NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5397-15T4

THE ESTATE OF FRANCIS P. KENNEDY;

THE FRANCIS P. KENNEDY IRREVOCABLE

TRUST AGREEMENT; THE FRANCIS P.

KENNEDY IRREVOCABLE TRUST AGREEMENT

II; THE FRANCIS P. KENNEDY IRREVOCABLE

TRUST AGREEMENT III; FRANCIS P.

KENNEDY QUALIFIED PERSONAL RESIDENCE

INTEREST TRUST; THE LOUIS KENNEDY 2002

IRREVOCABLE TRUST F/B/O LOUIS KENNEDY; 

THE PATRICIA KENNEDY 2002 IRREVOCABLE 

TRUST F/B/O PATRICIA KENNEDY; THE 

CHERYL KENNEDY 2002 IRREVOCABLE TRUST

F/B/O CHERYL KENNEDY; and THE DONALD

KENNEDY IRREVOCABLE TRUST F/B/O DONALD

KENNEDY,

Plaintiffs-Appellants,

v.

STUART A. ROSENBLATT, C.P.A.; WISS &

COMPANY, LLP; ESTATE OF JOEL 

SHOOBE, ESQ.; ROBERT D. BORTECK, ESQ.;

BORTECK, SANDERS & TORZEWSKI, LLP;

ROBERT S. FINK, ESQ.; and KOSTELANETZ

& FINK, LLP,

Defendants-Respondents.

____________________________________

IN THE MATTER OF RIKER DANZIG SCHERER

HYLAND & PERRETTI, LLP,

Appellants.

_____________________________________

Argued October 5, 2016 – Decided

Before Judges Sabatino, Nugent and Currier.

APPROVED FOR PUBLICATION

November 4, 2016

APPELLATE DIVISION

November 4, 2016
2 A-5397-15T4

On appeal from an interlocutory order of

Superior Court of New Jersey, Law Division, 

Essex County, Docket No. L-1921-16. 

John M. Loalbo argued the cause for 

appellants (Riker Danzig Scherer Hyland & 

Perretti, LLP, attorneys; Mr. Loalbo, of 

counsel; Mr. Loalbo, Stephen J. Pagano, and 

Stephen M. Turner, on the briefs).

Anthony J. Sylvester argued the cause for 

respondent Estate of Joel Shoobe (Sherman, 

Wells, Sylvester & Stamelman, LLP, 

attorneys; Mr. Sylvester and Anthony 

Velanziano, on the briefs). 

The opinion of the court was delivered by 

NUGENT, J.A.D.

This interlocutory appeal involves a delicate and difficult 

conflict-of-interest issue that arose after plaintiffs' 

attorney, who had filed and dismissed the underlying

professional negligence action while at Weiner Lesniak, LLP, 

recommenced the action after joining Riker, Danzig, Scherer, 

Hyland & Perretti, LLP ("Riker"), the firm that had defended the 

Estate of Joel Shoobe, Esq. ("the Estate") in the previous 

action. Meanwhile, the attorneys who had defended the Estate

while at Riker had left Riker and joined a new firm, taking with 

them the Estate's paper file but leaving electronically stored 

documents ("the electronic file" or the "electronic documents"), 

including a privileged memorandum outlining the defense. When
3 A-5397-15T4

Riker recommenced the action on behalf of plaintiffs, the Estate 

moved to disqualify Riker, asserting a conflict of interest.

The trial court granted the Estate's motion. On leave 

granted, plaintiffs and Riker appealed. Having considered the 

parties' arguments in light of applicable legal principles, and 

having further considered certain amendments to the Rules of 

Professional Conduct ("RPCs") and related Official Comments that 

became effective after the trial court's decision, we vacate the 

order disqualifying Riker, but do so conditionally, as will be 

discussed infra.

1

The background facts leading up to the disqualification 

dispute are largely undisputed. On October 11, 2013, plaintiffs 

Estate of Francis P. Kennedy and the eight trusts commenced a 

professional negligence action against defendants.

