May 10, 2012
GODSON IKE ORAEDU, EMEKA ANARA, AND UZO AHANEKU, AS OFFICERS OF AND MEMBERS OF ANAMBARA-ENUGU STATE JERSEY CORPORATION, PLAINTIFFS-RESPONDENTS,
ANAMBARA-ENUGU STATE ASSOCIATION OF NJ, INC., A NEW JERSEY CORPORATION, ITS PRESIDENT, CHARLES ONYIUKE, OFFICERS AND CABINET MEMBERS OF ANAMBARA-ENUGU STATE ASSOCIATION OF N.J., INC., A NEW JERSEY CORPORATION, INDIVIDUALS CHARLES ONYIUKE, IZUCHUKWI IGWE, ANTHONY ADUBASIM, JOE OBI OKEKE, JOHN ANIBOGU, AND NNEKA NWAGBO, DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS, AND EZINMA ANARARA, FRANK OYIBO ACHEBE, OSONDU IKE ACHEBE, AMAKA NWOSU, SAMUEL OKUDAH, GLORIA NWANKWO, AND MARY ANNE IBIDA, THIRD-PARTY DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-331-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 23, 2012
Before Judges Parrillo, Alvarez and Skillman.
This is an appeal, by leave granted, from an order entered on August 3, 2010, which disqualified the attorney for defendants/third-party plaintiffs from continuing to represent them, and an order entered on November 16, 2010, which denied a motion for reconsideration of the order disqualifying that attorney.
The underlying action, which was filed on December 29, 2008, more than a year-and-a-half before the disqualification of the defendants' attorney, involves a dispute concerning a December 7, 2008 election of officers of defendant Anambra-Enugu State Association of N.J., Inc. (AESA), which is described in the preamble to its bylaws as consisting of "citizens of Anambra/Enugu States residing in New Jersey" organized to pursue "their common desire to preserve and promote their cultural heritage of Igbos of Nigeria living in the United States." The individual defendants are members of AESA who were elected as officers in the December 7, 2008 election. The plaintiffs are other members of AESA who claim the election was improperly conducted and that the results are therefore invalid.*fn1
Plaintiffs' complaint sought to (1) invalidate the AESA elections held on December 7, 2008 and order new elections to be administered by a court-appointed officer; (2) restrain the individual defendants from having access to AESA's bank accounts; and (3) order the individual defendants to reimburse AESA all funds used to defend this action.
The case was brought before the trial court on February 20, 2009 by an order to show cause. The relief plaintiffs sought at that time included the disqualification of Sebastian Ibezim from representing defendants due to an alleged conflict of interest. However, the trial court indicated that if plaintiffs wanted to press the issue of Ibezim's disqualification, they should file a formal motion. Plaintiffs failed to follow through with their request for disqualification by filing such a motion.
On March 27, 2009, Ibezim filed an answer, counterclaim and third-party complaint on behalf of the defendants. The third-party complaint named seven additional members of AESA, including Frank Achebe, as third-party defendants.
Nearly a year later, plaintiffs and defendants filed cross-motions for summary judgment. While the cross-motions for summary judgment were pending, Charles C. Chikezie wrote the court advising of his "entry of appearance" on behalf of plaintiffs. When the parties appeared on March 12, 2010 to argue the summary judgment motions, Ibezim requested to meet with the trial judge in chambers along with Chikezie. While in chambers, Ibezim asserted that Chikezie had a possible conflict of interest because he had represented one of the defendants in several others matters. The trial judge advised Ibezim that if he wanted to press the issue of Chikezie's disqualification, he should file a motion. Thereafter, defendants, represented by Ibezim, filed a motion to disqualify Chikezie from representing the plaintiffs.
Third-party defendant Achebe, who was then appearing pro se, responded by filing a motion to disqualify Ibezim from representing the defendants. Achebe filed a certification in support of this motion, which is quoted and discussed later in this opinion. Ibezim failed to file a certification in opposition to the motion.
The trial court heard the motions to disqualify Chikezie and Ibezim at the same time. The trial judge denied the defendants' motion to disqualify Chikezie, but granted Achebe's motion to disqualify Ibezim and ordered the defendants to obtain new counsel within thirty days.
The defendants filed a motion for reconsideration of the order disqualifying Ibezim. In support of this motion, they submitted a certification by Ibezim that described his relationship to Achebe, which is quoted and discussed later in this opinion. The trial judge denied the motion for reconsideration.
The defendants/third-party plaintiffs then filed a motion for leave to appeal, which we granted. We now reverse.
"Generally, motions to disqualify are disfavored because they 'can have such drastic consequences.'" Twenty-First Century Rail Corp. v. N.J. Transit Corp., 419 N.J. Super. 343, 357 (App. Div.) (quoting Rohm & Haas Co. v. Am. Cyanimid Co., 187 F. Supp. 2d 221, 226 (D.N.J. 2001)), certif. granted, 206 N.J. 37 (2011). When a motion for disqualification is made, a court must "balance competing interests, weighing the 'need to maintain the highest standards of the profession' against 'a client's right freely to choose his counsel.'" Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988). Thus, we must first consider whether Achebe established any grounds under the Rules of Professional Conduct (RPCs) for disqualifying Ibezim from representing defendants and, if he established such grounds, weigh those grounds against defendants' interest in being allowed to continue to be represented by Ibezim.
