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Killion v. Coffey

United States District Court, D. New Jersey, Camden Vicinage

June 30, 2014

MICHAEL KILLION, et al. Plaintiffs,
CHIEF JOHN COFFEY, et al. Defendants.


NOEL L. HILLMAN, District Judge.

This matter is before the Court on the Motion of Defendants, Chief John Coffey ("Coffey") and Lieutenant Michael Probasco ("Probasco") (collectively, "Defendants"), to disqualify Katherine D. Hartman, Esquire and her firm, Attorneys Hartman, Chartered, from representing Plaintiffs, Michael Killion, Michael Biazzo, Douglas Foster, Socrates Kouvatas, Erik Morton, William Hertline, and Mark Bristow, in this matter [Doc. No. 29]. The Court notes that Plaintiffs oppose this Motion. The Court held a hearing in this matter on June 3, 2014. The Court has reviewed the submissions of the parties and for the reasons that follow, Defendants' Motion is denied.


The following facts are from the certifications submitted to the Court in support of the current Motion and in opposition thereto. By letter dated December 17, 2011, Katherine D. Hartman, Esquire, ("Hartman") advised all members of the FOP Lodge 3 ("FOP") that she and her firm, Attorneys Hartman, Chartered ("the Firm"), had been retained to represent the interests of the FOP beginning in January 2012. Declaration of John Coffey ("Coffey Decl.") ¶ 5, Ex. A, Doc. No. 29-6. In the letter, Hartman stated, in relevant part:

Dear Member:
My name is Katherine (Katie) Hartman and I have been retained to represent your interests beginning in January... While my primary function is to represent those of you who may have disciplinary charges filed against you, I encourage you to call me to [sic] if you have any questions at all relating to the performance of your duties, a potential problem at the workplace, or if you are notified that you are the target of an Internal Affairs investigation.

Id. ¶ 6, Ex. A. The FOP and Hartman, for the Firm, entered into an "Agreement for Legal Services Between FOP Lodge 3 And Attorneys Hartman, Chartered" ("Legal Services Agreement" or "Agreement") wherein Hartman and her firm agreed to act as counsel for members of the FOP from January 1, 2012 through December 31, 2012. Id., Ex. B. As stated in the Legal Services Agreement, "Attorneys Hartman, Chartered shall act as counsel for the Members of FOP Lodge 3, who require legal assistance with Administrative and/or Disciplinary matters." Id., Ex. B(emphasis added). Further, the Agreement provides that "Attorneys Hartman, Chartered and Katherine D. Hartman will provide legal services for all members of FOP Lodge 3, if they... have questions relating to the performance of their duties and/or potential employment and/or disciplinary matters." Id., Ex. B ¶ 1(h)(emphasis added). The Agreement did not contemplate coverage for affirmative legal action in the form of a civil lawsuit. Id., Ex. B, ¶ 1(h)(2). Pursuant to the Agreement, "[t]he FOP Lodge 3 agree[d] to pay Attorneys Hartman, Chartered $15.00 per member, per month for the provision of said Legal Services. Said monies [were] to be paid quarterly [to Hartman] on January, April, July and October 1, 2012." Id. at ¶ 2. The Agreement also stated that "Attorneys Hartman has agreed to undertake the representation of seven (one of these officers has retained other counsel) who were charged prior to her representation." Id. at ¶ 1(h). Lastly, the Agreement provided that "[t]he members understand that if Attorneys Hartman deems there to be a conflict other counsel will have to be retained for those with whom the conflict exists." Id. ¶ 1(h).