2 The 

 

1 Following our grant of leave to file this interlocutory 

appeal, the trial court dismissed the action in its entirety on 

an unrelated basis. Plaintiffs filed a motion in this court

challenging the jurisdictional propriety of the trial court's 

action. We denied the motion without prejudice. As prescribed, 

infra, plaintiffs may, within thirty days of this decision, file

a notice of appeal from the trial court's final order. 

2 Plaintiffs labeled the three causes of action they asserted 

against each defendant as negligent performance of services, 

breach of the covenant of good faith and fair dealing, and 

breach of contract. Regardless of these labels, the action, in 

substance, is a professional negligence action. Defendant 

Rosenblatt is a CPA, defendant Wiss & Company, LLP is an 

accounting firm, and the remaining defendants are the estate of 

(continued)
4 A-5397-15T4

complaint was filed by John M. Loalbo, Esquire, then a member of 

Weiner Lesniak, LLP. The Estate retained Riker to defend it. 

Anthony J. Sylvester, then a Riker attorney, filed an answer and 

undertook the Estate's defense. 

On January 27, 2014, a Riker attorney prepared an "Initial 

Case Analysis" ("the Analysis"), which was placed both in 

Riker's paper file and in Riker's electronic document management 

system. According to Sylvester, the Analysis was "a detailed 

case assessment and strategy memorand[um]," which was sent to 

the client. 

On July 11, 2014, nine months after the complaint was 

filed, Sylvester and several other attorneys handling the 

Estate's defense left Riker and joined the new firm of Sherman 

Wells Sylvester and Stamelman ("Sherman Wells"), taking with 

them the Estate's paper file. Riker withdrew as the Estate's 

counsel, Sherman Wells substituted in, and the parties filed a

 

(continued)

a former lawyer, lawyers, and their present or former law firms. 

See Charles A. Manganaro Consulting Eng'rs, Inc. v. Carneys 

Point Twp. Sewerage Auth., 344 N.J. Super. 343, 349 (App. Div.

2001) (explaining that a counterclaim plaintiff could not avoid 

the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29, by 

labeling the counterclaim as a claim for breach of contract, 

when the allegations in the counterclaim were that the 

counterclaim defendant deviated from the standard of care 

exercised in similar situations by the professionals practicing 

in the field). 
5 A-5397-15T4

substitution of counsel form with the court on July 14, 2014. 

The following month, on August 27, 2014, the action was 

dismissed by way of a consent order, without prejudice, for 

reasons not relevant to this appeal. On September 15, 2014,

less than a month after the action was dismissed, Loalbo, 

plaintiffs' attorney, left Weiner Lesniak, LLP and joined Riker.

Nineteen months after dismissing the action, on March 23, 

2016, plaintiffs, through Loalbo, now at Riker, commenced the 

current action by filing a complaint, alleging essentially the 

same causes of action that had been alleged in the previous

complaint. On April 11, 2016, Sylvester, now at Sherman Wells,

contacted Riker concerning the conflict of interest. The next 

day, Riker established an internal "ethical wall" to prevent 

Loalbo and his staff from accessing the Estate's electronic file

stored in the firm's electronic management database. Riker had 

until then taken no action to prevent the firm's personnel from 

being able to access the Estate's electronic files.

In addition to establishing the so-called ethical wall, the 

same day, April 12, 2016, a senior attorney at Riker, assisted

by IT personnel, reviewed some part of the electronic file to 

determine, among other things, whether anyone at Riker had ever

accessed any of the Estate's electronic documents. The senior 

attorney determined from that review that no attorney, other 
6 A-5397-15T4

than those who left Riker and joined Sherman Wells, had accessed 

the electronic documents.3 

The following month, on May 25, 2016, the Estate filed a 

motion to disqualify Riker as plaintiffs' counsel. On June 10, 

2016, the trial court granted the motion, concluding the RPCs

mandated this result. The court noted the Analysis was 

protected information, and until walled off by IT personnel, it 

had been available to all Riker attorneys. In addition, the 

document had apparently been viewed, at least to some extent, by 

the Riker senior attorney.

