SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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J .G.S. , Plaintiff

- Respondent ,

v. L .M.S. , Defendant

- Appellant.

_________________________

Argued September 9, 2019

– Decided Before Judges Rothstadt and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L

- 1316

- 18. Rebekah R aye Conroy argued the cause for appellant (Stone Conroy LLC, and Williams Law Group, LLC, attorneys; Rebekah R aye Conroy and Victoria D. Miranda, of counsel and on the briefs).
Steve n M. Resnick argued the cause for respondent (Ziegler, Zemsky & Resnick, attorneys; Steven M. Resnick and Jonathan H. Blonstein , on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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December 6, 20192 A

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This matter arises from plaintiff J .G.S. 's action against defendant L .M.S. , 1
his ex

- wife, for defamation, intentional infliction of emotional distress, aiding the commission of a tort, and con spiracy , based on defendant's statements and conduct in the course of a n investigation by the Division of Chil d Protection and Permanency ( the DCP P). Prior to the order that is the subject of this appeal,
d efendant made a successful motion to disqualify plaintiff's law firm , Ziegler, Zemsky & Resnick, LLC (ZZR), based on the fact that an attorney at ZZR had previously represented d efendant in the DCP P matter

. Thereafter, on January 18, 2019, the trial judge granted reconsideration after determ ining that the disqualified attorney's conflict need not be imputed to the entire firm. Having reviewed the record in light of the governing legal principles, we conclude that ZZR's disqualification is mandated by the Rules of Professional Conduct ( RPC )
1 .10(c). Because the judge's decision on reconsideration was incorrect as a matter of law, we now reverse. In July 2017 , the DCP P initiated an investigation after receiv ing a report that plaintiff had abused one of the parties' children. On July 17, 2017, d efendant retained Williams Law Group, LLC (WLG) to represent her in

1 We use initials to preserve the confidentiality of the family. R. 1:38

- 3(d)(12) and (13).3 A

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connection with the DCP P 's investigation

. The retainer agreement specified that the legal services to be provide d were to ass ist in the resolution of the DCP P investigatio n. Parag raph 5 of the retainer specified that " Allison C. Williams , Esq. shall oversee managing your matter [ , and ] E lizabeth D. B urke, E sq. , and Associates shall be the attorney [s] predominately involved in your matter

. " 2 At least t hrough the end of July 2017, El izabeth Burke, an associate attorney at WLG, was the attorney predominately involved in defendant's matter and was defendant's main point of contact. Before meeting with defe n dant , Burke reviewed defendant 's file, which included a confidential six

- page journal detailing defendant 's " contemporaneous notes, thoughts, reflections, and observat ions of [her] children, [ J.G.S

. ] , and the DCPP investigation . . . ." On July 20, 2017, Burke met with defendant for over an hour, discuss ing family history, the DCP P 's investigation and interviews of the children, conversations with the family therapist, and legal strategy. Burke took notes about the investigation and the parties' children. After the meeting, Burke corresponded

2 A separate retainer agreement dated July 2018 indicated that the lega l services to be rendered pursuant to the retainer was a "Motion to Dismiss

– Civil Complaint." Paragraph 5 of that retainer, specified that " Allison C. Williams , Esq. , shall oversee managing your matter, and V ictoria D. M iranda , E sq. , and Associates shall be the attorneys predominately involved in your matter."4 A

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with defendan t , discussin g the DCP P 's investigation, plaintiff 's actions related to the children , and legal strategy. Burke also communicated with the DCP P , the Morris County Prosecutor's Office , a nd various healthcare providers on defendant 's behalf . Bur ke's representation of defendant ended when Burke left WLG to join ZZR, the firm representing plaintiff in the current action

. Burke has been employed at ZZR since leaving WLG. In July 2018 , plaintiff , represented by ZZR, filed the instant complaint, allegin g that defendant made defamatory statements about him in connection with the DCP P 's 2017 investigation . H e further alleged that defendant aided and conspired with others to interfere with his custodial and parenting time rights and that her actions consti tute d intentional infliction of emotional distress. Thereafter, defendant filed a motion to disqualify ZZR from representing pl aintiff in his action against her

. In support of the motion, defendant certified that "Burke was the attorney primarily handling my matter and had given me

a dvice regarding not only the DCP P matter, but also how to handle same within the context of our custody and parenting time arrangement

