UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FALK, U.S.M.J.

I. INTRODUCTION

This is a motion to disqualify Plaintiff’s counsel because of an alleged conflict of

interest.

From 2003 until September 2009, Plaintiff’s counsel, Diego F. Navas, Esq., was

employed by the City of Newark (“the City”) as chief in-house counsel for the Litigation

Section in the City’s Law Department. During his employment, he was responsible for

evaluating the merits of tort and civil rights cases filed against the City, personally defending

the City and its police officers in countless civil rights cases, and supervising associate

attorneys representing the City and its interests.

 Civil Action No. 11-4042 (WJM)

 

OPINION

MARIO CARRENO, 

 Plaintiff,

v.

CITY OF NEWARK, CITY OF

NEWARK POLICE DEPARTMENT,

PAUL HAMILTON, JOHN DOES 1-20,

AND ABC CORP 1-20, 

 Defendants.

 

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 1 of 26 PageID: 95
Now, two years after his departure from the City’s employ and engaged in private

practice, Navas has filed a civil rights action on behalf of Plaintiff Mario Carreno against the

City and Newark Police Officer Paul Hamilton (“Hamilton”) (collectively “Defendants”),

which arises out of an incident that occurred when Navas was still employed by the City. The

Complaint alleges that Hamilton used excessive force to arrest Carreno without probable

cause, that the City and Hamilton engaged in a conspiracy to deprive Carreno of his

constitutional rights, and that the City is liable for the constitutional violations under Monell

v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978) (“Monell”).

The Complaint includes allegations referring to the confidential disciplinary history

of Officer Hamilton, who was an individual defendant in a previous case in which Navas was

involved as City counsel. In addition, as support for the Monell-type allegations in the

Complaint, Navas expressly pleads and relies on a petition filed by the American Civil

Liberties Union (“ACLU”) with the United States Department of Justice that alleges

widespread and systemic civil rights failures within the Newark Police Department. The

alleged violations by the Newark Police Department referred to in the ACLU petition

occurred, at least in part, when Navas himself was the supervising Section Chief in the City’s

civil litigation section and was personally responsible for defending the City and its policies.

In light of Navas’s previous representation, Defendants have moved to disqualify

Navas pursuant to New Jersey Rule of Professional Conduct (“RPC”) 1.9(a) and the New

Jersey Supreme Court’s controlling opinion in City of Atlantic City v. Trupos, 201 N.J. 447

(2010) (“Trupos”). Basically, Defendants claim that Navas has a disqualifying conflict of

2

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 2 of 26 PageID: 96
interest and is engaged in prohibited side-switching.

The motion is fully briefed. No argument was heard. For the reasons that follow, the

Court concludes that Navas’s representation of Plaintiff in this case violates RPC 1.9(a).

Accordingly, Defendants’ motion to disqualify is granted.

II. BACKGROUND

A. Present Complaint

In July 2009, Plaintiff alleges that he was at his residence in Newark, New Jersey,

when members of the Newark Police Department, including Officer Hamilton, entered into

his apartment to arrest another individual in connection with a solicitation/prostitution

investigation. (Compl., ¶¶ 10-11.) Plaintiff alleges that he was placed in handcuffs, struck

in the side of the head by Hamilton, and pushed to the floor. (Compl., ¶¶ 13, 16.) Plaintiff

further alleges he suffered a large laceration to his scalp caused by Hamilton’s use of

excessive force. (Compl., ¶ 19.) Plaintiff was not charged and states that he reported the

incident to the Newark Police Department, which resulted in an internal affairsinvestigation.

(Compl., ¶¶ 20-21.) Plaintiff claims that he cooperated with the Newark Police’s internal

affairs department, but that the incident was not properly investigated and no disciplinary

charges were ever filed against Hamilton. (Compl., ¶¶ 22-24.)

Plaintiff’s Complaint was filed in state court and was removed to federal court on July

14, 2011. The Complaint contains multiple counts, including: (1) federal civil rights

violations against Hamilton for use of excessive force and unlawful arrest under 42 U.S.C.

3

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 3 of 26 PageID: 97
§ 1983; (2) a Monell-type claim against the City for allegedly developing and maintaining

1

policies, practices and customs evincing a deliberate indifference to individuals’

constitutional rights; (3) conspiracy under 42 U.S.C. §§ 1985-1986; (4) violations of the New

Jersey Civil Rights Act, N.J.S.A. 10:6-1, et seq.; and (5) various state law torts. Specifically

included in the Complaint are the following noteworthy allegations:

24. Upon information and belief, Defendant Hamilton has been

involved in several prior incidents of police misconduct,

including the illegal use of force, which have never resulted in

discipline against this officer and he has been allowed to remain

on the Newark police force.

