On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3657-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
This is an interlocutory appeal from an order of disqualification based on an alleged violation of the Rules of Professional Conduct (RPC), specifically RPC 1.9. RPC 1.9 is not implicated unless the party seeking disqualification is a "former client" of the lawyer or a member of the lawyer's firm. Because this record does not permit a finding of the essential attorney-client relationship between the plaintiff and defendants' lawyers, we reverse.
Plaintiff Ellen M. Casey, a member of the New Jersey bar who has practiced in the public and private sectors, is the former Executive Director of Materials Management for defendant University of Medicine and Dentistry of New Jersey (UMDNJ). One year after her employment was terminated, Casey filed a complaint charging UMDNJ and the individual defendants, who are UMDNJ's Senior Vice Presidents for Finance and Administration and Human Resources, with wrongful termination and violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. The factual basis for Casey's claims is that she was terminated for bringing improprieties in the spending practices UMDNJ employed to the attention of UMDNJ personnel, an independent monitor appointed by UMDNJ, a monitor appointed by the Federal District Court under a deferred prosecution agreement between UMDNJ and the United States Attorney for the District of New Jersey, and the Star Ledger.*fn1
Although the Attorney General filed an answer on behalf of UMDNJ, within two months UMDNJ retained McElroy, Deutsch, Mulvaney & Carpenter (MDMC) to defend against Casey's claims. MDMC is the law firm disqualified from representing UMDNJ under the terms of the order that is the subject of this appeal.
Casey alerted MDMC to her objection to its representation of UMDNJ in her employment litigation soon after the firm was retained by UMDNJ. On September 21, 2007, Casey urged MDMC to withdraw because she "was interviewed by Walter Timpone," a member of MDMC, "in the context of an SCI [State Commission of Investigation] investigation of UMDNJ" on October 19, 2005. On October 2, 2007, Casey sought discovery of documents "setting forth the scope of [MDMC's] representation of [Casey] and/or UMDNJ," and MDMC advised that it had no pertinent documents.
On November 20, 2007, Casey's attorney confirmed her willingness to "hold her objections to [MDMC's] conflict of interest in abeyance," if UMDNJ was willing to "seriously mediate."
Mediation was not successful, and in April 2008, Casey again sought documents "setting forth the scope of [MDMC's] representation of [Casey] and/or UMDNJ . . . ." MDMC again advised that there were no documents. Nonetheless, on September 12, 2009, MDMC produced correspondence written by Timpone discussing MDMC's relationship with the employees of UMDNJ in connection with a federal investigation of UMDNJ. Within two weeks of that disclosure, on September 25, 2009, Casey moved to disqualify the firm. Two days before the motion was heard, MDMC provided additional discovery.
On October 16, 2009, the judge entered an order disqualifying MDMC, giving UMDNJ thirty days to secure new representation, imposing sanctions, reopening discovery for a period of ninety days and adjourning the trial on Casey's termination claims that was scheduled for November 9, 2009. The judge stayed the order to permit UMDNJ to seek interlocutory review.
MDMC filed a motion for leave to appeal on behalf of UMDNJ, which we granted on December 30, 2009. We also granted UMDNJ's motion to supplement the record with additional discoverable material previously overlooked by MDMC - a letter of June 25, 2005 confirming MDMC's retention "to provide assistance to [UMDNJ] regarding [an] SCI investigation." MDMC agreed to the arrangement.*fn2
The evidential materials disclose the following facts relevant to Casey's motion to disqualify MDMC from defending UMDNJ in her action alleging wrongful termination.
UMDNJ retained MDMC in June 2005 "to provide assistance" with the SCI investigation. The SCI subpoenaed employees of UMDNJ. Timpone of MDMC corresponded with the SCI to schedule the appearances of those three UMDNJ employees. The scheduling letters all refer to three employees; one of ...