Achebe relied solely upon his own certification in support of the motion for Ibezim's disqualification. He alleged in paragraph nine of that certification:
Following the formation of AESA in 1990, I served as the Founding Vice President and subsequently as the President for three consecutive years.
However, Achebe did not allege that he continued to be an officer of AESA at the time of the disputed election or any of the other events upon which this case is based.
Achebe also alleged that Ibezim has been "the Attorney for AESA from on or about 2005 to present." Thus, no evidence was presented of any overlap between the periods of time that Achebe occupied a leadership position in AESA and Ibezim served as its attorney.
Achebe's certification further alleged that "he has attended several AESA's General meetings where he rendered legal advi[c]e and counsel to AESA members" and "has, on occasions too numerous to mention, rendered legal advi[c]e to members of AESA, which includes me, on how to resolve the lawsuit between AESA and Igbo USA, New Jersey, Inc." However, Achebe did not allege that this legal advice related to the election dispute out of which this action arises.
Finally, Achebe alleged that "[o]n December 5, 2006, I consulted with [Ibezim] after I was maliciously defamed by a certain Mr. Chris Moghalu who accused me of embezzling AESA's money as AESA President by writing checks to myself[,]" and that "[d]espite the fact that I consulted and confided in Mr. Ibezim on the said defamatory falsehood by Mr. Chris Moghalu, Mr. Ibezim, in his suit against me in this case, has used this same malicious falsehood to bolster his case against me." However, Achebe did not allege that he retained Ibezim to represent him in that defamation action. His certification also did not explain the relationship, if any, between that defamation action and this election dispute.
In summary, Achebe's certification did not allege either that he personally had an attorney-client relationship with Ibezim or that he occupied a leadership position in AESA during the period that Ibezim served as its attorney. Under these circumstances, we fail to perceive any basis for Ibezim's disqualification from representing AESA and its officers in this litigation.
The two sections of the RPCs upon which the trial court relied in disqualifying Ibezim, RPCs 1.7 and 1.9, can apply only upon a showing of an attorney-client relationship with a present or former client that conflicts with the representation of another client. Since Achebe's certification did not allege that Ibezim has or ever had an attorney-client relationship with him, this essential prerequisite for disqualification under RPC 1.7 or RPC 1.9 was not established.
Moreover, even if it were possible to read Achebe's certification as alleging that he had had an attorney-client relationship with Ibezim, Ibezim's certification in support of the defendants' motion for reconsideration alleged that he never had an attorney-client relationship with Achebe. Upon receiving this certification, the trial court should have, at a minimum, reviewed Achebe's certification again to determine whether it contained any genuine allegation of an attorney-client relationship with Ibezim, which would have revealed that there was no such allegation. See R. 1:7-4(b), which provides that "[m]otions for reconsideration of interlocutory orders shall be determined pursuant to R. 4:42-2[,]" which provides that an interlocutory order "shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice[,]" and Lombardi v. Masso, 207 N.J. 517, 536-38 (2011) (holding that a trial court is not confined to the original record in considering a motion for reconsideration of an interlocutory order).
Because Ibezim never represented Achebe personally, the only other possible basis for his disqualification was RPC 1.13, which sets forth the applicable conflicts rules when an attorney's client is an organization. RPC 1.13(a) provides that "[a] lawyer employed to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other constituents."
RPC 1.13(e) provides that "[a] lawyer representing an organization may also represent any of its . . . officers, employees, members . . . or other constituents, . . . ." Thus, Achebe was not a client of Ibezim simply because Ibezim undertook the representation of AESA and its officers in this litigation. Rather, Achebe was simply a member of AESA who was never represented by Ibezim.
Furthermore, even if there were a basis for concluding that Ibezim and Achebe had an attorney-client relationship and that Achebe made a prima facie showing of a disqualifying conflict of interest, we would still be required to weigh Achebe's interest in disqualification against the defendants' interest in continuing to be represented by Ibezim. Dewey, supra, 109 N.J. at 218. The most salient factor in that weighing process would be Achebe's long delay in moving for Ibezim's disqualification. Achebe was made a party to the action by the filing of defendants' third-party complaint on March 27, 2009, and he filed his answer on April 30, 2009. Yet, he did not file his motion to disqualify Ibezim until nearly a year later, on April 13, 2010. During that one-year period, Ibezim and his law firm engaged in extensive discovery and filed motions, including a motion for summary judgment. Thus, Ibezim and his associate became intimately familiar with the legal and factual issues in the case and acquired a singular familiarity with the evidence. Any other attorney substituted for Ibezim at this late stage of the litigation obviously would need to spend a substantial amount of time to gain a comparable familiarity with the case, which undoubtedly would result in the imposition upon defendants of additional costs for legal services. Indeed, it appears that defendants have encountered substantial difficulty in retaining substitute counsel for Ibezim. Under these circumstances, we would conclude that the disqualification of Ibezim would be inappropriate even if Achebe had made a prima facie showing of a conflict of interest.
For all the above reasons, we reverse the order disqualifying Ibezim from representing the defendants and remand the case to the trial court.