On March 22, 2013, Hartman filed this civil action on behalf of Plaintiffs who are patrol or police officers for the Township of Pennsauken against Coffey and Probasco, amongst others. Compl., Doc. No. 1. Both Plaintiffs and Defendants are members of the FOP. Compl. ¶ 25; Coffey Decl. ¶ 2; Declaration of Michael Probasco ("Probasco Decl.") ¶ 2, Doc. No. 29-5. On April 1, 2013, Coffey wrote to the President of the FOP, Matthew Henkel ("Henkel") advising him that he learned of the lawsuit filed against him and asked Henkel to have Hartman contact him. Coffey Decl. ¶ 9, Ex. C. On April 5, 2013, Coffey declared that he received a copy of the Complaint in this matter and learned that Hartman was the attorney representing the Plaintiffs in the lawsuit against him. Coffey Decl. ¶ 10. On April 5, 2013, Coffey wrote to Henkel and indicated that it appeared that Hartman has a conflict. Id. ¶ 11, Exh. D. Coffey copied Hartman on the letter. Id. In a letter dated April 8, 2013 to Hartman, Coffey stated that he reviewed the Legal Services Agreement and indicated that "it appears that you are obligated to provide me with legal services if I have questions relating to the performance of my duties. I advised FOP President Henkel that I have several questions regarding this situation." Coffey Decl. ¶ 12, Ex. E. Coffey also noted to Hartman that it appears that there is a conflict of interest. Id. In response, Hartman advised Coffey that she disagrees with his conclusion that she is "obligated to provide [him] with legal services" and that she was sure that the Township would provide him with counsel. Coffey Decl., Ex. E. Further, Hartman stated in her letter to Coffey that "I have an obvious conflict in representing your interests since I am suing you." Id.; Declaration of Katherine D. Hartman, Esquire ("Hartman Decl.") ¶ 15, Doc. No. 36-1. Furthermore, Coffey declares that Hartman never requested his consent to represent Plaintiffs in this action. Coffey Decl. ¶ 14.

Similarly, Probasco, by letter dated April 16, 2013, requested to consult with Hartman regarding the lawsuit. Probasco Decl. ¶ 7, Ex. A. Hartman responded by letter dated April 23, 2013 advising that because she filed the lawsuit naming him as a Defendant, she has an obvious conflict in representing his interests. Probasco Decl., Ex. B; Hartman Decl. ¶ 15. Probasco also declares that Hartman never asked him to consent to her representation of the Plaintiffs in this case. Probasco Decl. ¶ 9. Prior to the above referenced letters sent by Coffey and Probasco to Hartman, neither had ever sought legal assistance relating to administrative and/or disciplinary matters or contacted Hartman for matters relating to the performance of their duties, a potential problem in the workplace, or because they were the target of an internal affairs investigation. Hartman Decl. ¶¶ 13, 17-18. Indeed, Hartman declares that her relationship with Coffey is primarily an adversarial one, because she has crossexamined him extensively in multiple disciplinary actions.[1] Id. ¶ 19. Moreover, Hartman declares that she has not "had any conversation with either Chief Coffey or Lt. Probasco, or ever disclosed any information that would harm them, or used in a way adverse to their interest during this litigation." Id. ¶ 20.

On September 19, 2013, Plaintiffs filed an Amended Complaint. Am. Compl., Doc. No. 27. In the Amended Complaint, Plaintiffs state a claim for retaliation based upon First Amendment activity alleging that, inter alia, after the FOP hired Hartman as counsel, who has a reputation for being more aggressive in challenging disciplinary charges, "the Chief has refused to negotiate a resolution of charges with anyone who uses the services of that attorney. Id. at ¶¶ 39, 40. In the last year, the only officers who have been offered negotiated resolutions have represented themselves or hired alternate counsel." Id. at ¶ 40. On October 11, 2013, Defendants filed the pending Motion to disqualify Hartman and her firm, Attorneys Hartman, Chartered, from representing Plaintiffs.


a. Conflict of Interest

The first issue before the Court is whether Hartman should be disqualified due to an existing conflict of interest. Defendants have set forth many arguments on this issue. However, because the Court finds that a decision on this dispute rests upon one pivotal issue, whether or not there was an attorney-client relationship between Hartman and either Coffey or Probasco, the arguments of the parties, while reviewed and thoroughly considered, will not be set forth in great detail herein. As such, succinctly stated, Defendants argue that Hartman and her firm have violated New Jersey Rule of Professional Conduct ("RPC") 1.7 because she has brought this action against Coffey and Probasco. Defendants argue that the Legal Services Agreement, an express contract for representation, along with the December 17th letter establish that both Coffey and Probasco had an attorney-client relationship with Hartman. Additionally, Defendants contend that both Coffey and Probasco believed that Ms. Hartman and her firm were their attorneys for issues related to their jobs.[2]

On the other hand, Plaintiffs first argue that no conflict exists because there has never been an attorneyclient relationship between Hartman and Coffey or Probasco. Plaintiffs argue that the Legal Services Agreement was between Hartman and the FOP and only provided the members access to legal services. Further, the December 17th letter was Hartman's attempt to introduce herself to members of the FOP, provide her contact information, and recite the circumstances upon which the members should contact her for purposes of legal services.[3] ...

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