– the very same issues that are the crux of [p]laintiff's [c]omplaint agai nst me." In opposing disqualification , S teven M. Resnick certified the following:

[W] hen Burke joined my firm over a year ago, there was no litigation between my firm and the [ WLG ] as to5 A

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switching" of th e a ssociate at that time. The . . . parties were involved with the DCP P in the time period in issue during the very early stages of the confidential investigation. The matrimonial post judgment litigation did not begin until the end of September 2017, well after Burke left the [WLG] firm. The instant matter is a diffe rent matter in the civil court. In addition, Resnick questioned WLG's assertion that Burke was "primarily" responsible for defendant's file. Resnick argued that the claim she was primarily

re sponsibl e "did not even make sense . . . given her skill level that require s supervision as to any decision making on a file or certainly before any legal advice would be provided ." Burke also submitted a certification opposing disqualification , in which she denied involvement in defendant's case, and she averred,

I have absolutely no memory at all of an y confidential information [de fendant] may have provided to me if she did, and I did not retain any information (confidential or o therwise) that she may have provided. I have barely any memory of any information related to the case

. In fact, I doubt I could even pick [d]efendant out in a crowd. I can attest without hesitation that I possess zero confi dential information as to [d ]ef endant as to any matter. Confronted with copies of her timesheets from WLG, however, Burke submitted a second certification, in which she acknowledged her involvement in defendant's DCPP matter while an associate at WLG , as described above, though6 A

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cont inuing to maintain that there was no prejudice to defendant because she currently has no memory of the details of her past representation of defendant

. On October 22, 2018, the judge granted defendant 's disqualification motion

. The judge found that ZZR's representation of plaintiff violated RPC 1.9(a) because "Burke's firm now represents [plaintiff] in a 'substantially related' matter where [plaintiff 's ] interests are now 'materially adverse' to those of the for mer client, [defendant] ." The judge im puted this conflict to ZZR pursuant to RPC 1.10 . He determined the conflict could not be waived under RPC 1.10(c) because Burke was the attorney predominately inv olved with the DCP P 's investigation, which i s the same matter at issue in plaintiff's action against defendant

. He also noted that ZZR did not provide defendant with written notice of the conflict. 3 Thereafter, plaintiff filed a motion for reconsideration. In opposition, defendant explained in greater detail Burke's involvement with the prior ma tter and provided additional documentation in support of her assertion that Burke

3 It is undisputed that ZZR did not timely discover the conflict of interest through effective screening procedures. Because we do not find that failure to be a dispositive factor in this case, it is unnecessary to address defendant's argument that the procedural deficiency is an independent basis for ZZR's disqualification.7 A

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had received confidential inform ation. Significantly, she include d two invoices listing the work that Burke had done , and she attached, under seal, the
confidential six

- page journa l she had provided for Burke's review prior to their first meeting. Defendant 's attorney also provided, under seal, a copy of the notes Burke took d uring her meeting with defendant

. 4 The j udg e granted plaintiff 's motion and revers ed his prior decision. The judge concluded that although Burke undeniably had a conflict under RPC 1.9(a), he nevertheless decided not to impute the conflict to the entire firm because ZZR " did not ' knowingly ' repres ent a person in a matter in which another lawyer at the firm is disqualified

. " Despite ZZR's failure to notify defendant of the conflict, as required by RPC 1.10(c)(3), the judge found that,
upon balancing the parties' interests , it would be more inequitable to bar ZZR from rep resenting plaintiff . To remedy the prejudice to defendant , t he judge instructed ZZR to screen Burke from any activity related to plaintiff 's matter and
to refrain f

rom using any evidence that may have been derived from Burke's prior attorney

- client relationship with defendant

.

