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Thomas J. Fasanella, et al v. Melvin J. Boysen

August 2, 2011

THOMAS J. FASANELLA, ET AL., PLAINTIFFS,
v.
MELVIN J. BOYSEN, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Presently before the Court is a Motion filed by the Law Office of Anthony P. Castellani ("Castellani"), on behalf of Counter Defendant Thomas J. Fasanella ("Mr. Fasanella" or "Defendant Fasanella"), to Disqualify Zaremba, Brownell, and Brown PLLC ("Zaremba") as counsel for Plaintiffs Lucille ("Mrs. Fasanella") and Thomas Fasanella (collectively, the "Fasanellas" or "Plaintiffs") [Docket Entry No. 12]. Zaremba opposes Castellani's Motion to Disqualify and has filed a Cross Motion to Disqualify Castellani as counsel for Defendant Fasanella [Docket Entry No. 14]. The Court has fully reviewed the parties' arguments made in support of and in opposition to both motions, and considers them without oral argument pursuant to FED.R.CIV.P. 78. For the reasons set forth more fully below, Castellani's Motion to Disqualify Zaremba is DENIED and Zaremba's Motion to Disqualify Castellani is DENIED.

I. Background

This litigation stems from an automobile accident that occurred on October 12, 2009 on Monmouth Road at its intersection with Ely Harmony Road in the Township of Freehold. At the time of the accident, Mrs. Fasanella was the passenger in a motor vehicle being operated by her husband, Mr. Fasanella. The Fasanella vehicle was traveling eastbound on Monmouth Road near its intersection with Ely Harmony Road, where a vehicle owned by Defendant Jean A. Boysen ("Mrs. Boysen") and operated by Defendant Melvin J. Boysen ("Mr. Boysen") (collectively, "the Boysens" or "Defendants") was stopped on Ely Harmony Road North. The Boysen vehicle pulled out into the intersection to make a left turn onto Monmouth Road West directly in the path of the Fasanella vehicle, which caused a collision between the two vehicles and caused the Fasanella vehicle to collide with Third-Party Defendant Lisa MacAluso's ("MacAluso") vehicle which was stopped at the intersection on Ely Harmony Road South. Thereafter, Mr. Boysen was issued a traffic ticket at the scene of the accident for careless driving, to which he pled guilty with civil reservation.

The Fasanellas filed a Complaint [Docket Entry No. 1] naming the Boysens as Defendants in this Court based on diversity of citizenship. The Boysens subsequently filed an Answer to the Complaint which included a counterclaim against Mr. Fasanella and a Third-Party Complaint against MacAluso [Docket Entry No. 5]. Castellani, on behalf of Mr. Fasanella in his role as a Defendant, thereafter filed an Answer to the counterclaim [Docket Entry No. 10].

Castellani's Motion to Disqualify arises from the concern that there is a conflict of interest in Zaremba representing both Fasanellas given Mr. Fasanella's status as both a plaintiff and defendant in this case. Castellani argues that Zaremba should be disqualified as Mr. and Mrs. Fasanella's counsel because of a violation of the New Jersey Rules of Professional Conduct (the "RPCs"). Specifically, section 1.7 which prohibits representation of clients having adverse interests.

Zaremba opposes Castellani's Motion and has filed a cross motion to disqualify Castellani as counsel for Defendant Fasanella, based on a conflict of interest between Defendant Fasanella, Castellani, and Geico, which is Mr. Fasanella's insurance carrier who hired Castellani to represent Defendant Fasanella. Zaremba argues that there is no conflict of interest in their firm representing both Fasanellas because the Fasanellas have no intentions of bringing any claims against each other. Zaremba further argues that Castellani should be disqualified as Defendant Fasanella's counsel because Castellani is not acting in the best interest of its client. Zaremba further argues that Mr. Fasanella has advised Zaremba that Castellani's Motion to Disqualify was filed without his consent and was made contrary to the express wishes of Mr. Fasanella, as both Fasanellas have expressly requested to be represented by Zaremba.

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 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, both Castellani and Zaremba argue that the other should be disqualified because of a violation of RPC 1.7. These arguments are addressed in turn below.

A. Zaremba's Disqualification under RPC 1.7

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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