[Doc. No. 18]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

SHELLY MARTIN, et al.,

Plaintiffs,

v.

ATLANTICARE, et al.,

 Defendants.

Civil No. 10-6793 (JHR/JS) 

OPINION

After Lisa Grosskruetz, Esquire, did substantial substantive

defense work on this case while employed by defendants’ law firm,

Morgan, Lewis and Bockius, LLP (“Morgan”), she left Morgan and went

to work for plaintiffs’ law firm, Costello & Mains, P.C. The

question before the Court is whether Costello & Mains should be

disqualified because it employed a side-switching attorney. Under 1

the circumstances presented herein the answer is an emphatic yes. 

Accordingly, defendants’ Motion to Disqualify Plaintiffs’ Counsel

is GRANTED. 

“A side-switching attorney is one who formerly represented a

1

client in a matter and subsequently undertakes representation, or

affiliates herself with a firm that has undertaken representation,

of an adversary in a related matter.” Pallon v. Roggio, Civ. Nos.

04-3625 (JAP), 06-1068 (FLW), 2006 WL 2466854, at *4 (D.N.J. Aug.

24, 2006).

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Discussion

Fact Background

Plaintiffs Shelly Martin (“Martin”), Karla Mayfield and Donna

Davis filed this lawsuit on October 28, 2010 in the Superior Court

of New Jersey. The case was removed to federal court on December

28, 2010. All plaintiffs allege, inter alia, that defendants

discriminated and retaliated against them because of their race and

ethnicity. Plaintiff Martin also alleges that her employer, ARMC, 2

violated the New Jersey Wage and Hour Law and the Fair Labor

Standards Act by not paying her for work in excess of forty hours

per week. Martin brings this claim on behalf of herself and as a

“collective action” on behalf of similarly situated workers.

Plaintiffs are represented by Costello & Mains (“CM”). The 

managing partner of the firm is Kevin Costello (“Costello” or

“KC”). Defendants are represented by Morgan. As noted, the sideswitching attorney at issue is Lisa Grosskruetz (“LG”). At the

inception of the case, defendants’ defense was coordinated by a

three-attorney team at Morgan. The supervising partner-in-charge

was Richard Rosenblatt, Esquire (“RR”). The other attorneys on the

original defense team were LG and Prashanth Jayachandran, Esquire,

(“PJ”). LG started working for Morgan on November 22, 2010 after

having litigated employment matters in New Jersey for 23 years. PJ

has been admitted to practice for 12 years and has extensive

The defendants are AtlantiCare Regional Medical Center 2

(“ARMC”), Caroline Baier and Rose Uhland. The defendants will be

collectively referred to as AtlantiCare.

2

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experience representing employers in wage and hour class and

collective actions.

According to her time records LG started working on this case

for Morgan on November 24, 2010. LG left Morgan on March 4, 2011.3

During the approximately 41⁄2 months she was employed at Morgan LG

worked 108.2 hours on the case. During the same time period RR

worked only 13.1 hours on the case and PJ worked 49.6 hours. See

PJ Declaration ¶3. This motion to disqualify arises from the fact

that after LG left Morgan on March 4, 2011, she started working for

CM on March 7, 2011. See LG Declaration ¶1. LG subsequently left 4

CM on April 15, 2011 and is no longer working for the firm.5

Defendants were not notified of LG’s side-switching before LG

started working at CM. Defendants first learned that their former

defense counsel was employed at their adversary’s law firm when PJ

noticed LG’s name on CM’s letterhead. 

The parties do not dispute that LG is disqualified from

representing plaintiffs pursuant to New Jersey Rule of Professional

Although LG alleges she left Morgan on March 4, 2011 (see LG 3

Declaration ¶1), defendants allege she left on March 1, 2011. See

PJ Declaration ¶9. This discrepancy is not material to the Court’s

decision.

Defendants do not allege that LG worked on the case while she 4

was employed by CM. Defendants also do not allege that LG revealed

any privileged information or client confidences to CM.

While LG was working for Morgan, Costello initiated the 5

discussions about her coming to work for him. See Transcript

(“Tr.”) of July 18, 2011 Oral Argument 24:6-10. During the call

Costello learned that LG was apparently dissatisfied with her work

at Morgan. Id. 36:2-19.

3

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Conduct (“RPC”) 1.9. Defendants argue that since LG is disqualified

from representing plaintiffs, the disqualification should be

imputed to CM pursuant to RPC 1.10. Defendants argue LG had

“primary responsibility” for the defense of this matter while she

was employed at Morgan and therefore she cannot be adequately

screened. Defendants also argue that even if LG did not have

primary responsibility CM still must be disqualified because LG was

not adequately screened. In addition, defendants argue

disqualification is appropriate because they did not receive timely

written notice of LG’s side-switching. Plaintiffs dispute that LG

had primary responsibility for defendants’ defense while she worked

at Morgan. Plaintiffs also argue LG was adequately screened and

that defendants received timely notice of LG’s side-switching.

Motions to Disqualify

In the District of New Jersey, issues regarding professional

ethics are governed by L. Civ. R. 103. 1(a). This Rule provides

that the Rules of Professional Conduct of the American Bar

Association as revised by the New Jersey Supreme Court shall govern

the conduct of members of the bar admitted to practice in the

District. See L. Civ. R. 103.1(a); Carlyle Towers Condo. Ass'n,

Inc. v. Crossland Sav., FSB, 944 F.Supp. 341, 344-45 (D.N.J. 1996). 

