SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3518-22 

REBECCA MCCARTHY, 

Plaintiff-Respondent, 

v.

CARE ONE MANAGEMENT, LLC, 

and ALISON FITZPATRICKDURSKI, 

 Defendants-Appellants. 

______________________________ 

Argued December 5, 2023 – Decided January 16, 2024 

Before Judges Whipple, Mayer and Paganelli. 

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Bergen County, 

Docket No. L-8657-16. 

Bruce H. Nagel argued the cause for appellant Care One 

Management, LLC (Nagel Rice, LLP and O'Toole 

Scrivo, LLC, attorneys; Bruce H. Nagel, Robert H. 

Solomon, Thomas P. Scrivo, and Michael J. Dee, of 

counsel and on the briefs).

Paul R. Castronovo argued the cause for respondent 

(Castronovo & McKinney, LLC, attorneys; Thomas A. 

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-3518-22

McKinney, Paul R. Castronovo, and Edward W. 

Schroll, on the brief).

PER CURIAM 

 By way of leave granted, defendant Care One Management, LLC (Care 

One)1 appeals from a June 8, 2023 order denying its motion to disqualify the law 

firm of Castronovo & McKinney, LLC, from further representation of plaintiff 

Rebecca McCarthy. We affirm. 

 In our prior opinion, McCarthy v. Care One Management, LLC, No. A2542-19 (App. Div. July 12, 2021) (slip op. at 1), we affirmed the jury's award 

of compensatory damages to plaintiff. We also determined "an award of 

punitive damages against Care One was warranted." Id. at 12. However, 

contrary to N.J.S.A. 2A:15-5.12(c), "the jury assessed punitive damages . . . 

without the benefit of any evidence regarding Care One's financial condition." 

Id. at 13. Thus, we concluded "[u]nder these circumstances, the award must be 

vacated and a new trial as to punitive damages must be conducted after an 

opportunity for discovery of relevant information." Id. at 14. We expressly 

directed discovery of "evidence regarding Care One's financial condition . . . , 

1

 Defendant's current corporate designation is ABC 1857, LLC f/k/a Care One 

Management, LLC. 
3 A-3518-22

including [] balance sheets and cash flow statements, as well [as] documents and 

information regarding [Care One's parent]." Id. at 13. 

Based on our remand instructions, plaintiff served Care One with requests 

to produce documents. Plaintiff's document requests included not only Care 

One's financial documents but financial documents from related corporate 

entities. Plaintiff subsequently filed two separate motions seeking to compel 

Care One to provide discovery related to its financial condition. On June 7, 

2022, and again on January 13, 2023, the judge partially granted plaintiff's 

motions and ordered Care One to produce its financial documents but not 

documents concerning the financial condition of related corporate entities. 

To comply with the first order compelling discovery, on June 10, 2022, 

Care One's Executive Vice President and Chief Legal Officer, Ricardo Solano, 

sent an email to Howard Tepper, Care One's Senior Vice President of Finance, 

asking him to "designate somebody . . . to work with [Care One's outside 

counsel] on identifying what potential records [Care One] ha[s] to produce to 

satisfy [its] discovery obligation." Tepper designated Care One's Accounting 

Manager, Harriet Sarna, to provide Care One's financial documents. On June 

13, 14, and 15, 2022, Sarna provided Care One's counsel with payroll records, 

general ledgers, and W-3 forms for 2016 through 2020.
4 A-3518-22

On June 16, 2022, Tepper and Sarna spoke with Care One's in-house and 

outside counsel to discuss Care One's compliance with the court's June 7, 2022 

order compelling discovery. According to Care One, during this conference 

call: 

[T]he participants, led by . . . Tepper, reviewed and 

analyzed certain financial documents maintained by 

Care One to determine whether they were encompassed

by . . . the [c]ourt's June 7, 2022 order. The call . . . 

involved a detailed discussion . . . regarding the details 

of Care One's financial records, including how those 

records [were] generated and recorded . . . [,] [in order 

to] produc[e] relevant and responsive records. 

The next day, Care One produced approximately one thousand pages of financial 

documents to plaintiff. 

