NOEMI ESCOBAR, Individually and as Guardian for J.V., an Infant, Plaintiff-Respondent,
DAVID A. MAZIE and MAZIE SLATER KATZ & FREEMAN, LLC, Defendants-Appellants,
JOSE BETANCES, Third-Party Defendant.
May 22, 2019
appeal from an interlocutory order of the Superior Court of
New Jersey, Law Division, Essex County, Docket No. L-8329-17.
M. Slater argued the cause for appellants (Mazie Slater Katz
& Freeman, attorneys; Adam M. Slater and David Marc
Freeman, on the briefs).
H. Solomon argued the cause for respondent (Nagel Rice LLP,
attorneys; Bruce H. Nagel, Robert H. Solomon and Greg M.
Kohn, on the brief).
Judges Accurso, Vernoia and Moynihan.
David Mazie and his law firm, Mazie Slater Katz &
Freeman, LLC, appeal on leave granted by the Supreme
Court from a September 5, 2018 Law Division
order disqualifying Mazie and every attorney at Mazie Slater,
other than Adam Slater, from representing either Mazie or the
firm in depositions or trial of a malpractice action brought
against them by plaintiff Noemi Escobar, their former client.
the malpractice complaint was filed in November 2017, motion
practice directed to the complaint resulted in very little,
if any, discovery having occurred by the time the
disqualification order was entered the following September.
Accordingly, the facts are not well developed. What we know
is that defendants represented plaintiff in a representative
capacity in a civil suit against the State of New Jersey and
two of its employees as well as two hospitals and several
other individuals for catastrophic injuries to her infant
grandson at the hands of his father. N.E. for J.V. v.
State Dep't of Children & Families, Div. of Youth
& Family Servs., 449 N.J.Super. 379, 383-84 (App.
Div. 2017). After plaintiff settled her claims against the
private entities for $7, 000, 000, a jury found the State 100
percent liable for the baby's injuries and awarded her
$165, 972, 503. Id. at 384-85, 87. The court
denied the State's motion for new trial and judgment
notwithstanding the verdict, and the State appealed.
Id. at 387.
the appeal was pending in this court, the State, which had
argued qualified immunity in the trial court, made efforts to
settle the case. The parties engaged the services of a
mediator, and the State reportedly made different offers to
settle, including a cash offer of $10, 000, 000 made after
argument. After plaintiff rejected all of the State's
settlement offers, we reversed the judgment, finding the
State employees entitled to qualified immunity, N.J.S.A.
59:3-3. N.E. 449 N.J.Super. at 408. The Supreme Court
subsequently denied plaintiff's petition for
certification. N.E. v. State, Dep't of Children &
Families, 231 N.J. 214 (2017).
gist of the malpractice claim against defendants is that they
failed to properly advise plaintiff of the risks on appeal,
rendering her unable to make an informed decision about
settlement. Plaintiff also takes issue with the retainer
agreement, claims Mazie took disbursements for general
overhead not legally permissible and failed to file suit on
her individual behalf. Defendants counterclaimed for
contribution and indemnification in the event of a judgment
in the minor's favor.
were represented initially in this malpractice action solely
by counsel appointed by their malpractice carrier. In January
2018, however, Mazie Slater partner Adam Slater also entered
an appearance on behalf of defendants, prompting plaintiff to
move to disqualify defendants from representing themselves in
defense of her affirmative claims and on any counterclaim.
argued that Mazie and the attorneys at Mazie Slater would be
necessary witnesses at trial, and thus New Jersey Rule of
Professional Conduct 3.7 barred their participation as
counsel for defendants in any phase of the litigation.
Plaintiff contended any hardship to defendants by such a
ruling was "non-existent," because they were
already represented by well-qualified counsel. Defendants
countered that they had a right to represent themselves in
any phase of the case, and because RPC 3.7 is expressly
limited to lawyers acting as advocates at trial, it was
premature to preclude any Mazie Slater lawyer from acting as
counsel for defendants in any event. Defendants further
argued that because the case centered on "the nature and
value" of their legal services to plaintiff, the
exception in RPC 3.7(a)(2) applied as well.
hearing argument, the trial court judge entered an order
granting plaintiff's motion to disqualify all attorneys
at Mazie Slater with the exception of Adam Slater, who
certified he had no involvement in the underlying matter,
from appearing at trial or at any deposition in this case on
behalf of Mazie or Mazie Slater. The court further ordered
that defendants could apply to have Mazie Slater attorneys,
including those joining the firm after its representation of
plaintiff ended, appear at trial or depositions "upon a
showing that such attorneys did not have a substantial
role" in the firm's prior representation of
trial court judge acknowledged the text of RPC 3.7 addresses
only "the appearance of a lawyer as an advocate at trial
as opposed to other proceedings in the case."
Nevertheless, relying on Judge Debevoise's opinion in
Main Events Productions v. Lacy, 220 F.Supp.2d 353
(D.N.J. 2002), the judge determined that depositions are
"close enough to the trial proceeding . . . that it
gives rise to the same underlying purpose of the rule of