4 Burke's notes and defendant's journal were provided to this court under seal. There is no need, h owever, to discuss the content of the documents, which were not provided to plaintiff, as Burke's own certification and her timesheets suffice to establish her representation of defendant.8 A

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On appeal, defendant argues that the judge erred in reversing his decision to disqualify ZZR from repre senting plaintiff. Defendant avers that permi tting ZZR to represent plaintiff fails to enforce the rules governing conflicts of interest , prejudices defendant , and undermines public confidence in the integrity of the bar

. Plaintiff counters that Burke could not have been the WLG attorney primarily handling the file, based on her a lleged inexperience and status as an associate. We review a grant of a motion for reconsideration for abuse of discretion.
See Guido v. Duane Morris LL P , 202 N.J. 79, 87 (2010) (citation omitted)

. A motion for reconsideration "shall state with spec ificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooke d or as to which it has erred

. " R. 4:49

- 2. Reconsideration shou ld be utilized only for those cases

which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to a ppreciate the significance o f probative, competent evidence. [ Cummings v. Bahr , 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria , 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]9 A

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We review a trial judge's decision on a disqualification motion de novo. City of Atlantic City v. Trupos , 201 N.J. 447, 463 (2010)

. Therefore, we need not defer to the trial judge's decision. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan , 140 N.J. 366, 3 78 (1995). We must weigh " ' the nee d to maintain the highest standards of the [legal] profession ' against ' a client's right freely to
choose his counsel. ' " Dewey v. R.J. Reynolds Tobacco Co. , 109 N.J. 201, 205 (1988) (alteration in original) (quoting Gov't of India v. Cook Indus., Inc. , 569 F.2d 737, 739 (2d Cir. 1978)). RPC 1.9 (a) pro hibits "[a] lawyer who has represented a client in a matter [from] thereafter represent [ing] another client in the same or a substantially related matter in which that client's interests are materially adv erse to the interests of the former client unless the former client gives informed consent confirmed in writing. " Matters are substantially related if

(1) the lawyer for whom disqualification is sought received confidential information from the former cl ient that can be used against that client in the subsequent representation of parties adverse to the former client, or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation. [ Trupos , 201 N.J. at 451

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We note the judge correctly found that the circumstances in this matter constitute a conflict of interest under RPC 1.9(a). Plaintiff's argument that the tort case and the DCP P case are "different matters" is unavailing, as plaintiff's civil compla int is entirely premised on defendant's state ments and conduct during the DCP P 's investigation. Defendant's statements to Burke about plai ntiff, the children, and the DCP P and criminal investigations are clearly relevant and material to plaintiff's presen t claims that defendant made defamatory state ments about him and used the DCP P investigation to interfere with his custodial rights. See Trupos , 201 N.J. at 451

- 52. In addition, we conclude that Burke, by her own admission, obtained confidential information from defendant while an associate at WLG. A conflict arose once she obtained the confidential information, and the fact that she only
handled the matter for a fe w weeks is not sufficient to cure the conflict. Nor is the fact that Burke has no present recollection of her past representation sufficient to cure the undisputed fact that Burke herself could not participate in plaintiff's representation at ZZR.
We now turn to the judge 's conclusion on reconsideration that Burke's indisputable conflict need not be imputed to the firm. RPC 1.10(a ) generally precludes any other lawyer employed by the disqualified attorney's firm from11 A

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"knowingly represent[ing] a client whe n any one of them practicing alone would be prohibited from doin g so by

. . . RPC 1 .9 ." In concluding that ZZR could continue its representation, the trial judge relied on the fact that ZZR did not know Burke had a conflict with respect to plaintiff.
Howe ver, irrespective of ZZR's subjective ignorance of Burke's conflict, another lawyer in the disqualified attorney's firm may represent the client only if three requirements are met:

(1) [T] he matter does not involve a proceeding in which the personally dis qualified 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. [RPC 1.10(c).] Although w e find that none of the three requirements were satisfied in this

case, we conclude that RPC 1.10(c)(1) alone requires ZZR's disqualification. "'Primary responsibility' denotes actual participation in the management and direction of the matter at the policy

- making level or responsibility at the operational level as manifested by the continuous day

- to

- day responsibility for12 A

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litigation or transaction decisions

. " R PC 1.0(h) (emphasis added). ZZR's argument that Burke could not have been "primarily responsible" for defendant's
the DCP P matter because she was not the partner assigned to the file is unavailing, as she clearly ha d responsibility at an operational level on a day

- to

day basis, even if she was subject to a managing partner's supervision. We conclude that the trial judge's decision on the initial disqualification motion represented a correct application of the RPC , a nd his decision to later

revers e that disqualification based on a balancing of the equities was not permitted by the rules. Because the judge's decision on reconsideration was incorrect as a matter of law, we are constrained to reverse. Reversed.