On November 22, 2022, plaintiff filed another motion to compel 

discovery, "seeking records related to not only . . . Care One . . . but also various 

related entities." In a January 13, 2023 order, the judge required Care One to 

produce "detailed financial information, including tax records; income records; 

profit and loss records and related information for Care Services . . . and Care 

One." 

On January 26, 2023, Tepper again spoke with Care One's in-house and 

outside counsel to discuss Care One's compliance with the January 13 order. On 

January 30, 2023, one of Care One's outside counsel circulated a draft cover 
5 A-3518-22

letter to accompany the financial documents produced in response to the court's 

January 13 order. Counsel asked Tepper to review the draft letter for accuracy. 

Later that day, Care One asserted Tepper communicated with Care One's counsel 

by email and telephone to discuss "information and figures contained [i]n the 

financial records . . . to determine [the] relevance and responsiveness of the 

documents proposed to be produced." 

On February 5 and 22, 2023, Tepper forwarded confidential financial 

documents regarding Care One to his personal email account. According to Care 

One, Tepper's decision to forward these emails to his personal email account 

violated the terms of his employment. Specifically, Care One claimed Tepper 

was prohibited from using Care One's proprietary information and confidential 

records "for [his] own purpose or for the benefit of any individual or entity other 

than [Care One]." 

On February 24, 2023, Care One fired Tepper. Tepper then retained 

Castronovo & McKinney to represent him in negotiating a severance package. 

Castronovo & McKinney sent a March 6, 2023 letter to Care One, alleging Care 

One violated Tepper's rights by "firing him in retaliation for disclosing and 
6 A-3518-22

refusing to participate in [Care One's] illegal conduct."2 The letter offered to 

release Tepper's legal claims against Care One in exchange for "a fair severance 

package."3 

In response, Care One sent a March 31, 2023 letter to Castronovo & 

McKinney, asserting the law firm's representation of Tepper would result in 

disclosure of confidential and privileged information relevant to plaintiff's 

punitive damages case. Care One claimed Tepper had no right to disclose 

privileged information to Castronovo & McKinney. 

A week after sending that letter, Care One filed a motion to disqualify 

Castronovo & McKinney from further representing plaintiff in the punitive 

damages retrial due to the law firm's violation of the Rules of Professional 

Conduct (RPCs). In opposition to the disqualification motion, Tepper certified 

his involvement with plaintiff's case was limited to "gather[ing] documents, 

without any explanation or input." Tepper denied possessing "privileged 

2

 Tepper asserted a whistleblower claim against Care One under the 

Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14. Tepper 

claimed he was fired by Care One for objecting to Care One's plan to pay State 

penalties rather than properly staff its healthcare facilities and challenging the 

company's characterization of certain business expenses. 

3

 According to information in the record, Tepper eventually retained a different 

law firm to pursue legal action against Care One. 
7 A-3518-22

information or documentation from Care One, including regarding [Care One's] 

defense" in plaintiff's litigation. 

In a May 8, 2023 order, the judge denied Care One's disqualification 

motion without prejudice. In denying the motion, the judge explained he lacked 

"specifics and details" of Tepper's alleged involvement in Care One's defense 

beyond Care One's "conclusory statements." The judge stated Care One had to 

provide "concrete information" that Tepper provided privileged and confidential 

information to Castronovo & McKinney and was involved in strategic 

discussions about plaintiff's punitive damages retrial to warrant disqualification. 

Care One subsequently renewed its disqualification motion and submitted 

additional certifications and exhibits. In opposing the renewed motion, Paul 

Castronovo certified Tepper did not provide any privileged information or 

materials related to plaintiff's retrial to him or to his law firm. Additionally, 

Castronovo denied having any knowledge or possession of the redacted emails 

Care One provided to the court for in camera review in deciding the 

disqualification motion. 

In a June 8, 2023 order, the judge again denied the disqualification motion. 

In deciding the renewed disqualification motion, the judge conducted a 

"detail[ed]" in camera review of "the exhibits[,] including emails and 
8 A-3518-22

certifications submitted by [Care One's] counsel." After considering the legal 

arguments and reviewing documents in camera, the judge found Care One 

"failed to meet the heavy burden required for disqualification." The judge 

rejected Care One's contention that Castronovo & McKinney violated the RPCs 

and declined to disqualify the law firm from continuing to represent plaintiff. 