When deciding a motion to disqualify counsel the movant bears the

burden of proof that disqualification is appropriate. City of

Atlantic City v. Trupos (“Trupos”), 201 N.J. 447, 462-63 (2010);

Maldonado v. New Jersey, ex rel., 225 F.R.D. 120, 136-37 (D.N.J.

4

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2004). The movant’s burden is a heavy one since “[m]otions to

disqualify are viewed with ‘disfavor’ and disqualification is

considered a ‘drastic measure which courts should hesitate to

impose except when absolutely necessary.’” Alexander v. Primerica

Holdings, Inc., 822 F.Supp. 1099, 1114 (D.N.J. 1993) (quoting

Schiessle v. Stephens, 117 F.2d 417, 420 (7th Cir. 1983) (internal

quotation marks and citation omitted)). Nevertheless, “a motion

for disqualification calls for [courts] 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.” Trupos, 201 N.J. at 462 (citing Dewey v. R. J. Reynolds

Tobacco Co., 109 N.J. 201, 218 (1988). In weighing this balance

the Court is mindful that “there is no right to demand to be

represented by an attorney [or law firm] disqualified because of an

ethical requirement.” Id.

When determining whether to disqualify counsel the Court must

closely and carefully scrutinize the facts to prevent unjust

results. Montgomery Acad. v. Kohn, 50 F.Supp.2d 344, 349 (D.N.J.

1999). In Steel v. Gen. Motors Corp., 912 F.Supp. 724, 733 (D.N.J.

1995) (citation omitted), the court noted that its balancing

“involves a ‘painstaking analysis of the facts and precise

application of precedent.’” Id. In addition, “[t]he decision

whether to disqualify a law firm by imputation is best undertaken

on a case-by-case basis, weighing the facts as they exist at the

time the motion to disqualify is made. New Jersey courts have

5

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consistently eschewed per se rules of disqualification, stressing

the ‘fact-sensitive nature’ of a decision to disqualify counsel.”

Cardona v. Gen. Motors Corp., 942 F.Supp. 968, 976 (D.N.J. 1996).

Since disqualification issues are intensely fact-specific, it

is essential to approach such issues with a sense of practicality

as well as a precise understanding of the underlying facts. Murphy

v. Simmons, Civ. No. 06-1535 (WHW), 2008 WL 65174, at *5 (D.N.J.

Jan. 3, 2008)(citation and quotation omitted). Accordingly, the

Court scrutinized the parties’ detailed submissions and is deciding

defendants’ motion based on the extensive written record and oral

argument. The record includes the Declarations of Rosenblatt, 6

Jayachandran, and Donna Michael-Ziereis, Esquire (defendants’

Associate General Counsel). The record also includes the

Certifications of Grosskreutz, Costello and Deborah L. Mains,

Esquire. In addition, the Court reviewed in camera Morgan’s bills

from November 22, 2010 to February 28, 2011, which include each

timekeeper’s contemporaneous descriptions of his or her work. The

Court also reviewed in camera a representative sample of LG’s

privileged e-mails while she worked at Morgan.

In order to decide defendants’ motion it was not necessary to

hold a formal evidentiary hearing or to hear LG’s live testimony. 

New Jersey case law is quite clear that a motion to disqualify

should ordinarily be decided on the basis of affidavits and

Oral argument was held on July 18, 2011 [Doc. No. 35] and 6

September 15, 2011 [Doc. No. 45]. The transcripts are available on

the court’s docket.

6

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documentary evidence except where “the court cannot with confidence

decide the issue on the basis of the information contained in those

papers....” Dewey, 109 N.J. 201, 222 (1988). In Dewey the Court

also noted that “a hearing should be held only when it is

indispensable to resolution of the [disqualification] issue.” Id.

This is necessary to protect against the revelation of client

confidences which the RPC’s are designed to protect. Id. at 222-

23. Given the detailed record, the Court determined that live

testimony was not necessary.

RPC 1.9 and 1.10(c)

RPC 1.10(c) provides the framework for deciding defendants’

motion. This RPC reads: 7

(c) 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.

As RPC 1.10(c) dictates, the Court must first determine whether LG

is disqualified under RPC 1.9, which governs duties to former

clients. RPC 1.9 provides:

The “appearance of impropriety” is not germane to the Court’s 7

conflict analysis as this factor was eliminated in the 2004

amendments to the RPC’s. Trupos, 201 N.J. at 464. 

7

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(a) A lawyer who has represented a client in a

matter shall not thereafter represent another

client in the same or a substantially related

matter in which that client’s interests are

materially adverse to the interests of the former

client unless the former client gives informed

consent confirmed in writing.

(b) A lawyer shall not knowingly represent a person

in the same or a substantially related matter in

which a firm with which the lawyer formerly was

associated had previously represented a client, (1)

whose interests are materially adverse to that

person; and

(2) about whom the lawyer, while at the former

firm, had personally acquired information protected

by RPC 1.6 and RPC 1.9(c) that is material to the

matter unless the former client gives informed

consent, confirmed in writing.

As has previously been discussed, LG joined CM immediately after

leaving Morgan where she worked on the defense of the present case.

