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Bixby v. Deangelis

July 15, 2009

LINDA G. BIXBY, PLAINTIFF-APPELLANT,
v.
ALEXANDER DEANGELIS, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2551-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 27, 2009

Before Judges Winkelstein and Gilroy.

On leave granted, plaintiff Linda G. Bixby appeals from the November 7, 2008 order disqualifying the law firm of Attorneys Hartman, Chartered (the Law Firm) as her counsel in the present action. We affirm.

Following a long term relationship between the parties, plaintiff moved from New Jersey to California in July 2005. On September 10, 2007, plaintiff filed a complaint against defendant Alexander DeAngelis, alleging that prior to leaving New Jersey she had entrusted defendant to hold certain items and $5,000 in cash in trust for her son. Plaintiff contends that defendant refused to return the persona1 property to her son; used either a portion or all of the $5,000 for personal reasons; and informed third parties that she and defendant were married when, in fact, they were not. Plaintiff asserted claims for the return of her personal property and cash; and for defamation. Defendant counterclaimed, seeking the return of items of jewelry he allegedly entrusted with plaintiff, as well as damages for accounting and childcare services rendered to plaintiff during her prior divorce action.

On July 9, 2008, plaintiff's counsel, Francis J. Hartman, deposed defendant. During the deposition, counsel inquired of defendant's personal lifestyle and his family relationship. After the deposition, Katherine D. Hartman, another member of the Law Firm, informed Francis Hartman that she had recalled previously representing defendant in 2001 in an employment action against his former employer, wherein defendant contended that he had been discriminated against on the basis of his sexual orientation and preference.

On July 29, 2008, Francis Hartman sent defendant's counsel a letter informing him of Katherine Hartman's prior representation of defendant. In addition, the letter provided: "Frankly, your client may already have made you aware of that fact. [Katherine] cannot recall any information that she acquired of a confidential nature during that representation. If your client does, I would appreciate your telling us what that is." The letter further provided: "Since it is unlikely that [Katherine] will do any work on this file, as well as the fact that she can recall no confidential information that could assist us in the claim of Ms. Bixby, I ask that you have your client waive, in writing, any suggestion of a conflict."

On August 11, 2008, defendant's counsel replied that defendant had "not realize[d] the prior representation until after his deposition on July 9, 2008," and defendant "was very upset that the same firm which had represented him with respect to a highly sensitive and confidential matter was now representing Linda Bixby in a litigation involving very similar sensitive and personal matters." Defense counsel requested the Law Firm withdraw as counsel for plaintiff in the action.

In October 2008, defendant filed a motion to disqualify the Law Firm from representing plaintiff in the lawsuit. On November 7, 2008, Judge Suter entered an order, supported by an oral decision, granting the motion disqualifying the Law Firm as counsel in the matter, extending discovery, and adjourning a pending arbitration proceeding for plaintiff to retain new counsel. On January 5, 2009, we granted plaintiff's motion for leave to appeal.

On appeal, plaintiff argues that the trial court erred in granting defendant's motion because defendant had not established that the prior employment action and the present action "are substantially related." We disagree.

Our review of the trial court's decision is plenary. "Where[,] as here[,] the trial judge had no factual disputes to resolve on credibility grounds and only legal conclusions to draw, we are not required to defer to the trial judge's findings." State v. Bruno, 323 N.J. Super. 322, 331 (App. Div. 1999). Appellate review of a trial court's decision, granting or denying a motion to disqualify trial counsel, presents a question of law subject to review de novo. J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 222 (App. Div. 2006).

Generally, "[m]otions to disqualify [opposing counsel] are viewed with disfavor." Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099, 1114 (D.N.J. 1993) (internal quotations omitted). Accordingly, the party seeking to disqualify counsel "bears the burden of proving that disqualification is justified." N.J. Div. of Youth & Family Servs. v. V.J., 386 N.J. Super. 71, 75 (Ch. Div. 2004) (internal quotations and citation omitted). Once a conflict of interest is determined to exist, the appropriate remedy is disqualification of the attorney. State v. Loyal, 164 N.J. 418, 430 (2000).

"One of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients. From that duty issues the prohibition against representing clients with conflicting interests." In re Opinion No. 653 of the Advisory Comm. on Prof'l Ethics, 132 N.J. 124, 129 (1993). In determining whether a conflict ...


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