The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge
This matter is before the Court on "Plaintiff's Motion to Disqualify Counsel for the Cumberland County Defendants" [Doc. No.
65] (hereinafter "defendants"). The Court received defendants' opposition, the parties' supplemental submissions, and held two hearings.*fn1 While the Court is convinced that defense counsel could have and should have done some things differently, plaintiff's motion is nevertheless denied.
This case arises from the death of Steven Bell ("Mr. Bell"). On December 31, 2007, Mr. Bell was arrested due to an apparent domestic altercation and taken to Cumberland County Jail. Amended Complaint ¶18. On January 1, 2008, at approximately 2:30 p.m., Mr. Bell was found unconscious and unresponsive in his cell. Id. ¶23. Plaintiff, Jaime M. Bell, alleges Mr. Bell was "viciously and brutally beaten."*fn2 Id. ¶24. Plaintiff also alleges the assailants could only have been corrections officers, inmates or detainees. Id. ¶25. Plaintiff further alleges defendants were deliberately indifferent to Mr. Bell's serious medical needs. Id. ¶¶ 27-30. Mr. Bell died on January 10, 2008.
Mr. Bell's original autopsy report from the Office of the Medical Examiner of the City of Philadelphia ("Medical Examiner") concluded that his death was a homicide, e.g., blunt force trauma to the back of the head. In addition, the February 7, 2008 report prepared by the Vineland Police Department ("VPD") referred to the possibility that Mr. Bell was injected (by himself or someone else) with a high dose of insulin. On February 2, 2011, the Medical Examiner amended the manner of death to "undetermined." The amended report concluded: (1) Mr. Bell's brain injuries may have been caused by attempts to rouse him from a coma rather than an assault; (2) the autopsy could not discern the relative contribution of brain injury from severe hypoglycemia and mechanical brain trauma in the causation of the death, and (3) if Mr. Bell injected himself with insulin, it was not known whether he attempted to commit suicide or if the injection was intended to get attention and/or his release from custody. Mr. Bell's death was investigated by the Cumberland County Prosecutor's Office ("CCPO") who decided not to press criminal charges.
Mr. Bell's death was extensively investigated by the VPD and the CCPO. Their reports, and those of the Medical Examiner, reveal that the cause of Mr. Bell's death is likely to be vigorously contested. Although defendants deny that Mr. Bell was beaten, the Court does not presently know what if any reason they will give at trial as to the cause of Mr. Bell's death. It is no secret that plaintiff's mother-in-law accused plaintiff of injecting her son with insulin.*fn3 In addition, at all relevant times it was widely known that plaintiff and Mr. Bell had a "rocky" relationship that resulted in several domestic violence complaints.
This lawsuit was filed on December 23, 2009. The named plaintiff is "Jaime M. Bell, as Administrator Ad Prosequendum and as Administrator of the Estate of Steven Charles Bell, Deceased." As noted, Jaime M. Bell is Mr. Bell's widow and the mother of his two children. Defendants were originally represented in this lawsuit by Steven L. Rothman, Esquire, of Lipman Antonelli, et al. On January 27, 2011, the law firm of Kavanagh & Kavanagh, LLC ("K&K") substituted in as defense counsel. Brendan Kavanagh, Esquire, and Victoria Kavanagh, Esquire, husband and wife, are the named partners in the firm. Stephanie Olivo, Esquire, an attorney working for K&K, started to take Ms. Bell's deposition on November 1, 2011. The deposition was adjourned after Ms. Olivo learned for the first time that K&K represented Ms. Bell in the past. This was also when Ms. Bell learned K&K represented the defendants in her lawsuit. J. Bell March 12, 2012 Affidavit ¶9. The present Motion to Disqualify was filed soon thereafter.
There is no dispute that Ms. Kavanagh represented Ms. Bell in connection with her worker's compensation claim arising from an accident that occurred on June 28, 2008. Although the claim settled on March 8, 2010, the settlement provided that Ms. Bell could move to reopen her claim by March 8, 2012 if her shoulder injury worsened. See Plaintiff's Brief, Exhibit 8. Mr. Kavanagh also represented Ms. Bell in connection with a traffic citation she received and her subsequent March 24, 2010 court hearing.
Plaintiff contends that in the course of K&K's representation it learned confidential information that could be used against her in this lawsuit. To be more specific, the communications at issue were with Ms. Kavanagh. Plaintiff avers in her December 8, 2011 affidavit, reviewed by the Court in camera, that before she retained her present counsel she "spoke with Victoria Kavanagh about [Mr. Bell's] death and the possibility of looking into whether there was a case to bring." J. Bell Affidavit ("J. Bell Aff.") ¶8.*fn4 Generally, the affidavit discusses, inter alia, information plaintiff allegedly relayed to Ms. Kavanagh about the evening of Mr. Bell's arrest, discussions with Mr. Bell, her relationship with Mr. Bell, the history of her custody issues, problems with her mother-in-law, and other related issues. Ms. Bell acknowledges Ms. Kavanagh told her "she could not represent [her] in any of these matters and said that [she] would need to seek a civil attorney and a family court attorney." Id. ¶25.
Plaintiff argues defense counsel should be disqualified pursuant to R.P.C. 1.9(a) and 1.10(a). Plaintiff alleges she relayed confidential information to Ms. Kavanagh in the course of her representation which could be used against her in this lawsuit. Defendants argue that Ms. Bell's prior representation is not substantially related to this case. They also argue that Ms. Bell did not relay to them any confidential information and they "[n]ever discussed intimate details of Jaime Bell's life with her." January 10, 2012 Letter Brief at 5. Defendants contend that the potentially incriminating details of Ms. Bell's history are not confidential because they are part of the public record. In addition, defendants contend that Ms. Bell is not the plaintiff because she is suing in her representative rather than individual capacity.