The judge stated: 

When considering a motion to disqualify . . . , [the] 

movant bears the burden of proving the disqualification 

is appropriate due to . . . an RPC violation. RPC 1.13 

controls here. 

It has to be established that . . . Tepper was responsible

for or significantly involved in the organization's legal 

position of the matter and did not merely provide 

information or data. . . . Motions to disqualify are 

viewed with disfavor[,] and disqualification [is] 

considered a drastic measure which courts should 

hesitate to impose[] except when absolutely necessary. 

. . . It's this [c]ourt's view that [Care One] [did not] meet 

[its] burden of showing that . . . Tepper was 

significantly involved in litigation control. Instead[,] 

what is revealed through the e-mails is that . . . Tepper 

was involved with production of documents and data.

. . . . 

There's a lot of . . . inference and innuendo, but there's 

nothing here that tells me specifically . . . an attorney 

. . . involved in that litigation strategy . . . met 

with . . . Tepper and had discussions as to legal 

strategy . . . . 
9 A-3518-22

It sounds to me that . . . Tepper responded to their 

inquiries for documents. If they had a question about 

the document . . . , he would respond to that. But 

he . . . didn't determine how [Care One] . . . 

implement[ed] its legal strategy. 

On July 20, 2023, we granted Care One's motion for leave to appeal the 

order denying disqualification of Castronovo & McKinney from further 

representation of plaintiff. 

On appeal, Care One contends the judge erred by failing to disqualify 

Castronovo & McKinney under RPC 4.4. Care One argues Castronovo & 

McKinney, during its representation of Tepper, obtained confidential and 

privileged information relevant to plaintiff's case and must be disqualified 

because it obtained evidence in violation of Care One's rights. We reject these 

arguments. 

 We review a trial court's determination on a motion to disqualify counsel 

de novo. City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010); see also 

Greebel v. Lensak, 467 N.J. Super. 251, 257 (App. Div. 2021). In reviewing a 

motion for the disqualification of counsel for an adversary based on the RPCs, 

we are required to "balance competing interests, weighing the need to maintain 

the highest standards of the profession against a client's right freely to choose 

his counsel." Twenty-First Century Rail Corp. v. N.J. Transit Corp., 210 N.J. 
10 A-3518-22

264, 273-74 (2012) (quoting Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 

201, 218 (1988)). "[T]o strike that balance fairly, courts are required to 

recognize and to consider that 'a person's right to retain counsel of his or her 

choice is limited in that there is no right to demand to be represented by an 

attorney disqualified because of an ethical requirement.'" Id. at 274 (citations 

omitted). 

"Disqualification of counsel is a harsh discretionary remedy which must 

be used sparingly." Dental Health Assocs. S. Jersey, P.A. v. RRI Gibbsboro, 

LLC, 471 N.J. Super. 184, 192 (App. Div. 2022). Additionally, disqualification 

motions are "viewed skeptically in light of their potential abuse to secure tactical 

advantage." Escobar v. Mazie, 460 N.J. Super. 520, 526 (App. Div. 2019) 

(citing Dewey, 109 N.J. at 218). 

Care One argues Castronovo & McKinney violated RPC 4.4(a) by 

obtaining information regarding Care One's privileged litigation strategy related 

to plaintiff's punitive damages retrial and Care One's confidential financial 

documents. Care One asserts Tepper improperly emailed confidential financial 

documents to his personal email and shared those documents with Castronovo 

& McKinney. 
11 A-3518-22

RPC 4.4 addresses "[r]espect for [r]ights of [t]hird [p]ersons." Under RPC 

4.4(a), "[i]n representing a client, a lawyer shall not use . . . methods of obtaining 

evidence that violate the legal rights of such a person." Care One argues Tepper 

possessed protected and privileged information regarding Care's One litigation 

strategy in producing financial documents responsive to the June 7, 2022 and 

January 13, 2023 court orders. 

Care One contends Tepper communicated with its in-house and outside 

counsel regarding corporate financial documents to be produced to plaintiff and 

provided legal advice regarding those documents such that the communications 

were protected by the attorney-client privilege. Care One portrays Tepper's 

involvement in the production of financial information responsive to the court's 

orders as "assist[ing] Care One's attorneys in providing legal advice concerning 

[plaintiff's] litigation." However, based on Tepper's certification in opposition 

to Care One's first motion to disqualify Castronovo & McKinney, Care One 

mischaracterizes and overstates Tepper's function. 

