The opinion of the court was delivered by: Claire C. Cecchi United States Magistrate Judge
This matter comes before the Court by way of Defendants' motion to disqualify the law firm of Bisceglie & DeMarco, LLC ("Bisceglie & DeMarco"), as counsel for Plaintiffs in this matter. Plaintiffs opposed the motion. William J. DeMarco, Esq. is the attorney whose role forms the basis for Defendants' disqualification motion. Subsequent to the filing of Defendants' application, Mr. DeMarco passed away. For the reasons expressed below, and for those expressed during oral argument, Defendants' motion is DENIED.
The first litigation involving the dispute upon which this suit is based was filed in September 1999 in the New Jersey Superior Court, Law Division for Passaic County (the "State Court Action"). The State Court Action was brought by Angelo Bisceglie, Esq. and his then law firm of Bisceglie & Friedman, LLC ("Bisceglie & Friedman") on behalf of Plaintiffs Lawrence Russo and William Villari. Peter Ryerson was named as a defendant in the State Court Action, along with Passaic County and several of its governing agencies (the "Passaic County Defendants").
Mr. Ryerson retained William J. DeMarco, Esq., then a sole practitioner, to represent him in connection with the State Court Action. From the record, it appears as though Mr. DeMarco's representation of Defendant Ryerson was relatively brief, as the State Court Action was dismissed without prejudice shortly after its inception when Passaic County agreed to hire an outside investigator to investigate the Plaintiffs' claims.*fn1
On October 14, 2001, nearly two years after the State Court Action was dismissed, Mr. Bisceglie and the law firm then known as Bisceglie & Friedman filed the instant suit before this Court. In this suit, Plaintiffs Russo and Villari assert claims against Mr. Ryerson and the Passaic County Defendants which are based on the same or similar allegations previously made in the State Court Action. As discussed, at the time the suit was filed Mr. Bisgelie was associated with the law firm known as Bisceglie & Friedman. However, on March 1, 2006, that firm dissolved and Mr. Bisceglie and Mr. DeMarco formed the law firm of Bisceglie & DeMarco. The new entity Bisceglie & DeMarco then became counsel of record for Plaintiffs in this matter.
After the formation of Bisceglie & DeMarco, the Passaic County Defendants petitioned the Court for an order disqualifying Bisceglie & DeMarco from continuing to represent the Plaintiffs in this matter. The Passaic County Defendants claim that, in light of Mr. DeMarco's representation of Defendant Ryerson in the State Court Action, a conflict was created under New Jersey Rule of Professional Conduct 1.9 when Mr. Bisceglie and Mr. DeMarco joined together to form their current law firm that precludes the continued representation of Plaintiffs by Bisceglie & DeMarco.*fn2
Plaintiffs oppose Defendants' motion, claiming that, on balance, disqualification is not warranted. Plaintiffs make several arguments in their opposition. First, Plaintiffs contend that Mr. DeMarco's representation of Mr. Ryerson was brief and for a limited purpose, being largely confined to the preparation of Mr. Ryerson's Certification which later became public. Plaintiffs assert that Mr. DeMarco had no recollection of and did not retain any files pertaining to the State Court Action at the time the law firm of Bisceglie & DeMarco was formed. Plaintiffs also contend that Defendant Ryerson's daughter was present during all meetings between Mr. DeMarco and Mr. Ryerson, thus destroying any attorney-client privilege which may have existed. As a result, Plaintiffs contend that no confidences were exchanged between Defendant Ryerson and Mr. DeMarco in the course of the State Court Action.
Second, Plaintiffs argue that the timing of the instant motion warrants against disqualification. Plaintiffs urge the Court to consider that the motion was filed a mere twelve days before trial, that all discovery in this matter was complete at the time of filing and that summary judgment had already been decided by the time Bisceglie & DeMarco was formed. Plaintiffs assert that these factors also mitigate against a finding that disqualification is appropriate.
As stated above, since the filing of Defendants' motion, new facts have transpired which alter the landscape of this litigation. Mr. DeMarco passed away on September 4, 2007. Mr. Bisceglie's law firm continues to be known as Bisceglie & DeMarco, despite Mr. DeMarco's death.
Plaintiffs argue that Mr. DeMarco's passing is a significant fact which supports their claim that disqualification of counsel is not appropriate at this stage of the litigation. Plaintiffs state that Mr. DeMarco's death removes "even the theoretical possibility that Mr. DeMarco will ever be able to communicate any privileged information he received from Mr. Ryerson - even if there had ever been any confidential information to begin with." See Letter from Angelo Bisceglie, Esq., dated January 14, 2008, Docket Entry No. 171. For the reasons stated below, the Court agrees that disqualification of Plaintiffs' counsel is not warranted.
The New Jersey Rules of Professional Conduct govern the conduct of attorneys admitted to practice before this Court. See L.Civ. R. 6A; Essex Chemical Corp. v. Hartford Accident and Indemnity Co., 993 F.Supp. 241, 246 (D.N.J. 1998). In construing the New Jersey Rules of Professional Conduct, this Court may review decisions rendered by state and federal courts in New Jersey, and ...