Although plaintiffs minimize LG’s role while at Morgan, they

acknowledge that LG is disqualified from working on the case

pursuant to RPC 1.9(a) and (b). 

Having determined that LG is disqualified from representing

plaintiffs pursuant to RPC 1.9, the pertinent issue becomes 

whether LG’s disqualification is imputed to CM. To make this

determination the Court must assess the three elements of RPC

1.10(c). First, whether LG had primary responsibility for the case

while she worked at Morgan. Second, whether LG was adequately

screened upon joining CM. Third, whether timely notice was

provided to defendants of LG’s side switching. The Court must

conduct a “painstaking analysis of the facts” as to each of these

elements. See Dewey, 109 N.J. at 205 (citation and quotation

8

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omitted). 

“Primary Responsibility”

The focus of the parties’ arguments centers on whether LG had

primary responsibility for the defense of the litigation while she

was employed at Morgan. Primary responsibility is defined in the

“terminology” section of the RPC’s as “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 for litigation or transaction

decisions.” RPC 1.0(h). Since “surmise alone” cannot support

disqualification, Trupos, 201 N.J. at 469, the evidence will be

closely analyzed to determine if LG had primary responsibility.

If the Court determines that LG had “primary responsibility”

while at Morgan its inquiry is complete and defendants’ motion must

be granted. Pursuant to RPC 1.10(c)(1), an attorney with primary

responsibility cannot be screened at her new firm. See In re

Gabapentin Patent Litigation (“Gabapentin”), 407 F.Supp.2d 607, 611

(D.N.J. 2005)(screening of individual attorneys from involvement in

a case at the firm was insufficient alone to overcome the imputed

disqualification, where the individuals had primary responsibility

in the same matter while acting as counsel for the opposing party). 

The 2004 amendments to the RPC’s, which added a screening

option to RPC 1.10, “constitute[d] a major change in New Jersey’s

approach to the question of imputed disqualification in the context

of representation adverse to a former client.” Kevin H. Michels,

9

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New Jersey Attorney Ethics: The Law of New Jersey Lawyering, §

24:3–1 at 583 (2010)(hereinafter “Michels”). Pursuant to the

present version of RPC 1.10: 

an attorney who worked on the matter while at the prior firm,

but who did not have “primary responsibility,” can be screened

from the matter after switching to the new firm.... If the

attorney had primary responsibility for the matter before

switching firms, however, screening would not cure the imputed

conflict.8

Id. 

If LG did not have primary responsibility, the Court must then

analyze RPC 1.10(c)(2)and (3). If LG was adequately screened and

is not apportioned a fee from the case, and if adequate written

notice was given to her affected former client, e.g., AtlantiCare,

then defendants’ motion should be denied. See Michels, supra 9

(“The attorney’s limited, peripheral involvement with the adverse

party before switching firms would not prevent the new firm from

continuing in the matter if the attorney were properly screened”).10

The ABA’s Model Rules of Professional Responsibility (“MRPC”) 8

do not contain a screening provision in RPC 1.10(c). An amendment

to Model Rule 1.10 that would have approved screening in additional

contexts was proposed and rejected in 2001. ABA/BNA Lawyer’s Manual

on Professional Conduct, 17 Current Reports 492, 494 (Aug. 15,

2011). Nevada and Indiana adopted RPC’s that mirror New Jersey’s

rule using the term “primary responsibility.” See Nev. R. Prof’l

Conduct 1.10(e)(1); Ind. R. Prof’l Conduct 1.10(c)(1).

Since defendants do not allege that LG was apportioned an 9

improper fee, the fee issue will not be addressed herein.

Because of the change in the RPC’s, the viability of the 10

following quote in Dewey, 109 N.J. at 220, is doubtful as

applicable to the imputed disqualification issue: 

We cannot conceive of any situation in which the sideswitching attorney or his new firm would be permitted to

continue representation if, unlike the situation before us,

10

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Plaintiffs and LG minimize LG’s role while at Morgan. LG

alleges she “was assigned to perform certain limited tasks with

regard to this matter.” LG Certification ¶1 (“LG Cert.”). 

Plaintiffs argue, “the work Ms. Grosskreutz performed while an

associate at Morgan Lewis concerned nothing more than review of

mostly irrelevant and/or discoverable documents and interviews of

witnesses that elicited discoverable information.” Brief in

Opposition (“Opp. Brief”) at 8. See also Supplemental Brief in

Opposition (“Supp. Brief”) at 9.

Defendants present a drastically different view of LG’s role. 

Defendants argue, “Ms. Grosskreutz was an integral part of the

defense team and she was ‘intimately involved in defendants’ legal

strategy.’” Memorandum of Law in Support of Defendants’ Motion

(“Memo. of Law”) at 1. Defendants further argue, “Ms. Grosskreutz’

hours were spent receiving and analyzing privileged and

confidential information, being privy to defendants’ litigation

strategy, and assisting in tactical development of Defendants’

defense.” Id. at 10. In addition, defendants argue, “Ms.

Grosskreutz was an important member of the defense team. She had

primary responsibility because (1) she worked more than any other

lawyers on this matter combined during the initial investigating

and pleadings phase and (2) she was privy to confidential work

product material during her representation of Defendants.” Reply

the attorney had in fact actually represented the former

client or had acquired confidential information concerning the

client’s affairs. (Emphasis in original).

