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Mario Carreno v. City of Newark

November 29, 2011


The opinion of the court was delivered by: Falk, U.S.M.J.



This is a motion to disqualify Plaintiff's counsel because of an alleged conflict of interest.

From 2003 until September 2009, Plaintiff's counsel, Diego F. Navas, Esq., was employed by the City of Newark ("the City") as chief in-house counsel for the Litigation Section in the City's Law Department. During his employment, he was responsible for evaluating the merits of tort and civil rights cases filed against the City, personally defending the City and its police officers in countless civil rights cases, and supervising associate attorneys representing the City and its interests.

Now, two years after his departure from the City's employ and engaged in private practice, Navas has filed a civil rights action on behalf of Plaintiff Mario Carreno against the City and Newark Police Officer Paul Hamilton ("Hamilton") (collectively "Defendants"), which arises out of an incident that occurred when Navas was still employed by the City. The Complaint alleges that Hamilton used excessive force to arrest Carreno without probable cause, that the City and Hamilton engaged in a conspiracy to deprive Carreno of his constitutional rights, and that the City is liable for the constitutional violations under Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978) ("Monell").

The Complaint includes allegations referring to the confidential disciplinary history of Officer Hamilton, who was an individual defendant in a previous case in which Navas was involved as City counsel. In addition, as support for the Monell-type allegations in the Complaint, Navas expressly pleads and relies on a petition filed by the American Civil Liberties Union ("ACLU") with the United States Department of Justice that alleges widespread and systemic civil rights failures within the Newark Police Department. The alleged violations by the Newark Police Department referred to in the ACLU petition occurred, at least in part, when Navas himself was the supervising Section Chief in the City's civil litigation section and was personally responsible for defending the City and its policies.

In light of Navas's previous representation, Defendants have moved to disqualify Navas pursuant to New Jersey Rule of Professional Conduct ("RPC") 1.9(a) and the New Jersey Supreme Court's controlling opinion in City of Atlantic City v. Trupos, 201 N.J. 447 (2010) ("Trupos"). Basically, Defendants claim that Navas has a disqualifying conflict of interest and is engaged in prohibited side-switching.

The motion is fully briefed. No argument was heard. For the reasons that follow, the Court concludes that Navas's representation of Plaintiff in this case violates RPC 1.9(a). Accordingly, Defendants' motion to disqualify is granted.

II. BACKGROUND A. Present Complaint

In July 2009, Plaintiff alleges that he was at his residence in Newark, New Jersey, when members of the Newark Police Department, including Officer Hamilton, entered into his apartment to arrest another individual in connection with a solicitation/prostitution investigation. (Compl., ¶¶ 10-11.) Plaintiff alleges that he was placed in handcuffs, struck in the side of the head by Hamilton, and pushed to the floor. (Compl., ¶¶ 13, 16.) Plaintiff further alleges he suffered a large laceration to his scalp caused by Hamilton's use of excessive force. (Compl., ¶ 19.) Plaintiff was not charged and states that he reported the incident to the Newark Police Department, which resulted in an internal affairs investigation. (Compl., ¶¶ 20-21.) Plaintiff claims that he cooperated with the Newark Police's internal affairs department, but that the incident was not properly investigated and no disciplinary charges were ever filed against Hamilton. (Compl., ¶¶ 22-24.)

Plaintiff's Complaint was filed in state court and was removed to federal court on July 14, 2011. The Complaint contains multiple counts, including: (1) federal civil rights violations against Hamilton for use of excessive force and unlawful arrest under 42 U.S.C. § 1983; (2) a Monell-type claim*fn1 against the City for allegedly developing and maintaining policies, practices and customs evincing a deliberate indifference to individuals' constitutional rights; (3) conspiracy under 42 U.S.C. §§ 1985-1986; (4) violations of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1, et seq.; and (5) various state law torts. Specifically included in the Complaint are the following noteworthy allegations:

24. Upon information and belief, Defendant Hamilton has been involved in several prior incidents of police misconduct, including the illegal use of force, which have never resulted in discipline against this officer and he has been allowed to remain on the Newark police force.

25. As a matter of custom, practice and/or policy, the Newark Police Department has historically allowed misconduct by its police officers upon citizens to go un-punished which has created an atmosphere where officers believe they can operate with impunity.

26. In fact, the City of Newark Police Department was recently the subject of a much publicized petition filed by the ACLU which charged that the agency fails to adequately investigate incidents of police misconduct resulting in very rare instances of police officers being disciplined for their actions. This petition demands federal oversight of the Newark Police Department.

(Compl., ¶¶ 24-26.)

B. Navas's Prior Representation & The Alleged Conflict*fn2 Navas was formerly employed as in-house counsel for the City in its Law Department.

(Defendants' Statement of Facts ("DSF") ¶ 8; Plaintiff's Response to Defendants' Statement of Facts ("PRSF") ¶ 8.) He was Section Chief of the Civil Litigation Section for the City of Newark from 2003 until September 2009. (DSF ¶¶ 9-10; PRSF ¶¶ 9-10.) The Section Chief reports to the City's chief legal representative, Corporation Counsel. (Plaintiff's Counter-Statement of Facts ("PSF") ¶ 2.) In his role as Section Chief, Navas was responsible for overseeing the Litigation Section, which handled tort and civil rights litigation against the City. (DSF ¶ 11; PRSF ¶ 11.) Navas's responsibilities included review of all preliminary notices of tort claims pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq., which often overlapped with federal civil rights claims. (DSF ¶ 12; PRSF ¶ 12.) Navas was also responsible for assigning cases to himself or to assistant attorneys in the litigation section. (DSF ¶ 13; PSF ¶ 13.) If Navas assigned an assistant attorney to a case, he always maintained supervisory responsibility over the case and the assigned attorney. (DSF ¶¶ 13, 17; PRSF ¶¶ 13, 17.) Navas concedes that he typically reviewed the allegations in complaints, police reports, and witness statements, and that he had access to and, at times, reviewed confidential materials, such as internal affairs ("IA") investigations. (DSF ¶ 15; PRSF ¶ 15.)*fn3 Assignments to assistant counsel were sometimes done by memorandum, and Navas often made comments regarding strategy and provided instructions to the handling attorney how to defend the City, and, if appropriate, the individual police officers involved. (DSF ¶ 15; PRSF ¶ 15.)

According to the City's Tasks and Standards applicable to the Section Chief position, Navas was also responsible to:

* Have daily substantive contact with all attorneys assigned to the Litigation Section.

* Be knowledgeable of the status of all matters handled by the Litigation Section including Court appearances and settlement negotiations.

* Be knowledgeable of the status of all matters assigned to individual attorneys in the Litigation Section.

* Provide Management with a monthly status report as to all pending cases.

* [S]eek settlement approval on all matters, from Corporation Counsel, or her designee, in the first instance.

* Provide attorneys with guidance and supervision concerning all aspects of effectively managing and representing the City in their respective matters.

(DSF ¶ 17 (quoting the City's Tasks and Standards Sheet, attached to Certification of Gary S. Lipshutz, Esq. ("Lipshutz Cert.") as Ex. B); PRSF ¶ 17.) In addition, Navas was obligated to keep Corporation Counsel and First Assistant Corporation Counsel informed ...

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