Riker filed a motion for leave to appeal from the 

implementing disqualification order. We granted the motion. 

Although we did not stay the order, we have permitted Riker to 

 

3 The actions of the senior attorney and IT personnel were 

established on the disqualification motion record through 

Loalbo's certification, which was incompetent with respect to 

the document access issues, because it was not based on his

first-hand knowledge. R. 1:6-6 ("If a motion is based on facts 

not appearing of record or not judicially noticeable, the court 

may hear it on affidavits made on personal knowledge, setting 

forth only facts which are admissible in evidence to which the 

affiant is competent to testify . . . ."). We address this 

deficiency, infra. On appeal, Riker also attempted to 

supplement the appellate record with a second supplemental 

certification from Loalbo that had not been filed with the trial 

court. The Estate objected and moved to strike the second 

supplemental certification. In view of our disposition of this

appeal, we deem the issue moot, and deny the motion on that 

basis. 

 
7 A-5397-15T4

represent plaintiffs on the present appeal solely with respect 

to the disqualification issues. 

We turn to the parties' appellate arguments and our role in 

reviewing the trial court's order. A trial court's 

"determination of whether counsel should be disqualified is, as 

an issue of law, subject to de novo plenary appellate review." 

City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010) 

(citing J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. 

Super. 216, 222 (App. Div. 2006)). When reviewing such a 

determination, we must "'balance competing interests, weighing 

the need to maintain the highest standards of the profession 

against a client’s right freely to choose his counsel.'" Id. at

462 (quoting Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 

218 (1988)). As part of the balancing process, we recognize "'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.'" 

Ibid. (quoting Dewey, supra, 109 N.J. at 218). Therefore, 

"'[i]f there be any doubt as to the propriety of an attorney's 

representation of a client, such doubt must be resolved in favor 

of disqualification.'" Herbert v. Haytaian, 292 N.J. Super.

426, 438-39 (App. Div. 1996) (alterations in original) 

(citation omitted). 
8 A-5397-15T4

Situations such as the one before us, involving a lawyer 

terminating an association with a firm, are subject to RPC

1.10(b), which states:

[w]hen a lawyer has terminated an 

association with a firm, the firm is not 

prohibited from thereafter representing a 

person with interests materially adverse to 

those of a client represented by the 

formerly associated lawyer and not currently 

represented by the firm, unless: (1) the 

matter is the same or substantially related 

to that in which the formerly associated 

lawyer represented the client; and (2) any 

lawyer remaining in the firm has information 

protected by RPC 1.6 and RPC 1.9(c) that is 

material to the matter.

Here, Sylvester and other lawyers terminated their 

association with Riker and continued to represent the Estate. 

Riker now represents plaintiffs. Under the conflicts standards 

expressed in RPC 1.10(b), Riker is not disqualified unless both 

subsections (1) and (2) apply. The parties do not dispute the 

applicability of subsection (1), namely, the previous and 

current actions are the same or substantially related, nor do 

they dispute the Estate's electronic file contains protected 

material. Rather, they dispute the applicability of subsection 

(2), that is, whether, after Sylvester and the others left, "any 

lawyer remaining in the firm has [the] information" that is 

protected and material to the matter (emphasis added). 

Plaintiffs and Riker argue the phrase "has information" means 
9 A-5397-15T4

"has actual knowledge"; the Estate argues the phrase "has 

information" means "has access to"; and, alternatively, once a 

Riker senior partner actually accessed the analysis, he "had 

information" within the meaning of RPC 1.10(b)(2). 

