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-18-0231-12.

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, PC, 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NOT FOR PUBLICATION WITHOUT THE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." 

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.

June 8, 2018
2 A-2724-17T3

defendant Erica Kastell because an attorney, who mediated an 

earlier dispute in this post-judgment matrimonial matter, later 

became affiliated with the firm. We reverse because the order 

under review was based on considerations – the appearance of 

impropriety and plaintiff David Burkhardt's "discomfort" – that 

are not expressed 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 parenting time 

provisions; the firm represented Erica during that proceeding. The 

parties, however, disputed certain financial issues 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 addition 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 confidential 
3 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-support 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. To the latter's surprise, his letterhead 

revealed that Moloughney was "of counsel" to the firm. This 

prompted a demand that the firm cease representing Erica. When the

firm refused, David promptly – and successfully – moved for the 

firm's disqualification.

We granted Erica's motion for leave to appeal so we might

consider whether her due process rights 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 and 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, confirmed in writing." Without 
4 A-2724-17T3

doubt, Moloughney, who mediated an earlier dispute between these 

parties, could not represent Erica without David's consent, and 

there is no doubt consent was not given. That, however, does not 

end the matter.

The pressing question is not whether Moloughney may represent 

Erica – he may not – but whether the firm's other attorneys may 

represent her now that Moloughney is affiliated with the firm. RPC 

1.12(b) declares that upon disqualification of a firm attorney –

here, Moloughney – "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.

These conditions were met. Moloughney's relationship with the firm 

was known to David and his attorney. And the firm and Moloughney 

represented that the latter would be screened from any 

participation or involvement 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 firm 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 learned of Moloughney's affiliation

because of what counsel's letterhead revealed.
5 A-2724-17T3

These facts were not disputed, and the judge recognized that 

these 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 

parties' former mediator, because the mediation was recent 

(eighteen months earlier), and because of a "psychological . . . 

component," which the judge described in the following way:

When you're working with individuals in a 

mediator capacity . . . you get to know how 

that person ticks. You know where their weak

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 doing and how you go forward.

The judge also expressed concern about how the public might view 

the firm's continued involvement.

As noted, the firm represented that Moloughney would not 

share any information he possessed – that he was and would remain 

walled off from these proceedings. The judge recognized that, 

while this was undoubtedly true, such a wall "doesn't give [David] 

a comfort level." Consequently, the judge concluded that this

discomfort and the fact that, in the judge's view, a "reasonably 

objective person in the public realm" would not look with favor 
6 A-2724-17T3

on the firm's continued representation of Erica, warranted 

disqualification.

We reject the judge's thoughtful but mistaken analysis. The 

"appearance of impropriety" concept has been discarded. In re Sup. 

Ct. Advisory Comm. on Prof'l Ethics Op. No. 697, 188 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 crafted with 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 interests by 

insisting on the formation of a wall between the former mediator 

and the attorneys advocating on the client's behalf. All relevant

concerns are fully vindicated by application of the rule's actual 

terms. The judge erred by applying additional terms not expressly 

authorized by rule.

Reversed.