' incoming correspondence." (Hellwig Certification, para. 2).
 
10. Mr. Hellwig and I did not speak with each other on December 7, 1996 [ sic ]. We did have a telephone conversation on Wednesday, December 6, 1996 [ sic ], but at no point in time did we "discuss the handling of inmates' incoming correspondence."
 
11. My call to Mr. Hellwig on December 6, 1995, had absolutely no bearing on the issues before the Court that relate to either the plaintiffs' pending contempt application or to the issues that would later form the basis for the motion that I filed on December 21, 1995 for an order to protect inmates' rights to confidential attorney communications.
 
12. During my telephone conversation with Mr. Hellwig on December 6, 1995, he asked me the following question: "Did you ever send inmates copies of the Officer Staffing Schedules?"
 
13. I have never sent any Officer Staffing Schedules to inmates, and I answered Mr. Hellwig truthfully when I told him, "No, I have not." I also told Mr. Hellwig that I never would send Officer Staffing Schedules to the inmates.
 
14. I remember Mr. Hellwig's specific question, because I remember thinking that the way Mr. Hellwig asked me the question, I could answer the question narrowly but truthfully.
 
15. Mr. Hellwig is incorrect when he states that I "assured [him] in response to [his] direct inquiry, that [I] had not provided any scheduling information to inmates." (Hellwig Certification, para. 4). Mr. Hellwig never asked me any general question about "scheduling information." He only had asked me the specific question about whether I had sent Officer Staffing Schedules to the inmates.
 
16. I did not provide information to Mr. Hellwig about the substance of my correspondence with my clients on officer staffing since this correspondence is an attorney/client privileged communication on an issue that is before this Court as part of the plaintiffs' contempt application.
 
17. Mr. Hellwig also told me in our telephone conversation on December 6, 1995, that something had just come across his desk that day that he found "shocking" and that the information involved me. I asked him to explain.
 
18. Mr. Hellwig told me that he did not feel comfortable telling me about it over the telephone, but he would be happy to discuss the matter with me in person.
 
19. I told Mr. Hellwig that I had plans to see the inmate representative committees at both the Essex County Jail and the Essex County Jail Annex on Friday, December 8, 1996 [ sic ].
 
20. Mr. Hellwig told me that after I finished meeting with both Inmate Committees, I should come to his office and we would talk again. I again tried to press Mr. Hellwig to tell me what had happened that was causing him concern, but Mr. Hellwig would only tell me that we would talk when we met on Friday.
 
* * *
 
22. When I had finished meeting with the Inmate Representatives at the ECJ [on the morning of December 8, 1995], I saw Mr. Hellwig in the ECJ sally port as he was leaving. Mr. Hellwig came over to me and told me that when I went to the ECJA that afternoon, I should make certain that I spoke to Emma Hunter about an incident that recently happened. He again said that I should come talk with him at his office after I spoke with Ms. Hunter and the other inmate representatives. . . .
 
23. When Emma Hunter, the Inmate Representative for Satellite 2, arrived at the Inmate Representative Committee meeting on December 8, 1995, she told me that the day before, Sergeant Vitiello from the Internal Affairs Unit at the ECJA confiscated all of her correspondence from me. . . .
 
24. When I saw Martin Hellwig in his office immediately after the Inmate Representative's meeting, I told him that I was very upset that the jail had confiscated all of my privileged attorney correspondence from my client, Emma Hunter.
 
25. At that point, Mr. Hellwig told me that he had a copy of the September 29, 1995 letter that I had sent to Ms. Hunter and the other inmate representatives at the ECJA. Mr. Hellwig told me that he had read the letter and that it made reference to an officer staffing memorandum that I had attached to the letter. Mr. Hellwig again asked me if I had ever sent Officer Staffing Schedules to the inmates.
 
26. I again told Mr. Hellwig that I did not send Officer Staffing Schedules to the inmates, but I had sent them a memorandum I prepared that summarized the officer staffing problems that occurred over a 6 week period of time in the summer. I explained that officer staffing is a legitimate concern of the plaintiffs' [ sic ] because officer shortages endanger the physical safety of inmates.
 