11

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Memorandum of Law in Support of Defendants’ Motion to Disqualify

(“Reply Memo.”) at 4.

Plaintiff’s characterization of LG’s role at Morgan as

“limited” does not comport with the evidence. This is illustrated

by the fact that from November 2010 to March 2011 LG worked 108.2

hours on the case, almost twice as many hours as the combined total

of the other two members of the Morgan defense team. Further, LG’s

Certification supports defendants’ argument that she played an

integral role while at Morgan. LG acknowledges that she prepared

all or part of defendants’ removal papers and motion to dismiss, 

reviewed client documents for relevancy, consulted with defendants’

in-house counsel, prepared witness outlines, interviewed

defendants’ witnesses, prepared witness summaries, and spoke with

plaintiffs’ counsel. LG’s contemporaneous time billing entries

also contradict her allegation that she only performed “limited

tasks.” LG Cert. ¶1. According to her billing entries LG

researched relevant legal issues, prepared legal papers, analyzed

plaintiffs’ complaints, reviewed background investigation materials

about plaintiffs provided by the client, exchanged e-mails with the

client, reviewed client documents, prepared representation letters,

analyzed plaintiffs’ discovery directed to defendants, reviewed and

analyzed plaintiffs’ personnel files with regard to the defense of

their discrimination claims, prepared witness outlines, interviewed

witnesses, prepared witness summaries, communicated with her

clients about plaintiffs, and identified relevant and responsive

12

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documents. These are hardly “limited” roles. LG’s descriptions

evidence that she played a substantial and substantive role in

AtlantiCare’s defense.

Defendants’ Declarations provide further evidence of LG’s

integral defense role. RR provided Morgan’s strategic leadership. 

RR Declaration ¶5. RR alleges that LG was “intimately involved in

every facet of the defense” (id. ¶6) and that she “took an active

operational role in almost all aspects of [Morgan’s] defense of

this matter” (id. ¶7). RR also states that the Morgan team would

“make collaborative decisions as to how to address issues arising

in the case” (id. ¶6). In addition, RR stated that LG would make

recommendations for how to proceed with AtlantiCare’s defense (id.)

and he would brief LG on his communications with the client (id.

¶9). RR’s staffing plan was for LG and PJ “to share primary

responsibility for the day-to-day operational management of the

case with [his] oversight and direction as needed.” Id. ¶4. RR

expected that eventually LG “would assume virtually the sole dayto-day lead operational role” by the time PJ became fully involved

in another case pending in Boston. Id. RR explained that given

LG’s experience “the staffing plan was to have [LG] handle the bulk

of the day-to-day case handling.” Id.

AtlantiCare’s in-house counsel corroborates Morgan’s

Declarations. She swore:

Lisa Grosskreutz, a former Morgan Lewis associate,

was actively representing AtlantiCare and the

individual defendants in this case during her

tenure at Morgan Lewis. We sent volumes of

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documents and materials to Morgan Lewis related to

the case, which Ms. Grosskreutz reviewed. Ms.

Grosskreutz also interviewed several witnesses. 

She communicated with me regarding her witness

interviews and her review of documents related to

this case. I also spoke with Ms. Grosskreutz

regarding our legal strategy and our internal

efforts to collect relevant documents. In

addition, Ms. Grosskreutz is aware of AtlantiCare’s

investigation into matters raised by the Complaint.

Declaration of Donna Michael-Ziereis, Esquire ¶3.

LG’s e-mails also evidence her integral defense role. The emails demonstrate that the Morgan defense team and AtlantiCare

regularly communicated about the status of the case and defense

strategies. The e-mails also demonstrate that LG was privy to

information protected by the attorney-client privilege and workproduct doctrine. In addition, the e-mails show that LG provided

her strategic input on different employment related issues.

The foregoing evidence demonstrates to the Court that LG’s

actions fit squarely within the meaning of the term “primary

responsibility” as the term is defined in the RPC’s. In order to

have primary responsibility it was not necessary for LG to be the

supervising attorney on the file or the partner in charge of the

file. This is evident by the fact that the applicable definition

merely requires “participation” in the “management and direction of

the matter at the policy-making level.” LG plainly “participated”

in the management of the case as she took the “laboring oar” in

AtlantiCare’s defense and she regularly consulted with the Morgan

defense team about defense strategy. Further, as PJ was “out of

pocket” in February 2011, and RR’s role at the time was minimal, LG

14

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was essentially responsible for AtlantiCare’s entire defense before

she left Morgan. LG also had “responsibility at the operational

level” as manifested by the “continuous day-to-day responsibility

for litigation or transaction decisions.” This is evidenced by

LG’s regular and continuous work on the file from when she started

at Morgan to when she left. Given the breadth of her work and the

number of hours she worked on the case, it cannot be reasonably

challenged that LG had operational and decisional responsibilities. 

The Court finds that LG had “primary responsibility” even though

she was not the “supervising attorney” on the file and even though

she shared defense responsibility with her colleagues. 