The Court had occasion to discuss motions to disqualify in a recent opinion. See Martin v. AtlantiCare, C.A. No. 10-6793 (JHR/JS), 2011 WL 5080255 (D.N.J. Oct. 25, 2011). In the District of New Jersey issues regarding professional ethics are governed by L. Civ. R. 103.1(a). This Rule provides that the Rules of Professional Conduct ("R.P.C.") of the American Bar Association, as revised by the New Jersey Supreme Court, shall govern the conduct of members of the bar admitted to practice in the District. See L. Civ. R. 103.1(a); Carlyle Towers Condo. Ass'n, Inc. v. Crossland Sav., FSB, 944 F.Supp. 341, 344-45 (D.N.J. 1996). When deciding a motion to disqualify counsel the movant bears the burden of proof that disqualification is appropriate. City of Atlantic City v. Trupos ("Trupos"), 201 N.J. 447, 462-63 (2010); Maldonado v. New Jersey, ex rel., 225 F.R.D. 120, 136-37 (D.N.J. 2004). The movant's burden is a heavy one since "[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, 117 F.2d 417, 420 (7th Cir. 1983) (internal quotation marks and citation omitted)). Nevertheless, "a motion for disqualification calls for [courts] to balance competing interests, weighing the need to maintain the highest standards of the profession against a client's right freely to choose his counsel." Trupos, 201 N.J. at 462 (citing Dewey v. R. J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988)). See also Twenty-First Century Rail Corporation v. New Jersey Transit Corp. ("Twenty-First Century"), N.J. , 2012 WL 1570025, at *5 (2012). In weighing this balance the Court is mindful that "there is no right to demand to be represented by an attorney [or law firm] disqualified because of an ethical requirement." Trupos, 201 N.J. at 462.
When determining whether to disqualify counsel the Court must closely and carefully scrutinize the facts to prevent unjust results. Montgomery Acad. v. Kohn, 50 F.Supp.2d 344, 349 (D.N.J. 1999). In Steel v. Gen. Motors Corp., 912 F.Supp. 724, 733 (D.N.J. 1995) (citation omitted), the court noted that its balancing "involves a 'painstaking analysis of the facts and precise application of precedent.'" Id. In addition, "[t]he decision whether to disqualify a law firm by imputation is best undertaken on a case-by-case basis, weighing the facts as they exist at the time the motion to disqualify is made. New Jersey courts have consistently eschewed per se rules of disqualification, stressing the 'fact-sensitive nature' of a decision to disqualify counsel." Cardona v. Gen. Motors Corp., 942 F.Supp. 968, 976 (D.N.J. 1996).
Since disqualification issues are intensely fact-specific, it is essential to approach such issues with a sense of practicality as well as a precise understanding of the underlying facts. Murphy v. Simmons, Civ. No. 06-1535 (WHW), 2008 WL 65174, at *5 (D.N.J. Jan. 3, 2008)(citation and quotation omitted). Accordingly, the Court scrutinized the parties' detailed submissions and testimony and is deciding defendants' motion based on the extensive record.*fn5
The Court's analysis starts with defendants' argument that Ms. Bell
has no standing to raise a conflict because she is not the named
plaintiff. Defendants argue that Ms. Bell is suing in her
representative capacity as the administrator ad prosequendum of the
Estate of Steven Bell, and not her individual capacity.*fn6
Therefore, defendants argue, "Cumberland County's interest
[in the case] is not materially adverse to Jaime Bell's interests.
January 10, 2012 Letter Brief at 2-3. Defendants' argument is
rejected. The Court finds that for conflict analysis purposes there is
no distinction between whether Ms. Bell is a named plaintiff in her
individual or representative capacity. As the administrator of her
husband's estate, Ms. Bell has the authority to prosecute, manage and
settle the case. Further, she stands to benefit the most from a
judgment or settlement. This puts her in the same position as if she
sued in her individual capacity. In addition, F. R. Civ. P.
17(a)(1)(B) specifically notes that an administrator is a real party in interest
in whose name an action must be prosecuted. The Court will not
emphasize form over substance and will apply the applicable rules and
case law as if Ms. Bell sued only in her individual capacity. Accord
6A Wright & Miller, Federal Practice and Procedures §1542 at 469
(2010)("As used in Rule 17(a), the real-party-in-interest principle is
a means to identify the person who possesses the right sought to be
enforced. Therefore, the term directs attention to whether plaintiff
has a significant interest in the particular action plaintiff has
instituted, and Rule 17(a) is limited to plaintiffs.").
3. R.P.C. 1.9(a) and 1.10(a)
Plaintiff argues that K&K should be disqualified pursuant to R.P.C. 1.9(a) and 1.10(a) which discuss the duties of counsel to their former client.*fn7 R.P.C. 1.9(a) states:
RPC 1.9 Duties to Former Clients
(a) A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.
Plaintiff argues that since Ms. Kavanagh is disqualified pursuant to R.P.C. 1.9(a), it follows that the conflict is imputed to K&K under R.P.C. 1.10(a) and, therefore, K&K should be disqualified. R.P.C.
RPC 1.10 Imputation of Conflicts of Interest: ...