27. I told Mr. Hellwig that at the time that I prepared the cover letter and memorandum, I had no idea that the County did not want me to discuss officer staffing problems with my clients. I told Mr. Hellwig that the first time I learned of the County's concern was when we met at the ECJA with the Special Masters, and Ron Manzella [Director of Corrections for the County of Essex] was very upset that I had obtained the officer staffing information and included it in a memo that I had sent the attorneys and the Special Masters. This meeting at the ECJA occurred on October 6, 1995.
 
28. I explained to Mr. Hellwig that once I learned of the County's concern, I returned to my office, and asked my secretary to remove the officer staffing memorandum from the package of material that I was sending the inmate representatives. My secretary told me that she had just sent the packages out. The letters were mailed to the inmate representatives either on October 5, 1995 or October 6, 1995.
 
29. I also told Mr. Hellwig that I decided that I would ask the inmate representatives to return the officer staffing memoranda to me, but the ECJA had started a new practice of insisting that officers sit in on my inmate representative meetings, and I was unable to meet with my clients confidentially to ask them to return the officer staffing memos.
 
30. I told Mr. Hellwig on December 8, 1995, that now that I know what the County's concerns are, I had no problem accommodating the County's request that I not share officer staffing information with inmates. However, I told Mr. Hellwig that the officer staffing information that I sent to the inmates was not current information, and the inmates know even more about the officer staffing problems that the information reflected in either my memorandum or in the Officer Staffing Schedules themselves.
 
31. I told Mr. Hellwig that there was absolutely no indication that the information in the officer staffing memorandum had any adverse effect on security at the ECJA.
 
32. Mr. Hellwig agreed. He told me that there was no indication that the information in the officer staffing memorandum was tied in any way to the recent escapes at the ECJA, and his concern was about the potential for security problems.
 
33. Mr. Hellwig told me that he actually did not have the officer staffing memorandum that I attached to my September 29, 1995 letter to the Inmate Representatives. However, Mr. Hellwig stated that as long as the information that I put in the officer staffing memorandum was general in nature, he was sure there was no harm done.
 
34. I did not make any comment on Mr. Hellwig's characterization of my officer staffing memorandum. At no point did I characterize the scheduling memorandum "as having only the most general information" as Mr. Hellwig now claims. (Hellwig Certification, paras. 5 and 6). This was Mr. Hellwig's characterization, not mine.
 
35. I have no idea what Mr. Hellwig means when he states that during my meeting with him, I tried to "justify" my false statements of the previous day. (Hellwig Certification, para. 5). I have never made any false statements to Mr. Hellwig.

 Certification of Susan R. Silver, February 26, 1996 (emphasis in original).

 The Special Masters did not hold a hearing, and thus, they did not resolve which version of events was true. This court did hold a hearing on April 17 and 18, 1997 in which Mr. Hellwig and Ms. Silver, among others, testified. At the hearing, Mr. Hellwig testified that he was aware of the difference between "officer staffing schedules" and "officer staffing information":

 
Q. Now, when, Mr. Hellwig, when you spoke on the telephone with Susan Silver, and I believe the date was December 6th, although in your affidavit or your certification you indicate it was December 7th, whatever the date was, December 6th or 7th, when you spoke with Miss Silver you had in front of you the letter that she had sent, the two page letter that she had sent to the inmate reps. Isn't that correct?
 
A. That is correct.
 
Q. And that letter indicated that she had provided the inmate reps with the officer staffing analysis or the officer staffing memorandum. Isn't that correct?
 
A. Yes.
 
Q. And she specifically referred to it as an officer staffing memorandum and you knew it as an officer staffing memorandum. Isn't that correct?
 
A. Yes.
 
Q. And isn't that -- isn't that in your mind, as well as in -- well, isn't that in your mind, Mr. Hellwig, distinct from an officer staffing schedule?
 
A. Yes, it is.
 
Q. What is the difference?
 
A. Well, the schedules themselves are -- capture a moment in time, an eight hour period, 24 hour period. . . . The memorandum that was written captured an extended period of time, I believe in excess of 60 days.

 Testimony of Martin Hellwig, April 17, 1997 at 1.79-80.

 Mr. Hellwig's testimony also revealed that he asked specifically about "officer staffing schedules," rather than general staffing information:

 
Q. But you say that at some point during the conversation you asked her the question did she provide scheduling -- schedules to her clients. Is that correct?
 
A. Yes.
 
Q. And her answer was what?
 
A. No, she would not do that.
 
Q. And that's the truth, ...

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