The term “primary responsibility” has not been extensively

addressed in the case law. Nonetheless, the decision in United

States of America v. Pelle, No. CRIM. 05-407 (JBS), 2007 WL 674723

(D.N.J. Feb. 28, 2007), discusses the issue in detail. In Pelle, 11

the defendant sought to substitute new counsel, United Defense

Although the decision in Gabapentin, supra, is relevant, it 11

is not, as defendants argue, controlling. That case primarily

addressed whether different clients in a joint defense group waived

a conflict. Waiver is not an issue in this case. Unlike this

Opinion, Gabapentin did not specifically analyze whether the sideswitching attorneys had primary responsibility within the meaning

of RPC 1.10(c)(1). For purposes of its waiver analysis the Court

assumed the attorneys had such responsibility because they were

“fully engaged in and primarily responsible for the pretrial

representation of [their client], and in the course thereof, were

privy to confidential attorney work-product and privileged

information....” 407 F. Supp. 2d at 609. Nevertheless, the

decision is persuasive because the disqualified attorneys in

Gabapentin did similar work to LG, e.g., they collected testimonial

and documentary evidence, analyzed legal issues in prepartion for

dispositive motions, participated in defense meetings, and

established and executed defense strategy. See id.

15

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Group (“UDG”) of Studio City, CA, to represent him over the

objections of the United States. Before they joined UDG, two UDG

attorneys, Lorilee and Angelyn Gates, represented “CW”, a

confidential witness who was expected to testify against Pelle at

trial. This representation occurred while Lorilee and Angelyn were

employed by CW’s law firm, Criminal Defense Associates (“CDA”) of

Woodland, CA. The issue presented was whether the conflict that

prevented Lorilee and Angelyn from representing Pelle was imputed

to the UDG law firm pursuant to RPC 1.10(c).

The evidence in Pelle demonstrated that after CW was arrested,

Lorilee traveled to New Jersey for CW’s detention hearing and spoke

with CW for 30 minutes to prepare for the hearing. At the hearing

CW was released on conditions of bail. Thereafter, CW and Lorilee

had no contact. While at CDA, Angelyn made telephone calls to

gather preliminary information. She was not sure if she spoke with

CW. Neither Lorilee or Angelyn worked on Pelle’s defense after

they left UDG to work at CDG. After Lorilee and Angelyn left UDG

to work for CDG, CW pleaded guilty to a conspiracy pursuant to 18

U.S.C. §2423(e) and named Pelle as his co-conspirator. CW was

expected to testify as a material witness for the government in the

case against Pelle. Pelle’s proposed new trial counsel at UDG

averred that he never spoke with Lorilee and Angelyn about the

Pelle case or their representation of CW. UDG argued that despite

employing CW’s former attorneys, they could represent Pelle if the

attorneys were screened from any participation in Pelle’s defense. 

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The United States objected to the representation.

As an initial matter, the court ruled that Lorilee and Angelyn

should be disqualified from representing Pelle. Id. at *4. The

Court then examined whether the disqualification was imputed to CDG

pursuant to RPC 1.10. In this regard the Court focused on whether

Lorilee and Angelyn had “primary responsibility” for defending CW. 

The court defined the term as follows:

The term “primary responsibility” in RPC 1.10(c) is

not self-defining. It includes the attorney who

has sole responsibility or principal

responsibility, and it would not connote an

attorney whose contact with the client’s file was

incidental or technical. The purpose of the

ethical requirement animates its meaning. The

undoubted purpose is to assure that the conflict of

an attorney who had substantial access to the

former client’s confidences and legal strategies

will be imputed to the attorney’s new firm, which

may not represent an adverse interest in the same

or similar matter.

Id. at *5. In deciding that Lorilee and Angelyn had “primary

responsibility” the court focused on the fact that Lorilee 

interviewed CW, Lorilee and Angelyn obtained confidential

information, and they developed strategy to represent CW at his

detention hearing. Id. at *6. The court also noted CW’s defense

was a “team approach” which was divided by function. See also

Gabapentin, 407 F.2d at 609 (noting that the side-switching

attorneys had primary responsibility since they “were fully engaged

in and primarily responsible for the pretrial representation of

[their former client], and in the course thereof, were privy to

confidential attorney work-product and privileged information....”)

LG’s role in AtlantiCare’s defense is much more extensive than

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the roles Lorilee and Angelyn played in the Pelle case. Here, LG

not only interviewed AtlantiCare’s witnesses and communicated with

its in-house counsel, but she also prepared motion papers, analyzed

relevant documents, prepared discovery responses and helped develop

AtlantiCare’s defense strategy. LG was an integral member of

AtlantiCare’s defense team.

When it decided that the disqualified attorneys had “primary

responsibility,” the court in Pelle was persuaded by the fact that

the attorneys actually obtained confidential information regarding

the former client (CW) in the same matter. The court noted that “a

heightened precaution” was necessary in cases where “the

disqualified attorney actually obtained confidential information

regarding the former client in the same or similar matter.” Id. at

5. The court also observed that “[t]he substantial roles performed

by Angelyn Gates and Lorilee Gates, including their exposure to

confidential information and strategies of defending CW, amount to

primary responsibility within the intent of RPC 1.10(c)(1).” Id.

at *6.

