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Bals v. Metedeconk National Golf Club

March 30, 2010

EDWARD F. BALS, PLAINTIFF,
v.
METEDECONK NATIONAL GOLF CLUB, INC., DEFENDANT.



The opinion of the court was delivered by: Bongiovanni, Magistrate Judge

MEMORANDUM OPINION

Presently before the Court is Defendant Metedeconk National Golf Club, Inc.'s ("Metedeconk") Motion to Disqualify Durkin & Durkin, LLP ("Durkin & Durkin") as counsel for Plaintiff Edward F. Bals ("Bals"). The Court has fully reviewed the parties' arguments made in support of and in opposition to Metedeconk's Motion, and considers the Motion without oral argument pursuant to FED.R.CIV.P. 78. For the reasons set forth more fully below, Metedeconk's Motion is DENIED.

I. Background

This litigation stems from Bals' claims that Metedeconk discriminated against him on the basis of age. Bals alleges that Metedeconk violated the Age Discrimination in Employment Act (29 U.S.C. §621, et. seq.). Bals was a seasonal employee of Metedeconk between the years of 1992 and 2007. In 1995, Bals was hired by Metedeconk as a full time valet-supervisor. During his time as an employee at Metedeconk, Bals also served as a caddie and worked private events for which he was paid a salary and earned tip income. In the fall of 2002, Metedeconk hired Jay Davis ("Davis") as its Manager whose duties included the hiring, discharging and supervising of Bals and other seasonal employees. Based on the alleged discriminatory conduct of Davis and other Metedeconk employees between 2005 and 2007, Bals resigned as a Metedeconk employee in April of 2007.

Thomas E. Durkin, III ("Mr. Durkin"), the Senior Partner of Durkin & Durkin and a personal friend of Bals, is a former club member and board member of Metedeconk. Mr. Durkin served on the Board of Directors of Metedeconk through the end of 2003 and was a club member of Metedeconk until March of 2009. It appears from the papers submitted that Mr. Durkin had been affiliated with Metedeconk since its inception. Mr. Durkin was a board member at the time Davis was hired by Metedeconk in the fall of 2002. Mr. Durkin's resignation was acknowledged by Metedeconk and he is presently awaiting redemption of his membership certificate with no rights, voting or otherwise, nor any of the privileges associated with membership at Metedeconk. While Mr. Durkin awaits the redemption of his membership certificate, he retains the right to remove his name from the redemption list and reinstate himself to the active member list subject to Board discretion up until the time of redemption. Durkin & Durkin currently serves as counsel for Bals, although Mr. Durkin has not had and will not have any involvement in this matter other than introducing Bals to the lawyers in Durkin & Durkin who were initially handling this matter. Gregory Kotchick ("Mr. Kotchick") is currently the lawyer at Durkin and Durkin handling the case.

The instant motion to disqualify arises from the relationship between Metedeconk and Mr. Durkin. Metedeconk argues that Durkin and Durkin should be disqualified as Bals' Counsel because of various violations of the New Jersey Rules of Professional Conduct ("RPCs"). Metedeconk argues that because of a conflict of interest between Mr. Durkin and Metedeconk, Durkin & Durkin should be disqualified as counsel for Bals pursuant to sections 1.7 and 1.10 of the RPCs. Metedeconk claims that Mr. Durkin has obtained confidential information about the Club, its employees, its finances, its legal representation and insurance strategies. Additionally, Metedeconk argues that Durkin & Durkin should be disqualified as counsel for Bals pursuant to RPC 3.7 because Mr. Durkin may be called as a witness in this case. Metedeconk believes that Mr. Durkin's knowledge and confidential information regarding the parties in this case may be relevant in a trial between these litigants and thus he may be called as a witness.

Bals opposes Metedeconk's motion. Bals argues that even though Mr. Durkin is a former club member and board member of Metedeconk, Metedeconk is not nor ever has been a client of Durkin & Durkin or any attorney at Durkin & Durkin. Bals further argues that Mr. Durkin currently has no personal interest in Metedeconk due to the fact that he has no rights or privileges associated with membership. Bals further argues that even if the Court were to find a conflict of interest, Durkin & Durkin would not need to be disqualified because Mr. Durkin has no involvement in the case. Similarly, Bals argues that Durkin & Durkin does not need to be disqualified due to the potential of Mr. Durkin being called as a witness because Mr. Durkin has no involvement in the case.

II. Analysis

In this District, questions of professional ethics are governed by L.Civ.R. 103.1(a), which provides that the RPCs are to be used to resolve same. See Carlyle Towers Condo. Ass'n v. Crossland Sav., 944 F.Supp. 341, 345 (D.N.J. 1996). In interpreting the RPCs, the Court looks to New Jersey's state courts' interpretations of them as primary authority and modifies that interpretation when required or permitted by federal law. L.Civ.R. 103.1(a); see Steel v. General Motors, 912 F.Supp. 724 (D.N.J. 1995).

When considering a motion to disqualify counsel, the movant bears the burden of proving that disqualification is appropriate because the RPCs were violated. See Maldonado v. New Jersey, 225 F.R.D. 120, 136-37 (D.N.J. 2004). Further, the movant's burden is a heavy one as "[m]otions to disqualify are viewed with 'disfavor' and disqualification is considered a 'drastic measure which courts should hesitate to impose except when absolutely necessary.'" Alexander v. Primerica Holdings, Inc., 822 F.Supp. 1099, 1114 (D.N.J. 1993) (quoting Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983) (internal quotation marks and citation omitted)). As a result, in determining whether to disqualify counsel, the Court must closely and carefully scrutinize the facts of each case to prevent unjust results. See Montgomery Acad. v. Kohn, 50 F.Supp.2d 344, 349 (D.N.J. 1999). Further, given the fact sensitive nature of motions to disqualify counsel, the Court cannot blindly apply the RPCs without any consideration of the parties' relative hardships. Id. (citing Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F.Supp. 1121, 1126 (N.D. Ohio 1990)). Instead, the Court must "balance the need to maintain the highest standards of the [legal] profession against a client's right to freely choose his counsel." Steel, 912 F. Supp. at 733 (internal quotation marks and citations omitted). However, if there is any doubt as to the propriety of an attorney's representation of a client, such doubt must be resolved in favor of disqualification. Maldonado, 225 F.R.D. at 137.

Here Metedeconk generally claims that Durkin & Durkin should be disqualified because they violated RPCs 1.7, 1.10, and 3.7. These arguments are addressed in turn below.

A. Disqualification under RPCs 1.7 and 1.10

New Jersey's courts have held that "[o]ne 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." Matter of Opinion No. 653, 132 N.J. 124, 129 (1993); accord In re Opinion 682, 147 N.J. 360, 368 (1997). The RPCs codify this ethical duty in RPC 1.7, which requires an attorney uphold to his client "undivided loyalty and allegiance." Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 598 (App. Div. 2004) (internal quotation marks and citation omitted). Specifically, RPC 1.7 provides:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A ...


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