We conclude with respect to the electronic file that

interpreting the phrase "has information" to mean "has actual 

knowledge or has accessed the electronic file" — subject to the 

narrow exception discussed infra concerning the process of

investigating whether a conflict exists — serves the purpose of 

the RPCs and strikes the proper balance between the "need to 

maintain the highest standards of the profession [and] a 

client’s right freely to choose his counsel." Trupos, supra, 

201 N.J. at 462.

The highest standards of the profession involved when this 

situation occurs are the maintenance of client confidentiality 

and the need to ensure that protected client information is not 

used to the detriment of a former client. "[T]he principle of 

attorney-client confidentiality imposes the inviolability of a 

sacred trust upon the attorney." State v. Land, 73 N.J. 24, 30 

(1977). The RPCs gird that principle by "generally forbid[ding] 

disclosure of client information, without the client's consent, 

unless one of the exceptions to the rule[s are] available." In 

re Advisory Opinion No. 544, 103 N.J. 399, 407 (1986). The RPCs
10 A-5397-15T4

also underscore the principle that an attorney may not use 

information obtained from a client to the detriment of that 

client. See, e.g., RPC 1.9(c)(1) ("A lawyer who has formerly

represented a client in a matter . . . shall not thereafter: . . 

. use information relating to the representation to the 

disadvantage of the former client . . . ."); RPC 1.10(c)(1)

("When a lawyer becomes associated with a firm, no lawyer 

associated in the firm shall knowingly represent a person in a 

matter in which that lawyer is disqualified under RPC 1.9 

unless: (1) the matter does not involve a proceeding in which 

the personally disqualified lawyer had primary responsibility;

(2) the personally disqualified lawyer is timely screened from 

any participation in the matter and is apportioned no part of 

the fee therefrom; and (3) written notice is promptly given to 

any affected former client to enable it to ascertain compliance 

with the provisions of this Rule.").

It is self-evident that an attorney cannot violate the 

sacred trust imposed by the principle of attorney-client 

confidentiality if the attorney has not represented the client, 

has not obtained information concerning the client or the 

client's matter, and has not accessed the client's file. Under 

such circumstances, the balance between the need to maintain the 

highest standards of the profession on the one hand, and a
11 A-5397-15T4

client’s right freely to choose counsel on the other, must be 

struck in favor of a client’s right freely to choose counsel. 

There is no danger in such situations of the highest standards 

of the profession being compromised, and there is consequently 

no reason to restrict the right of clients to freely choose 

their attorneys. 

That brings us to the Estate's argument that Riker should 

be disqualified because a senior attorney accessed the Estate's 

electronic file. This argument in turn implicates several other 

issues: why did the senior attorney access the electronic file, 

what exactly did the senior attorney access, and why were 

protected electronic documents not deleted? The answers to 

these questions and the ensuing analysis is compounded by the 

absence of certifications from the senior attorney and the IT 

personnel who assisted in accessing the electronic file. 

The parties do not appear to dispute the purpose of the 

Riker senior attorney's investigation, namely, to determine 

whether a conflict existed; nor do they appear to dispute that 

IT personnel were capable of determining when the electronic 

file had been accessed and by whom. If the Riker senior 

attorney merely accessed metadata associated with the file,

solely to determine if any lawyer other than Sylvester and those 

who left with him had accessed the file, then RPC 1.10(b) did
12 A-5397-15T4

not require Riker's disqualification.4 If the senior attorney

accessed the content of the Analysis or any other protected 

information, then the trial judge properly disqualified Riker. 

Accessing metadata that merely discloses who has accessed an 

electronic file does not result in an attorney having 

"information protected by RPC 1.6 and RPC 1.9(c) that is 

material to the matter." RPC 1.10(b)(2). 

Additionally, if the Riker senior attorney accessed only 

enough information in the electronic file to determine whether a 

conflict existed — such as viewing only the title of a document 

— and then accessed the metadata to see if any other attorney 

had accessed the file, Riker would not have been disqualified. 

Merely determining whether an electronic file contains protected 

information, as distinguished from reviewing the content of the 

information, does not result in an attorney having protected 

information proscribed by RPC 1.10(b)(2). Although accessing a 

file in other instances results in the imputation of proscribed 

knowledge, we do not interpret RPC 1.10(b) as prohibiting an 

 

4 See RPC 1.0 (p) (effective Sept. 1, 2016) (defining 

"metadata" as "embedded information in electronic documents that 

is generally hidden from view in a printed copy of a document . 