Here, the Court finds that LG obtained AtlantiCare’s

confidential and privileged information. This is supported by the

Declarations of Rosenblatt, Jayachandran and Michael-Ziereis, and

is documented in the e-mails the Court reviewed. LG was an

“integral” member of Morgan’s defense team. It therefore cannot be

credibly disputed that LG had immediate and easy access to

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AtlantiCare’s privileged and confidential information. Based on 12

the evidence presented, plaintiffs’ argument that “Ms. Grosskreutz

[did] not receive any confidential information while employed at

Morgan Lewis” (Supp. Brief at 10) is incredulous.

The Court finds LG had primary responsibility for

AtlantiCare’s defense for the same reasons expressed in Pelle:

The Court ... cannot overlook the cumulative weight

of the collective responsibilities of the two

attorneys Gates in representing CW, and the fact

that actual confidential and tactical information

was imputed to them during their time as his

attorneys at Criminal Defense Associates.

Id. at *6. Similarly, LG’s responsibilities at Morgan were

extensive and substantive, and she gained confidential and

privileged information. The Court finds that LG had a “direct,”

“substantial” and “meaningful” role in AtlantiCare’s defense. See

id. at *4, *6. LG, therefore, had primary responsibility for

AtlantiCare’s defense within the meaning of RPC 1.10(c).13

Plaintiffs’ arguments in opposition to defendants’ motion are

unavailing. Defendants argue the Court should accept LG’s

characterization of her work as limited because defendants’

Although the receipt of privileged or confidential 12

information is not a litmus test for primary responsibility, it is

an important relevant factor to consider. The receipt and exchange

of such information evidences an attorney’s substantive work on a

case.

A leading authority in this area infers that primary 13

responsibility is equated with “policy or operational-level

responsibilities.” Michels, supra, §25:4-3 at 598. For the

reasons already discussed, LG meets this criteria.

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Declarations are biased. This argument is specious. The Court 14

has no reason to question the accuracy of defendants’ Declarations.

Further, defendants’ Declarations are consistent with LG’s e-mails

and time entries. Indeed, as noted herein, LG’s averments, and not

those of the defendants, are questionable.

The Court does not agree with plaintiffs’ conclusion that LG

played a minimal and unimportant defense role. LG’s document

reviews, witness interviews, etc. were significant and integrally

related to the defense of the case. This work is not, as 15

plaintiffs argue, “mechanical.” Document review, preparing briefs

and interviewing witnesses are all integral to an effective

litigation defense. Moreover, the Court agrees with defendants

that: 

However much Costello & Mains wish to mistakenly downplay

[LG’s] role, the fact remains that she interviewed multiple

witnesses and prepared memoranda memorializing those meetings

in detail. She prepared pleadings. She participated with coPlaintiffs’ counsel argued, “I submit to you that she [LG} 14

doesn’t care who ends up representing these plaintiffs, in this

case and she doesn’t care whether my firm is disqualified or not. 

Morgan, Lewis does, because their clients do.” Transcript (“Tr.”)

of September 15, 2011 Oral Argument 17:4-7.

Defendants argue: 15

Plaintiffs would have the Court believe that Ms. Grosskreutz

was some neophyte junior lawyer playing a bit role sitting in

a library researching case law. This is absurd. As Costello

& Mains touted on its website while Ms. Grosskreutz was

employed by it, she is lawyer with 23 years of extensive

experience representing employers, having “devoted her

litigation and trial practice solely to the practice of Labor

and Employment law” and worked for “several large law firms

with offices in New Jersey and nationwide.”

Reply Memo. at 6.

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counsel in developing strategy. These are not some minor

tasks that a junior lawyer had been asked to perform in

passing because of a shortage of resources.

Reply Memo. at 7.

The Court discounts plaintiffs’ argument that even if CM

received information from LG regarding the case, the information

would have been discoverable and not subject to any privilege. See

Opp. Brief at 10 (“LG herself has certified that many of the

documents she reviewed were not relevant to this litigation, and,

further, that none of the documents she reviewed would have been

subject to any claim of privilege.”). This argument has been

rejected in various decisions. “Other courts have rejected the

notion that the potential disclosure of confidential information in

discovery could somehow ameliorate a conflict under Rule 1.9.” H20

Plus, LLC v. Arch Pers. Care Prods., L.P., Civ. No. 10-3089 (WJM),

2010 WL 4869096, at *11 (D.N.J. Nov. 23, 2010), aff’d, 2011 WL

1078584 (D.N.J. March 21, 2011)). As the court in H20 Plus noted: 16

[A] discovery disclosure based standard governing

disqualification is illogical and impractical. A

simple example demonstrates the difficulties with

such a standard. Say a lawyer adverse to a former

client files a motion and prevails and the suit

never reaches discovery. In theory, a lawyer could

have confidential information from a client and use

it to craft a motion to dismiss a subsequent

complaint. If that motion were to be granted, the

lawyer, operating under a conflict, would have

successfully avoided disqualification only because

the lawyer was particularly adept at using

confidential information to his/her benefit before

discovery ever commenced . . . . Tying

Although the court in H20 Plus was concerned with Rule 16

1.9(a), the Court finds the discussion to be applicable to its

analysis of Rule 1.10.

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disqualification to future discovery is simply

unworkable. It also does not comport with the

policies that RPC 1.9 is premised upon.

