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Escobar v. Mazie

Superior Court of New Jersey, Appellate Division

August 8, 2019

NOEMI ESCOBAR, Individually and as Guardian for J.V., an Infant, Plaintiff-Respondent,
v.
DAVID A. MAZIE and MAZIE SLATER KATZ & FREEMAN, LLC, Defendants-Appellants,
v.
JOSE BETANCES, Third-Party Defendant.

          Argued May 22, 2019

          On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8329-17.

          Adam M. Slater argued the cause for appellants (Mazie Slater Katz & Freeman, attorneys; Adam M. Slater and David Marc Freeman, on the briefs).

          Robert H. Solomon argued the cause for respondent (Nagel Rice LLP, attorneys; Bruce H. Nagel, Robert H. Solomon and Greg M. Kohn, on the brief).

          Before Judges Accurso, Vernoia and Moynihan.

          ACCURSO, J.A.D.

         Defendants David Mazie and his law firm, Mazie Slater Katz & Freeman, LLC, appeal on leave granted by the Supreme Court[1] 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. We reverse.

         Although 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.[2] 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.

         While 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).

         The 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.

         Defendants 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.

         Plaintiff 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.

         After 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 plaintiff.

         The 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 ...


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