October 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 defendant. He closed the file on June 28, 2010, because P.A.P. did not retain him to represent her in the divorce action.
Jacobs further explained that when P.A.P. called his firm again on September 28, 2011, he was "engaged in an extended trial," and she spoke with his assistant, after which arrangements were made to secure the matrimonial file from Ridgway. Jacobs certified to the following facts regarding the delivery of P.A.P.'s file to his office:
5. . . . While the file of  Ridgway was delivered to my office, I never saw it nor did I review any of it. The file was hand delivered back to  Ridgway on October 12, 2011 and throughout that timeframe I remained engaged in trial. I had no further substantive discussions with [P.A.P.]. Instead, I wrote her on October 3, 2011 confirming that I received the file, that I was in trial and that I had assigned an associate to review the file. I also made clear that the file would not be reviewed until we had agreed upon the terms of my retainer.
6. On October 5, 2011, [P.A.P.] called my assistant and explained that she would be proceeding pro se. I thereafter directed the file's return to  Ridgway and closed my file on the same date. There were no further substantive discussion with [P.A.P.] about her case. I learned nothing in the course of my initial interview with [P.A.P.] that could in any way be used against her in my firm's current representation of [defendant].
Bongiovanni submitted an affidavit stating she was advised by Jacobs' assistant on September 30, 2011, that P.A.P.'s matrimonial file was delivered from Ridgway's office. She was told by Jacobs that P.A.P. was a "potential matrimonial client," and she would be assigned to review the file once P.A.P. signed the retainer agreement. She further stated that on October 5, 2011, she was advised by Jacob's assistant that P.A.P. had decided she was not retaining the firm, and on October 12, 2011, the file was returned to Ridgway's office. The associate represented that "[a]t no time did [she] undertake a review of the file"; she "did not even open the file, and did not review any of the materials that had been delivered to the firm" and she "learned nothing" about P.A.P. or her case from the files. Moreover, she "did not speak with [P.A.P.] at any time regarding receipt of the file and the outstanding retainer agreement, or any other matter" and "did not learn any of the facts."
In his written decision, the judge found P.A.P. consulted with the firm in March 2010, and in October 2011 her file was delivered to them for review in anticipation of handling her matrimonial matter, but "the file was never reviewed and ultimately returned to [her] previous counsel." The judge stated that under R.P.C. 1.18(b) "an attorney shall not represent a client with interests materially adverse to those of a prospective former client if the attorney received information from the former prospective client that would be significantly harmful," and found "it is clear that the Jacobs' firm received such information." Focusing on "receipt" of the information, the judge concluded that because the files were received in the Jacobs & Barbone law office, it was immaterial that no one opened them. The court recognized the alleged violation occurred after the firm's October receipt of the file. Nevertheless, based on P.A.P.'s status as the alleged victim and defendant's status as a defendant, the judge perfunctorily concluded, it was "clear that those files contained confidential information which eventually could impact [P.A.P.] adversely in the contempt proceeding, the appeal of the domestic violence order as well as the pending matrimonial matter." The judge additionally summarily found that R.P.C. 1:7(c)(2) prohibiting any representation which gives rise to the "appearance of impropriety" also compelled the disqualification. The judge concluded:
In this case, the Jacobs' firm consulted with [P.A.P.]. They had her files for a period of almost two weeks. Given the ongoing matrimonial matter, the appeal of the domestic violence matter, and the pendency of this matter the conclusion is compelled that the Jacobs firm's prior contact with [P.A.P.] precludes its defending [defendant] in this matter.
An attorney who has discussed the possibility of forming an attorney-client relationship with a prospective client is barred from using or revealing that information even if no attorney-client relationship is ultimately formed. R.P.C. 1.18(a). Where the firm undertakes the representation of the spouse of a former prospective client, in a substantially related matter, the firm and its attorneys are ethically governed by R.P.C. 1.18(b), which provides as follows:
A lawyer subject to paragraph (a) shall
not represent a client with interests materially adverse to those of a former prospective client in the same or a substantially related matter if the lawyer received information from the former prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (c) [informed consent and a written waiver].
The two factors must coalesce: "the matter of the consultation and the matter then adverse must be 'the same or substantially related,' and the information the lawyer received during the consultation must be 'significantly harmful.'" O Builders & Assocs., Inc. v. Yuna Corp. of N.J., 206 N.J. 109, 113-14 (2011) (quoting R.P.C. 1.18(b)).
We first note that the only basis upon which the State moved for defense counsel's disqualification was the hearsay certification of the assistant prosecutor. See R. 1:6-6 (requiring an affidavit to be made on personal knowledge). The State attempts to buttress its position with the December 12, 2011 court transcript, during which Ridgway mentioned the potential conflict of interest and made statements similar to those reflected in Caldwell's certification. However, the record does not reflect the State provided this transcript to the trial court in connection with its motion for disqualification and the judge's decision did not rely upon the representations made at the hearing. The State presented no certification by Ridgway. More critically, the State presented no certification by P.A.P. to explain the basis for her perceived conflict of interest and details of her conversations with Jacobs. Thus, the State presents no specific allegation of information P.A.P. claims to have conveyed to Jacobs and no specific claim of information alleged to be "significantly harmful," or harmful in any way.
In contrast, defendant presents detailed certification from Jacobs and his associate regarding all contact the firm had with P.A.P. and Ridgway's files. Thus, even if we were to assume that the divorce and alleged contempt of the FRO by defendant was the "same or a substantially related matter," the State failed to demonstrate by competent evidence that the law firm received information from P.A.P.'s former attorney that "could be significantly harmful" to her in the current representation of defendant. In fact, the evidence presented to the motion judge belies that conclusion. P.A.P.'s last consultation with Jacobs was a year and one-half before Ridgway's matrimonial files were sent to his office and, at that time, P.A.P. merely imparted historical information regarding a potential matrimonial action. Moreover, although the files were physically received in the law firm's office, they were never opened or reviewed by Jacobs or an associate and were returned to P.A.P.'s former attorney on October 12, 2011, four days before defendant's alleged violation of the FRO. Thus, Jacobs would have no knowledge of the issues regarding the charge and the facts underlying the charge from P.A.P.'s perspective.
The record reflects that the files sat, unread, for many days in the law firm's office. In view of the affidavits presented by defendant, we decline to conclude the firm "received" P.A.P.'s information within the intendment of the R.P.C. Thus, as confirmed by the affidavits of Jacobs and Bongiovanni, and documents appended in support, no information was received by the law firm from P.A.P. that "could be significantly harmful" to her in the law firm's representation of defendant.
The State's argument that "significant harm is unavoidable given the extent of information provided and delicate information contained therein" and the "materials are obviously significantly harmful since they could give counsel an unfair advantage in challenging the violation of the restraining order currently before the family division" is premised on conclusory, generalized assertions that are not supported by the record. Nor can the State rely upon the "potential appearance of impropriety" or its effect on the victim in the absence of any certification by P.A.P.