2010 WL 4869096, at *12. The Court harbors the same concerns here. 

While some of the information LG had access to may be disclosed in

discovery, it is also likely that other materials are privileged

and not subject to production. The outcome of defendants’

disqualification motion should not be dependent on a document by

document analysis of what is and is not discoverable, otherwise:

A former client seeking to keep a lawyer from side-switching

would essentially be required to disclose privileged

communications simply to maintain a level playing field and

meet its burden of persuasion on a motion to disqualify. 

Every disqualification motion would have the potential to turn

into a subdispute over complex privilege issues relating to

documents and communications-all before the case even started.

Such a standard would be manifestly unworkable and improper.

Id. The Court also agrees with defendants’ argument that,

“[f]ailure to disqualify Plaintiffs’ counsel under these

circumstances would undermine the confidence that clients have in

their outside counsel.” Memo. of Law at 11.

Screening

As noted, since LG had “primary responsibility” at Morgan, her

conflict is imputed to CM pursuant to RPC 1.10(c) and defendants’

motion to disqualify must be granted. However, even if LG did not

have primary responsibility, defendants’ motion would still be

granted because plaintiffs cannot satisfy the screening requirement

in RPC 1.10(c)(2).

Pursuant to the 2004 amendments to the RPC’s, screening may

cure an imputed conflict in an instance where the disqualified

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attorney did not have primary responsibility. RPC 1.10(c)(2) does

not give detailed guidance on what needs to be done except to say

that the disqualified lawyer must be screened from any

participation in the matter and the screening must be timely.

However, RPC 1.10(f) provides some guidance:

Any law firm that enters a screening arrangement,

as provided by this Rule, shall establish

appropriate written procedures to insure that: (1)

all attorneys and other personnel in the law firm

screen the personally disqualified attorney from

any participation in the matter, (2) the screened

attorney acknowledges the obligation to remain

screened and takes action to insure the same, and

(3) the screened attorney is apportioned no part of

the fee therefrom.

In addition, RPC 1.10 (1) (Terminology) states:

“Screened” denotes the isolation of a lawyer

from any participation in the matter through

the timely adoption and enforcement by a law

firm of a written procedure pursuant to RPC

1.10(f) which is reasonably adequate under the

circumstances to protect information that the

isolated lawyer is obligated to protect under

these Rules or other law.17

Kevin Costello provided the only evidence as to LG’s

screening. His Certification states that upon LG’s hiring “she was

immediately screened from any contact or communication regarding

the present matter.” Costello Certification ¶3. The details of

the screening were not included in the Certification. However,

Costello represented at oral argument that LG was told before she

started working for him that she was “not going to work on

AtlantiCare.” September 15, 2011 Transcript 28:9-11. Costello

The ABA Model Rules do not specifically require a written 17

procedure as does New Jersey. See MRPC 1.10(k).

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represented that the first day LG came to work he told everyone in

his office that LG “can’t touch this file,” “she can’t see this

file,” she “can’t go to that file drawer herself,” and she can’t

“click on AtlantiCare” on the “case management system.” Id. Tr.

28:9 to 29:6. Costello also claims he had a reminder meeting with

everyone in his office. Id. 29:6-19. Costello acknowledges that

his firm did not have a written screening policy.

RPC 1.10(f) and 1.0(e) indicate in clear and unmistakable

terms that to be adequate a screening procedure must be in writing. 

CM never established a written procedure and for this reason alone

its screening was inadequate. CM argues its screening was adequate

because the RPC’s do not provide a time frame for when a written

screening procedure must be deployed. September 15, 2011 Tr. 30:8-

10. Therefore, CM argues, even though it did not have a written 18

screening procedure when LG started at CM, nor at any time during

the 6-7 weeks she worked there, CM’s screening was adequate. This 19

argument defies all notions of common sense. If the purpose of a

screening procedure is to protect information the isolated lawyer

is required to protect, written procedures should be in place

before a disqualified lawyer starts work. At a minimum, the

Costello argued, “[i]t [RPC’s] doesn’t say that you can’t 18

verbally screen and substantively screen and compellingly and

finally and well-donely [sic] screen. And then, by the way, memo

it up later and say, by the way, referring back to our meeting on

such and such a day, just be reminded, blah, blah, blah.” Id.

30:10-15.

It appears, but it is by no means certain, that CM instituted 19

a written screening policy after LG left the firm.

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procedures should be in place when the employment starts, not after

the disqualified lawyer leaves the firm. It makes no sense for 20

the RPC’s to require a written screening procedure but to find that

the written procedure can be adopted after the disqualified lawyer

leaves the firm. “[T]imely screening arrangements are essential

to the avoidance of firm disqualification.” LaSalle Nat’l Bank v.

County of Lake, 703 F.2d 252, 259 n.3 (7th Cir. 1983) (emphasis in

original).

In addition, even if CM’s screening procedure was put in

writing, the procedure CM used was inadequate. Although there is

no definitive New Jersey guidance on the elements of an effective

screen, the Court has no hesitation in finding CM’s procedure

inadequate. There is no indication that the AtlantiCare file was

physically separated from CM’s other files. In addition, the file

was not specially secured or “kept under lock and key,” LG and CM’s

employees did not acknowledge in writing CM’s procedures, and LG

was not “locked out” of the AtlantiCare file on CM’s computer

system. These are the sorts of procedures that are put in place in

instances where courts have found screens to be adequate. See

Opalinski v. Robert Half Int’l Inc., C.A. No. 10-2069 (SDW)(MCA)

2011 WL 1042762 (D.N.J. March 18, 2011); see also LaSalle Nat’l 21

See MRPC 1.0, Comment 10 (“In order to be effective, 20

screening measures must be implemented as soon as practical after

a lawyer or law firm knows or reasonably should know that there is

a need for screening.”).

