revealed could put the plaintiff at a disadvantage or the other
party at an advantage." Based on the certifications from the
parties and testimony during the evidentiary hearing, Magistrate
Judge Chesler accurately concluded that confidential information
was communicated by Kohn to Weeks during the period in question
and that the information communicated would give one party an
advantage over another. His determination that confidential
information was communicated is supported by the record and is
certainly not clearly erroneous. His limitation of
cross-examination was designed only to avoid full disclosure on
the record of the information he had found to be confidential.
Plaintiff also raises a waiver of privilege argument, claiming
that by recently filing a malpractice action against Weeks in
state court, Kohn has waived the privileged nature of her
communications to Weeks. Plaintiff's argument is a non sequitur
and reflects a misunderstanding of either Magistrate Judge
Chesler's decision or of the attorney-client privilege in
general. First, Magistrate Judge Chesler's decision did not turn
on whether the attorney-client privilege endures. Rather, it
turned on the fact that because an attorney-client relationship
existed, and because confidences were communicated by client to
attorney, Weeks is barred by the RPCs from representing the
Academy in a matter adverse to Kohn's interests concerning the
same subject matter. It is the fact of the representation that
creates the conflict. Second, the "self-defense" exception to the
attorney-client privilege is wholly inapplicable to the present
matter. The exception allows counsel to waive a client's
privilege when necessary in order to defend herself against
accusations of wrongful conduct. See George v. Siemens Indus.
Automation, Inc., 182 F.R.D. 134, 139 (D.N.J. 1998). The
exception applies only to the action filed by the client against
the attorney. Weeks is not defending herself in the present
matter. Invocation of the self-defense exception to the
attorney-client privilege is unwarranted.
3. "Subjective" Relationship
Plaintiff argues that the Magistrate Judge erred by finding
that an implied attorney client relationship existed based on
Kohn's "subjective view." Magistrate Judge Chasler made no such
finding. Rather, as discussed above, based on his evidentiary
findings, Magistrate Judge Chesler specifically determined that
Kohn's belief that Weeks was her attorney was reasonable.
Reasonable belief is the proper legal standard for assessing
whether an implied attorney-client relationship existed. See
Sheinkopf v. Stone, 927 F.2d 1259, 1265 (1st Cir. 1991).
Magistrate Judge Chesler's determination was not contrary to law.
4. "Generally Known" Information & "Waiver"
Plaintiff argues that the Magistrate Judge erred in finding
that Kohn communicated private and confidential information to
Weeks. Plaintiff argues first that any information communicated
by Kohn has since become "generally known" or that the
attorney-client privilege has been waived. As discussed above,
such arguments are immaterial to whether an attorney-client
relationship existed between. Weeks and Kohn for the period of
June 28 to July 8, 1996 and whether privileged information was
Plaintiff further argues that defendant waived the right to
disqualify Weeks by felling for two years to assert that a
conflict of interest existed in Weeks' representation of the
Academy in its lawsuit against Kohn. However, the cases in which
an undue delay was deemed to be a waiver of the conflict
objection involved parties seeking to disqualify an attorney long
after the litigation was commenced. See Alexander v. Primerica
Holdings, Inc., 822 F. Supp. 1099, 1115-16 (D.N.J.1993) (motion
to disqualify counsel made more than three years into case
what plaintiff knew from the time complaint was filed of
counsel's alleged conflicts); Commonwealth Ins. Co. v. Graphix
Hot Line, Inc., 808 F. Supp. 1200, 1208-09 (E.D.Pa.
1992) (two-year delay); Trust Corp. of Montana v. Piper Aircraft
Corp., 701 F.2d 85, 87-88 (9th Cir.1983) (two-and-one-half year
delay); Central Milk Producers Co-op. v. Sentry Food Stores,
Inc., 573 F.2d 988, 992 (8th Cir.1978) (over two-year delay); In
re Zimmerman, 81 B.R. 296, 300-01 (E.D.Pa.1987) (almost
three-year delay); Warpar Mfg. Corp. v. Ashland Oil, Inc.,
606 F. Supp. 852, 858-59 (N.D.Oh.1984) (delay of one year and nine
months); Glover v. Libman, 578 F. Supp. 748, 767 (N.D.Ga.
1983) (delay of thirteen months); Jackson v. J.C. Penney Co.,
Inc., 521 F. Supp. 1032, 1034-35 (N.D.Ga.1981) (delay of fifteen
months). Kohn's motion to disqualify plaintiff's counsel was made
less than three months after the suit was filed and soon after
defendants filed their answer to the complaint. During the
two-year "delay" asserted by plaintiff, there was no lawsuit to
which Kohn could object. Kohn had no practical forum in which to
assert Weeks' conflict of interest before she actually became the
target of plaintiff's lawsuit. The three-month time from filing
of the lawsuit to filing of the disqualification motion does not
approach the magnitude of delay required by the case law to find
a waiver of the objection.
5. Judicial Estoppel
Plaintiff claims that the Magistrate Judge erred by failing to
find that Kohn demonstrated bad faith by arguing alternatively
that Weeks was solely her personal lawyer during the June 28 to
July 8, 1996 period and that Weeks undertook dual representation.