Tepper aided in gathering documents on Care One's behalf related to the 

disclosure of the company's financial condition relevant to plaintiff's punitive 

damages retrial. In his certification, Tepper asserted he engaged in the following 

activities: (1) instructed Sarna to provide financial records to be produced in 
12 A-3518-22

response to the judge's orders; (2) determined the documents constituting Care 

One's "financial records"; (3) reviewed for accuracy a draft cover letter to 

Castronovo & McKinney enclosing the responsive discovery documents; and (4) 

provided information regarding Care One's financial records, including how 

those records were generated and recorded. 

Based on the information contained in the motion record, Tepper's 

involvement was correctly characterized by the judge as "the supplying of 

factual information or data respecting the matter." Tepper participated in culling 

financial documents relevant to Care One's financial condition as ordered by the 

judge. Care One's certifications in support of its disqualification motion simply 

explained Tepper's role in the selection of its financial documents produced to 

Castronovo & McKinney. 

Accepting as true that Tepper explained certain financial documents to 

Care One's counsel, such discussions did not constitute legal strategy. Care 

One's counsel had to decide which financial documents were responsive to the 

court's orders. Ultimately, Care One's counsel was responsible for producing all 

documents relevant to Care One's financial condition and certifying Care One's 

compliance with the judge's orders. 
13 A-3518-22

Care One does not claim the documents it produced to Castronovo & 

McKinney are privileged. Because Care One presumably produced all 

documents in its possession responsive to the judge's orders, the means and 

manner related to the production of the documents lacks any relevance related 

to plaintiff's punitive damages retrial. Thus, any discussion Tepper may have 

had with Care One's counsel regarding the production of the company's financial 

documents would not be evidence at the retrial. 

Consistent with our prior opinion, documents produced by Care One 

evidencing its financial condition must be presented to the jury during the 

punitive damages retrial under N.J.S.A. 2A:15-5.12(c)(4). To the extent 

Castronovo & McKinney might consider using documents related to Care One's 

financial condition which were not produced by Care One's counsel, unless the 

documents were otherwise publicly available, the potential consequences to the 

law firm could be far more severe than disqualification. 

However, on this record, we are satisfied Care One failed to meet its heavy 

burden of demonstrating Castronovo & McKinney violated RPC 4.4(a) to 

warrant disqualification of the law firm from continued representation of 

plaintiff. Care One proffered "inference and innuendo" that Castronovo & 

McKinney obtained, reviewed, and intended to use Care One's confidential 
14 A-3518-22

financial documents in connection with plaintiff's punitive damages retrial. We 

are confident the trial judge will be able to address a disqualification motion 

during the retrial if Castronovo & McKinney attempt to produce as evidence of 

Care One's financial condition any documents not previously produced by Care 

One in response to the court's orders or documents not otherwise available to 

the general public. 

At this juncture, Care One failed to demonstrate Tepper disclosed to 

Castronovo & McKinney any confidential and privileged information or 

material to be used during plaintiff's punitive damages retrial. To prevail on its 

disqualification motion, Care One had to demonstrate Castronovo & McKinney 

violated the RPCs. Care One has failed to do so on the present record. 

Because we are satisfied Castronovo & McKinney did not violate any 

ethical rules on the record before us, we need not address the federal cases from

other jurisdictions and unpublished cases relied upon by Care One in support of 

its arguments on appeal. First, those cases are not binding on this court. In 

addition, the cases are premised upon judicial determinations that the actions of 

the adverse law firms constituted ethical violations. 

During the punitive damages retrial, if Castronovo & McKinney were to 

use unlawfully obtained confidential or privileged information, then RPC 4.4(a) 
15 A-3518-22

may be triggered. We take no position whether a situation may arise during the 

course of the punitive damages retrial warranting renewal of Care One's motion 

to disqualify Castronovo & McKinney. Nor do we offer any opinion as to the 

propriety of the law firm's conduct under these unique circumstances. 

To the extent we have not addressed any of Care One's remaining 

arguments, those arguments are without sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.