In addition to screening, in order for CM to avoid imputation 21

of LG’s conflict CM was required to give prompt written notice of

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Bank, 703 F.2d at 259; Holcombe v. Quest Diagnostics, 675 F. Supp. 22

2d 515, 519 (E.D. Pa. 2009); State Bar of Nevada Standing Committee

on Ethics and Professional Responsibility, Formal Opinion No. 39

(April 24, 2008).23

RPC 1.10(b)

LG left CM on April 15, 2011, which is the same day defendants 

filed the present motion. Plaintiffs argue that because LG left

CM, the present motion should be governed by RPC 1.10(b). Pursuant

to this subsection of the Rule: 

LG’s employment to defendants. The purpose of the notice is to

enable defendants to ensure compliance with the RPC’s. See RPC

1.10(c)(3). CM did not give this notice. Instead, Morgan first

learned about LG’s side-switching when it saw her name on CM’s

letterhead. This apparently occurred shortly after LG joined the

firm. The appropriate course of conduct should have been for CM to

notify Morgan before LG started at the firm. This would have

enabled defendants to “ascertain compliance” with RPC 1.10(c)

sooner rather than later. Although defendants did not have the

right to “veto” LG’s employment, prompt written notice is

undoubtedly contemplated by RPC 1.10(c)(3). If CM had time to

employ LG and add her name to its letterhead, it certainly had the

opportunity to notify defendants of LG’s employment before she

started at the firm or contemporaneously therewith. Despite CM’s

actions in this regard, however, the Court does not base CM’s

disqualification on its failure to give proper notice pursuant to

RPC 1.10(c)(2).

Noting that the common characteristics of an approved 22

screening arrangement include, inter alia, denial of access to

relevant files, discussion of the suit was prohibited in her

presence, no members of the firm could show her documents relating

to the case, files were kept in a locked file cabinet, and an

affirmation under oath that the disqualified attorney and others

affirmed these facts.

Noting that the elements of an effective screen include, 23

inter alia, the isolation of files and electronic communications

from the personally disqualified lawyer, periodic written notices

for as long as the screen is necessary, and affirmations that the

screen has not been breached.

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When 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.24

Defendants argue that severing a relationship with a

disqualified attorney does not cure imputed disqualification. See

Reply Memo. at 10 (citing Lawler v. Isaac, 249 N.J.Super. 11 (App.

Div. 1991)). Defendants also argue that “even if RPC 1.10(b) were

to somehow control now that [LG] is no longer associated with [CM],

both elements of the rule can easily be established so that [LG’s]

conflict must still be imputed to [CM].” Id. at 11.

This issue was addressed in Pravak v. The Meyer Eye Grp., PLC,

No. 07-2433-JPM-dkv, 2008 WL 4372914 (W.D. Tenn. Sept. 19, 2008). 

In Pravak, the court found that a disqualified attorney could not

“cure” imputed disqualification by terminating his employment with

the firm. The decision noted:

[I]f a lawyer was allowed to ‘cure’ an imputed

disqualification by simply leaving his current firm, that

lawyer would be able to undertake representation of a

client adverse to a partner’s former client, appropriate

confidential information about the former client to aid

his current client, and use that information to the

detriment of the former client by simply leaving his

current firm and opening an office across the street.

This is not the type of conduct considered acceptable

As aptly put in another opinion, CM urges the Court to adopt 24

a rule whereby the imputed disqualification of a “tainted” lawyer

“evaporates” upon the departure of the side-switching attorney. 

Cardona, supra, 942 F. Supp. at 976.

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under the TRPC.

Id. at *8. This Court agrees, and finds further support for this

conclusion in Cardona, 942 F. Supp. at 976, wherein the court found

that a rule permitting the cleansing of an imputed conflict by the

mere dismissal of a side-switching attorney “would not provide any

disincentive to a law firm that contemplates hiring an attorney who

has formerly represented an adverse party.” Accord Lawler v.

Isaac, 249 N.J. Super. 11, 17 (App. Div. 1991)(“The firm must be

disqualified even if the associate disclosed none of his previously

acquired knowledge and even though he is no longer employed by [the

firm.]”).

For the reasons discussed, therefore, the Court finds that RPC

1.10(b) is not applicable to the conflict imputation issue before

it. 

Conclusion

In sum, the Court finds that Costello and Mains must be

disqualified because LG’s conflict is imputed to the entire firm. 

Since LG had “primary responsibility” for AtlantiCare’s defense

while she worked at Morgan, screening cannot prevent the conflict

imputation. In addition, even if LG did not have primary

responsibility, disqualification is appropriate because CM did not

employ an adequate screening procedure.

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Accordingly, for all the foregoing reasons, defendants’

“Motion to Disqualify Plaintiffs’ Counsel Costello & Mains, P.C.”

[Doc. No. 18] is GRANTED. An appropriate Order will be entered.

s/Joel Schneider 

JOEL SCHNEIDER

United States Magistrate Judge

Dated: October 25, 2011

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