. . . Metadata may reflect such information as the author of a 

document, the date or dates on which the document was revised, 

tracked revisions to the document, and comments inserted in the 

margins"). 
13 A-5397-15T4

attorney from reviewing non-substantive information to determine 

whether a conflict exists, a determination attorneys are 

required to undertake, particularly where, as here, a former 

client makes an allegation of a disqualifying conflict. See 

also RPC 1.9 (regarding former clients). Adherence to these 

ethical principles is particularly important in the current 

legal market, in which lawyers and clients more frequently 

rotate from law firm to law firm than they had in the past.

Recent amendments and commentary to RPC 1.6 lend support to 

our decision. RPC 1.10(b) refers to information "protected by 

RPC 1.6 and RPC 1.9." RPC 1.6(d), adopted August 1, 2016, 

effective September 1, 2016, authorizes a lawyer to reveal 

information relating to a client "to the extent the lawyer 

reasonably believes necessary: . . . (5) to detect and resolve 

conflicts of interest arising from the lawyer's change of 

employment . . . but only if the revealed information would not 

compromise the attorney-client privilege or otherwise prejudice 

the client." RPC 1.6(d)(5) further provides that "[a]ny 

information so disclosed may be used or further disclosed only 

to the extent necessary to detect and resolve conflicts of 

interest." The Official Comment to new RPC 1.6(d)(5) states in 

pertinent part:
14 A-5397-15T4

Paragraph (d)(5) recognizes that 

lawyers in different firms may need to 

disclose limited information to each other 

to detect and resolve conflicts of interest, 

such as when a lawyer is considering an

association with another firm . . . . Under 

these circumstances, lawyers and law firms 

are permitted to disclose limited 

information, but only once substantive 

discussions regarding the new relationship 

have occurred. Any such disclosure should 

ordinarily include no more than the identity 

of the persons and entities involved in a 

matter, a brief summary of the general 

issues involved, and information about 

whether the matter has terminated. Even 

this limited information, however, should be 

disclosed only to the extent reasonably 

necessary to detect and resolve conflicts of 

interest that might arise from the possible 

new relationship. Moreover, the disclosure 

of any information is prohibited if it would 

compromise the attorney-client privilege or 

otherwise prejudice the client . . . . Any 

information disclosed pursuant to paragraph 

(d)(5) may be used or further disclosed only 

to the extent necessary to detect and 

resolve conflicts of interest.

[Pressler & Verniero, Current N.J. Court 

Rules, Official Comment on RPC 1.6 (2016).]5

In fairness to counsel, we are mindful these provisions did 

not exist when Riker internally reviewed the conflict issue in 

 

5 We also note that new subsection (f) of RPC 1.6 does not 

address an outgoing attorney's duties to reasonably assure his 

or her former firm will safeguard access to electronically 

stored information and what assurances should be made to clients 

affected by the transition. At oral argument on appeal counsel 

agreed this is a worthwhile subject to refer to the Advisory 

Committee on Professional Ethics. 
15 A-5397-15T4

April 2016. Nonetheless, these provisions inform our decision. 

Here, the Riker senior attorney needed to access the Estate's 

electronic file to determine whether any Riker attorney who 

remained after Sylvester left the firm had accessed the file, 

and possibly to determine from a review of the document titles 

whether any documents were protected. Reviewing anything more 

than the metadata concerning when the file was accessed, and 

perhaps a title to a document, would have unreasonably exceeded 

the need to determine the existence of a conflict. In such 

case, there would certainly be a doubt under RPC 1.10(b) as to 

the propriety of Riker's continuing representation of 

plaintiffs, and that doubt would be resolved in favor of 

disqualification. Herbert, supra, 292 N.J. Super. at 438-39. 

That brings into focus Riker's procedural non-compliance with 

Rule 1:6-6, which hinders our informed resolution of the access 

issue. 