The Magistrate Judge rejected plaintiff's argument that Kohn
should have been judicially estopped from asserting differing
theories. Magistrate Judge Chesler correctly noted in his opinion
rejecting plaintiff's motion for reargument that judicial
estoppel is an extraordinary remedy that is only rarely to be
invoked when other sanctions will not suffice. Under either the
dual-representation or the purely-personal theory, the relevant
facts determined by the Magistrate Judge are that Weeks and Kohn
had an attorney-client relationship during the period in question
and that confidential communications were made by Kohn to Weeks
in reasonable reliance on that relationship. Thus, plaintiff can
demonstrate nothing in the allegedly inconsistent theories that
could constitute playing fast and loose with the courts and
warrant invoking judicial estoppel.
6. Appearance of Impropriety
Plaintiff argues that Magistrate Judge Chesler improperly
disqualified Weeks from representing the Academy because he found
an appearance of impropriety under RPC 1.7(c)(2). Plaintiff has
misread the Magistrate Judge's opinion. Magistrate Judge Chesler
never mentioned RPC 1.7(c)(2) or the "appearance of impropriety"
standard in either his opinion disqualifying Weeks or in his
opinion denying plaintiff's motion for reargument.
7. Factual Determinations
Plaintiff asserts that the Magistrate Judge's determination of
the facts at issue in the disqualification motion were clearly
erroneous. In support of that argument, plaintiff has provided
the Court with multiple certifications from Weeks offering a
differing interpretation of the facts. These certifications
include selections from the testimony elicited at the evidentiary
hearing conducted by Magistrate Judge Chesler and offer Weeks'
own interpretation of that testimony as an alternative to the
fact-finding performed by the Magistrate Judge. The Court has
reviewed all of the materials in the record. It also has
carefully reviewed Magistrate Judge Chesler's determinations as
to the facts and considered his first-hand assessment of the
credibility of the witnesses who testified before him. The Court
finds that Magistrate
Judge Chesler's factual determinations were not clearly
8. FRCP 60(b)/L. Civ. R. 83.3 Motion
Concurrent with the appeal of the Magistrate Judge's order
disqualifying Weeks as counsel for the Academy, plaintiff has
filed a motion styled as "Motion to Vacate" the Magistrate
Judge's order pursuant to FRCP 60(b) and Local Civil Rule 83.3.
As a preliminary matter, the Court believes that the plaintiff
should have made any motion to vacate the Magistrate Judge's
Order before the Magistrate Judge himself.
FRCP 60(b) allows the Court to provide relief from an Order to
avoid mistake, to combat fraud or misconduct, in the event of
"newly discovered evidence which by due diligence could not have
been discovered," and for "any other reason justifying relief."
See Fed.R.Civ.P. 60(b). Local Civil Rule 83.3 allows the Court
to "proceed in any lawful manner" in order to serve justices and
fairness "in the absence of any governing rule and/or if no
procedure is especially prescribed." See L. Civ. R. 83.3.
Additionally, plaintiff argues that Local Civil Rule 83.2 allows
the Court to consider new evidence not part of the Magistrate
Judge's record when considering such a motion. See L. Civ. R.
83.2. Alternatively, plaintiff urges that this Court could act
pursuant to Local Civil Rule 83.1 and Rule 10(c) of the Federal
Rules of Appellate Procedure to reopen consideration of the issue
and to supplement the record with additional certifications from
Plaintiff had a full opportunity before the Magistrate Judge to
oppose defendant's motion to disqualify Weeks. Plaintiff
submitted a memorandum of law and certifications of factual
matters to the Court. The Magistrate Judge heard oral arguments
from both sides and conducted an evidentiary hearing. Plaintiff
also made a motion for reargument before the Magistrate Judge,
which was supported by memoranda of law and certifications of
facts. Plaintiff has appealed the Magistrate Judge's decision to
this Court and has likewise submitted memoranda of law and
multiple certifications of facts in support, This Court has fully
reviewed all the materials in the record. Plaintiff has presented
no new evidence in conjunction with its motion to vacate that was
not available to it previously. The Court is satisfied that the
plaintiff has had its day in court on the attorney
disqualification issue and sees no reason to reopen the record or
to vacate the order. Accordingly, the Court will deny plaintiff's
motion to vacate the Magistrate Judge's order.
After having reviewed Magistrate Judge Chesler's opinion and
all materials in the record, the Court is satisfied that the
Magistrate Judge's determinations that an attorney-client
relationship existed between Weeks and Kohn and that Kohn
communicated confidential information to Weeks in reasonable
reliance on that relationship were not clearly erroneous. The
Court also finds that Magistrate Judge Chesler's determination
that the RPCs and case law require Weeks to be disqualified as
plaintiff's counsel was not contrary to law.
Accordingly, IT IS on this 30th day of December 1999
ORDERED that Magistrate Judge Chesler's May 24, 1999 order
disqualifying Diane K. Weeks as plaintiff's counsel is hereby
affirmed and plaintiff's motion to vacate the order is denied.
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