September 13, 2012
HAL BIERMANN, PLAINTIFF-APPELLANT,
BARRY D. BOURQUIN, DEFENDANT-RESPONDENT, AND JOAQUIM PEREIRA, A/K/A JACK PEREIRA AND MASSIVE MASONRY, INC., DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2880-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2012
Before Judges Messano and Espinosa.
Plaintiff Hal Bierman appeals from an order that disqualified his attorney from representing him four days before trial. We reverse.
Plaintiff is a homeowner with a residence in Chatham, New Jersey. He filed the complaint in this action, alleging the following causes of action against all defendants: violation of the Consumer Fraud Act (CFA) N.J.S.A. 56:8-1 to -195; common law fraud; tortious destruction of property; trespass; negligence; and conversion. The allegations arise out of construction work performed at plaintiff's property. According to the complaint, defendant Joachim Pereira (Pereira) is a principal and/or owner of defendant Massive Masonry, Inc., and an employee and/or representative of defendant Pear Tree Builders, Inc. (Pear Tree). The complaint also alleges that defendant Barry Bourquin was a project manager, employee and/or representative of Pear Tree. Because the appeal is limited to the motion to disqualify plaintiff's counsel, we review only the facts relevant to the motion.
On October 19, 2007, after construction had begun, the Township of Chatham (Chatham) issued a "stop construction order" to plaintiff for failure to obtain a construction permit in violation of N.J.A.C. 5:23-2.31(b)(4). The order stated that permission to resume construction could be obtained after a zoning permit and construction permit were issued and required that soil erosion and sediment control measures be immediately installed. A summons was also issued to plaintiff. He was represented in municipal court and in these proceedings by his brother-in-law, Robert C. Epstein, Esq.
The complaint in this action was filed on September 3, 2009. By case management order dated April 28, 2011, the discovery period was extended to June 30, 2011 and the trial was scheduled for July 19, 2011. A case management order dated July 13, 2011 permitted additional discovery and later, a trial notice was issued, setting the trial date as November 7, 2011.
On September 28, 2011, defendant Pereira, trading as Massive Masonry, filed a motion to disqualify Epstein as trial counsel for plaintiff.*fn1 In support of that motion, Pereira submitted certifications of his counsel, George L. Psak, and defendant Bourquin; a letter from Epstein to the municipal prosecutor regarding the summons issued to plaintiff; a copy of plaintiff's pretrial submission; and a copy of the second notice of zoning violation issued by Chatham. Although plaintiff's pretrial submission, dated July 18, 2011, did not identify Epstein as a witness, Pereira sought his disqualification on the grounds that he was a likely witness. In his certification, Psak stated that Epstein had appeared on behalf of plaintiff in the municipal court proceeding, had dealt with local code enforcement and zoning officers for Chatham, and that Epstein's letter mentions a conversation he had with the zoning officer. Psak stated that the primary element of damages claimed by plaintiff was that Chatham required him to build a retaining wall consistent with engineering plans plaintiff had submitted and that the information submitted to the engineer was provided by Epstein. The motion was thus premised upon an argument that representations and statements by Epstein to the engineer and the Township were the basis for the damages claimed. Psak represented that Pereira would call Epstein as a witness at trial.
In granting the motion, the judge cited RPC 3.7, which states in pertinent part:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.
Despite Epstein's assertions that the issues relating to his representation had no impact on the ultimate issues in the case, the motion judge found that there was a likelihood that Epstein's involvement as a liaison between plaintiff and the Chatham authorities "will become a matter for the jury." He acknowledged that Epstein might not have to testify:
It may be that ultimately he may never have to testify. But it's quite foreseeable that he would. As I said earlier, highly foreseeable, maybe even bordering on quite likely. I can't say absolutely. But certainly close enough that I find that the elements under the law require Mr. Epstein to step aside. That eliminates a lot of trouble.
The judge stated that he "absolutely" wished the motion had been made months earlier but did not believe the motion was filed as a delay tactic. Further, he stated he did not see any waiver issue.
In this appeal, plaintiff argues that the disqualification order should be reversed because his counsel is not a necessary witness; the motion should have been denied under the substantial hardship exception of RPC 3.7(a)(3); and because defendants waived their right to seek disqualification. Pereira, who moved for disqualification, has not participated in this appeal because the dispute between plaintiff and Pereira has been settled. Although defendant Borquin has filed a pro se brief, it does not address the disqualification issue.
Disqualification of counsel is a "drastic measure" that courts should hesitate to grant "except when absolutely necessary." Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099, 1114 (D.N.J. 1993); see also J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 231 (App. Div. 2006) (referring to disqualification as "drastic relief"). Because the issuance of the disqualification order concerns a question of law, we review the issue de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
Although RPC 3.7 does not require certainty that an attorney will testify to warrant disqualification, Freeman v. Vicchiarelli, 827 F. Supp. 300, 302 (D.N.J. 1993), the requisite "likelihood" must be that the attorney will be a "necessary witness," i.e., that the attorney can provide evidence that is not available through other means. J.G. Ries, supra, 384 N.J. Super. at 230 (mere representation that the adversary will call an attorney as a witness "does not satisfy the threshold requirements of RPC 3.7, which specifies a likelihood that a lawyer will be a necessary witness").
The record here fails to establish that Epstein was likely to be a necessary witness. The information he could provide regarding communications with Bourquin was also available from Bourquin. Any information he had regarding communications with Chatham officials or the engineer's design of the retaining wall could similarly be obtained from those witnesses.
Moreover, the motion judge gave no consideration to the hardship posed to plaintiff by the disqualification. Although a client does not have an unlimited right to demand to be represented by an attorney who is disqualified by an ethical requirement, a motion for disqualification still requires the balancing of a "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) (internal quotation marks omitted). The most pressing aspect of the hardship claimed concerns the delay in filing a motion, the nature of which inevitably causes further delay even when made in good faith. See ibid.
"Once counsel recognizes that opposing counsel is 'likely to be a necessary witness,' a motion to disqualify opposing counsel should be filed." Freeman, supra, 827 F. Supp. at 302. The right to file such a motion may be waived if it is not exercised in a timely manner. Alexander, supra, 822 F. Supp. at 1115. The factors to be considered in determining whether a moving party has waived its right to object to the opposing party's counsel include "(1) the length of the delay in bringing the motion to disqualify, (2) when the movant learned of the [grounds for disqualification], (3) whether the movant was represented by counsel during the delay, (4) why the delay occurred and (5) whether disqualification would result in prejudice to the non-moving party." Ibid.
Here, defendant did not file the motion until after the discovery period ended and after the second trial date was announced. During that time, plaintiff's counsel was fully involved, spending approximately three hundred hours in the prosecution of the case. Indeed, because the motion was granted just four days before the trial date, it can be reasonably assumed that counsel had substantially, if not fully, prepared the case for trial. The movant's papers provide no reasonable basis for the delay in making the motion.
In Dewey, a motion for disqualification was filed against a plaintiff's law firm approximately four years after the litigation had commenced. Dewey, supra, 109 N.J. at 208. Although the Court found the motion meritorious and stated it "unquestionably" would have upheld the order if it reached the Court earlier, it declined to do so, stating, "an order disqualifying counsel on the eve of trial would do more to erode the confidence of the public in the legal profession and the judicial process than would an order allowing the firm to continue its representation of the plaintiff." Id. at 219. In this case, the "eve of trial" motion lacked such merit and should have been denied.
Reversed. We do not retain jurisdiction.