On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FO-01-138-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2012
Before Judges Axelrad and Sapp-Peterson.
On leave granted, defendant appeals from the Family Part's
interlocutory order disqualifying his attorney from representing him
in connection with a domestic violence contempt proceeding. The court
disqualified the attorney, Louis M. Barbone, of the law firm of Jacobs
& Barbone, because his partner previously had
been consulted by the alleged victim of the domestic violence. The
court granted the motion without conducting oral argument and in
advance of the scheduled return date. On appeal, defendant contends
the State's motion to disqualify counsel was without factual support
and the court should have denied it summarily. Alternatively,
defendant urges that, assuming the court believed it had some basis
for its decision, its application of R.P.C. 1.18(b)*fn1
was arbitrary, without basis in fact, and legally erroneous.
Based on our review of the record and applicable law, we are convinced
the State failed to demonstrate a factual or legal basis for the
disqualification. Accordingly, we reverse the order.
On March 24, 2011, a final restraining order (FRO) was entered in favor of P.A.P. against defendant under the Prevention of Domestic Violence Act.*fn2 The terms of the FRO incorporated the court's amended order of February 24, 2011. On October 15, 2011, P.A.P. swore a complaint in the Ventnor City Municipal Court alleging that defendant violated the terms of the FRO pursuant to N.J.S.A. 2C:29-9b.
On December 9, 2011, Barbone entered an appearance on behalf of defendant with the county prosecutor and requested and received discovery. On December 12, 2011, defendant appeared with counsel before the Family Part judge and entered a plea of not guilty. At that time the prosecutor announced that the State intended to file a motion to disqualify counsel because P.A.P. had previously consulted with Edwin J. Jacobs, Jr., of defense counsel's firm.
On January 12, 2012, the State filed a motion to disqualify defense counsel, supported by a brief and certification of Cameshia Caldwell, the assistant prosecutor assigned to this case. Upon her request, the case was transferred to another Family Part judge.
On January 20, 2012, defense counsel was sent notice that a contempt hearing had been scheduled for February 8, 2012. On February 2, 2012, defense counsel submitted a brief in opposition to the State's disqualification motion, supported by affidavits of Jacobs and Lucille Bongiovanni, an associate in the firm of Jacobs & Barbone. In the forwarding letter, defense counsel confirmed his understanding that the motion would be heard on February 8, 2012, at 1:30 p.m.
On February 7, 2012, the Cape May family division manager faxed a copy of the court's order disqualifying counsel in advance of the date set for oral argument. Defense counsel inquired orally, and then by letter the following day, whether the court placed its reasoning on the record or whether a memorandum of decision was forthcoming to counsel. He was advised that only the court's order existed directing disqualification of the firm and defendant to retain new counsel within fourteen days.
On February 16, 2012, the court granted defendant's request for a stay pending his motion for interlocutory appeal. On that date, the court also issued a letter opinion providing its reasoning with regard to the disqualification order. Defendant promptly moved for leave to appeal, which the State opposed, and we granted by order of March 9, 2012.
The State's disqualification motion was supported solely by Caldwell's certification. She represented that at the December 12, 2011 pretrial conference, Nancy Ridgway, P.A.P.'s matrimonial attorney who also represented her in the appeal of the FRO, said P.A.P. "felt" there was a conflict of interest with Barbone's representation of defendant. She further stated that on December 22, 2011, P.A.P. told their office she "consulted with" Jacobs on "more than one occasion regarding her legal matters involving" defendant. Caldwell additionally stated that according to a January 3, 2012 letter from Ridgway, in October 2011, P.A.P. consulted with Jacobs to discuss substitution of counsel after Ridgeway said she might not be able to complete representation of her outstanding cases.*fn3
Caldwell further related that Ridgway's letter also stated that her office sent P.A.P.'s matrimonial file to Jacobs' office for review and received it back approximately twelve days later. She also stated that P.A.P. and Ridgway's office advised that the matrimonial file "consisted of approximately five boxes of documentation." Caldwell additionally referenced Ridgway's letter stating that "[P.A.P.] learned of [defendant's] attempt to seek representation with Jacobs [&] Barbone while her file was in the law firm's custody" and, at that time she was "assured that the law firm would not represent" defendant.
Jacobs supplied a detailed affidavit stating that he met once with P.A.P. on March 8, 2010, as confirmed by his letter the following day. At that time he conducted a "standard interview" for a potential divorce client to enable him to complete a form, which he attached, containing general marriage information to analyze the anticipated issues and his retainer. Jacobs represented that other than that information, he learned of no other information regarding P.A.P. or ...