"It bears emphasizing that '[a]ffidavits by attorneys of 

facts not based on their personal knowledge but related to them 

. . . constitute objectionable hearsay.'" Mazur v. Crane's Mill 

Nursing Home, 441 N.J. Super. 168, 179-80 (App. Div. 2015) 

(first alteration in original) (quoting Pressler & Verniero, 

supra, Official Comment on Rule 1:6-6). For that reason, "Rule

1:6-6 and its implicit prohibition – explicit in the rule's 
16 A-5397-15T4

comments – against attorneys filing certifications not based on 

firsthand knowledge serve a salient purpose. Attorneys should 

comply with the rule and the trial courts should enforce it." 

Id. at 181. 

Here, according to Loalbo's certification on the motion 

record, "a senior attorney at [Riker] was asked to review the 

law on disqualification and the facts surrounding this matter, 

including a review of the electronic information possessed by 

Riker, and whether or not anyone at Riker . . . other than the 

Sylvester Group, had accessed such information." In a footnote 

to that sentence, Loalbo noted: "Specifically, in conjunction 

with [Riker's] IT department, the senior attorney tasked with 

reviewing the information regarding conflicts was able to check 

the time stamps of when each protected document was last checked 

out by an attorney at Riker . . . ." Although the Estate 

apparently did not object to the admission on the motion record 

of this hearsay evidence, the Estate interpreted this portion of 

Loalbo's certification as an acknowledgment that the Riker 

partner reviewed the substantive content of the Analysis, as the 

Estate so asserted in a brief in opposition to plaintiffs' 

motion for leave to appeal. 

Had this lawsuit not been dismissed in its entirety by the 

trial court following our grant of leave to file this 
17 A-5397-15T4

interlocutory appeal, we would simply remand the matter, permit 

the parties to supplement the record, and direct the trial court 

to resolve the matter in a manner consistent with this opinion, 

conducting a hearing if necessary. The dismissal creates a 

dilemma. Plaintiffs intend to appeal the dismissal but need to 

know whether Riker can file the appeal. When the appeal is 

filed, the trial court will be divested of jurisdiction, absent 

an order of this court partially remanding jurisdiction to the 

trial court on discrete matters. To solve this dilemma, we 

order the following course of action.

First, Riker may file a notice of appeal of the dismissal 

order within thirty days of this opinion. The time for other 

filings in connection with that appeal shall be suspended until 

the disqualification issues are resolved. Second, concerning 

the possible conflict implicated by RPC 1.10(b), within twenty 

days of the date of this opinion, Riker shall serve and file 

with the trial court certifications from the senior attorney who 

accessed the electronic file and at least one IT person who 

assisted. The certifications shall generally describe the

information that was accessed and explicitly state whether the 

content of any protected information was accessed, including the 

Analysis. The certifications shall also state whether the 

protected information can be deleted, and if so, why it has not 
18 A-5397-15T4

been deleted; if not, why not. Lastly, the certifications shall 

address how those who accessed the file avoided reviewing the 

content of protected information.

In addition, Riker shall arrange to again access the 

Estate's electronic file, within thirty days, but in the 

presence of Sylvester and Sylvester's designated IT person, to 

determine whether anyone has accessed the file since Sylvester 

left Riker, other than the senior attorney who attempted to 

determine the existence of a conflict. The result of this joint 

exercise, if it confirms Riker's representations, will 

presumably provide some assurance to the Estate that no Riker 

attorney has confidential information material to the 

substantive issues in the underlying litigation. If the 

protected information can be deleted, it should be deleted,

unless for some reason Sylvester does not already have it. We 

expect the parties will agree as to what will be deleted, and 

urge them to do so. Absent agreement on deletion, the trial 

court shall resolve the issue. 

If this process reveals that the Riker senior attorney

actually reviewed the substantive content of confidential 

information, such as the substantive content of the Analysis,

then the matter shall be remanded to the trial court for the 

limited purpose of reinstating the disqualification order. On 
19 A-5397-15T4

the other hand, if there remains a bona fide factual dispute 

about this issue, the matter shall be remanded to the trial 

court for the limited purpose of conducting a hearing, if 

necessary, and disposing of the dispute. 

The trial court's June 10, 2016 disqualification order is 

consequently vacated subject to the terms and conditions we have 

specified. The matter is remanded for proceedings consistent 

with this opinion. We do not retain jurisdiction.