SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 2724
- 17T3 DAVID BURKHARDT,

Plaintiff

- Respondent,

v. ERICA KASTELL, f/k/a ERICA BURKHARDT , Defendant
- Appellant.

________________________________

Argued May 30 , 2018

– Decided Before Judges Fisher and Moynihan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM
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- 1 2 . Andrew M. Shaw argued the cause for appellant ( The DeTommaso Law Group , LLC, attorneys; Andrew M. Shaw, on the brief). Joanna R. Adu argued the cause for respondent ( Lyons & Associates, P C , attorneys; William P. Lemega and Joanna R. Adu, on the brief).
PER CURIAM We granted leave to appeal an order that disqualified The DeTommaso Law Group (the firm) from further acting as counsel for NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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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June 8, 20182 A - 2724
- 17T3

defendant Erica Kastell bec ause an attorney, who mediated an earlier dispute in this post

- judgment mat rimonial matter , later became affiliated with the firm . We reverse b ecause the or der under review was based on considerations

– the appearance of impropriety and plaintiff David Burkhardt's "discomfo rt"
– that are not express ed in RPC 1.12. We briefly describe the events giving rise to this dispute. The parties' 1996 marriage, which produced three children , was dissolved by a judgment that incorporated the parties' 2011 marital settlement agreement ( MSA). In February 2016, they entered into a post - judgment consent order that modified the MSA's p arenting time provisions ; t he firm represented Erica during that proceed ing. The parties, however, disputed certain financial issue s generated by the parenting

- time adjustment ; these disputes were referred to James Maloughney, Esq., a solo practitioner , for mediation . According to David,

[t] he mediation process took over two months, with countless discussions, emails and telephone calls between both parties and Mr. Maloughney, as well as an approximate three (3) hour mediation session at Mr. Moloughney's office [in] Somerville . . . . In addi tion to these communications, there was considerable documentation exchanged and provided to Mr. Moloughney, who was privy to all of my information and documentation as it pertained our ongoing disputes. As a disinterested third party serving as mediator, Mr. Moloughney was given access to my personal and confidential3 A - 2724
- 17T3 information, business records and personal files. What David described as "lengthy back and forth discussions" resulted in an April 28, 2016 consent order, which recalibrated David's child

- su pport obligation and modified other financial
matters . More than eighteen months later , a firm attorney wrote to David's attorney to suggest mediation of a number of issues, including child support. T o the latter's surprise, his letterhead
revealed that Mo loughney was "of counsel " to the firm. This prompted a demand that the firm cease repr esenting Erica. When t he firm refused , David promptly

– and successfully

– moved for the firm's disqualification. We granted Erica ' s motion for leave to appeal so we migh t consider whether her due process righ ts were damaged by depriving her of her chosen attorney and whether the motion judge erroneously applied RPC 1.12. We agree that the judge erred in disqualifying the firm an d reverse . RPC 1.12 governs this circumstance. Subsection (a) declares that "a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a . . . mediator . . . , unless all parties to the proceeding have given consent, co nfirmed in writing." Without4 A - 2724
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doubt , Moloug h ney, who mediated a n earlier dispu te between these parties, could not represent Erica without David's consent, and there is no doubt consent was not give n. T hat , however, does not
end the matter.
T he pressing ques tion is not whether Moloughney may represent Eric a – he may not

– but w hether the firm's other attorneys may represent her now that Moloughney is affiliated with t he firm. RPC
1.12 (b) declares that upon disqualification of a firm attorney

– here, Molough n e y – "no lawyer in [that firm] may knowingly undertake or continue representation in the matter unless":

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given [ 1 ] to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.
T hese conditions were met. Moloughney's relationship with the firm
was know n to David and his attorney. And th e firm and Moloughney represented that the latter would be screened from any participation or involveme nt in the matter .

1 This prompt

- notice requirement has no bearing here. It may be true that the firm did not immediately advise David's attorney of Moloughney's affiliation with the fi rm when or as it occurred, but there was then no pending matter between the parties . Once a dispute later arose between these post

- judgment matrimonial litigants, David immediately le arned of Moloughney's affiliation because of what counsel's letterhead re vealed.5 A - 2724
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These facts were not disputed, and the judge recognized that
the se elements for the firm's continued representation of Erica were firmly in place. He observed in his oral decision that "if the [c]ourt was to strictly . . . follow the letter of the RPC,

. . . [Erica 's] argument might be prevailing." But, the judge nevertheless disqualified the firm because Moloughney was the
par ties' former mediator, because the medi ation was recent ( eighteen months earlier ) , and because of a "psycholo gical . . . component," which the judge described in the following way:

When you're working with individuals in a mediator capacity . . . you get t o know how that person ticks. You know where their we ak spots are, where their anger spots are, where their strong parts and strengths [are]. . . . You have . . . the inside skinny. [There is] a significant advantage with regard to the knowing and the doin g and how you go forward. The judge also expressed concern about how the public might view the firm's continued involvement. As noted, t he firm represented that Moloughney would not share any information he possessed

– that he was and would remain
walled off from these proceedings . T he judge recognized that, while this was undoubtedly true, such a wall " doesn't give [David]

a c omfort level ." Consequently, the judge concluded that this disc omfort and the fact that, in the judge's view, a "reasonably objecti ve person in the public realm" would not look with favor6 A - 2724
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on the firm's c ontinue d representation of Erica , warranted disqualification . We reject the judge's thoughtful but mistaken analysis . The "appearance of impropri ety" concept has been discarded. In re Sup. Ct. Advisory Comm. on Prof'l Ethics Op. No. 697 , 1 88 N.J. 549, 568 (2006). And a party's " discomfort " in an adversary's retention of a particular attorney was not pronounced in RPC 1.12 as a ground for disqualification . We must bear in mind that RPC 1.12 was not only c rafted wit h a mind toward someone in David's position, but with the interests of someone in Erica's position as well . RPC 1.12 steers a course intended to protect both int erests by insisting on the forma tion of a wall between the for mer mediator and the attorneys advocating on the client's behalf. All relevant

concer ns are fully vindicated by application of the rule's actual terms. The judge erred by applying additional terms not expressly authorized by rule.
Reversed.