25. As a matter of custom, practice and/or policy, the Newark Police

Department has historically allowed misconduct by its police

officers upon citizens to go un-punished which has created an

atmosphere where officers believe they can operate with

impunity.

26. In fact, the City of Newark Police Department was recently the

subject of a much publicized petition filed by the ACLU which

charged that the agency fails to adequately investigate incidents

of police misconduct resulting in very rare instances of police

officers being disciplined for their actions. This petition

demands federal oversight of the Newark Police Department.

(Compl., ¶¶ 24-26.)

A Monell claim is a Section 1983 municipal liability claim. In short, Monell

1

provides that a municipality can be held liable under Section 1983 for a constitutional

violation/injury that directly results from a municipal policy, custom, or practice. 436 U.S.

658, 695 (1987).

4

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 4 of 26 PageID: 98
B. Navas’s Prior Representation & The Alleged Conflict

2

Navas wasformerly employed asin-house counsel for the City in its Law Department.

(Defendants’ Statement of Facts(“DSF”) ¶ 8; Plaintiff’s Response to Defendants’ Statement

of Facts (“PRSF”) ¶ 8.) He was Section Chief of the Civil Litigation Section for the City of

Newark from 2003 until September 2009. (DSF ¶¶ 9-10; PRSF ¶¶ 9-10.) The Section Chief

reports to the City’s chief legal representative, Corporation Counsel. (Plaintiff’s CounterStatement of Facts (“PSF”) ¶ 2.) In his role as Section Chief, Navas was responsible for

overseeing the Litigation Section, which handled tort and civil rights litigation against the

City. (DSF ¶ 11; PRSF ¶ 11.) Navas’s responsibilities included review of all preliminary

notices of tort claims pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq.,

which often overlapped with federal civil rights claims. (DSF ¶ 12; PRSF ¶ 12.) Navas was

also responsible for assigning cases to himself or to assistant attorneys in the litigation

section. (DSF ¶ 13; PSF ¶ 13.) If Navas assigned an assistant attorney to a case, he always

maintained supervisory responsibility over the case and the assigned attorney. (DSF ¶¶ 13,

17; PRSF ¶¶ 13, 17.) Navas concedes that he typically reviewed the allegations in

Trupos requires that this Court “make a factual reconstruction of the scope of the

2

prior legal representation.” Trupos, 201 N.J. at 465 (citing LaSalle Nat’l Bank v. County of

Lake, 703 F.2d 762 (7th Cir. 1983)). Some of the facts are disputed. However, the facts

included in this section are undisputed unless noted otherwise. A motion to disqualify

“should ordinarily be decided on the affidavits and documentary evidence submitted, and an

evidentiary hearing should be held only when the court cannot with confidence decide the

issue on the basis of the information contained in [the] papers.” Trupos, 201 N.J. at 463. As

detailed in this opinion, the undisputed facts are sufficient to reach a definitive conclusion

on the motion to disqualify.

5

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 5 of 26 PageID: 99
complaints, police reports, and witness statements, and that he had access to and, at times,

reviewed confidential materials, such as internal affairs (“IA”) investigations. (DSF ¶ 15;

PRSF ¶ 15.) Assignments to assistant counsel were sometimes done by memorandum, and

3

Navas often made comments regarding strategy and provided instructions to the handling

attorney how to defend the City, and, if appropriate, the individual police officers involved.

(DSF ¶ 15; PRSF ¶ 15.)

According to the City’s Tasks and Standards applicable to the Section Chief position,

Navas was also responsible to:

• Have daily substantive contact with all attorneys assigned to the

Litigation Section.

• Be knowledgeable of the status of all matters handled by the

Litigation Section including Court appearances and settlement

negotiations.

• Be knowledgeable of the status of all matters assigned to

individual attorneys in the Litigation Section.

• Provide Management with a monthly status report as to all

pending cases.

• [S]eek settlement approval on all matters, from Corporation

Counsel, or her designee, in the first instance.

• Provide attorneys with guidance and supervision concerning all

aspects of effectively managing and representing the City in

their respective matters.

(DSF ¶ 17 (quoting the City’s Tasks and Standards Sheet, attached to Certification of Gary

S. Lipshutz, Esq. (“Lipshutz Cert.”) as Ex. B); PRSF ¶ 17.) In addition, Navas was obligated

Navas contends that he only actually reviewed IA investigations in “the instances

3

where internal affairs complaints were actually filed” and the materials were provided to the

Law Department at the inception of the case; Navas’s “recollection is that this was rarely the

case[.]” (PRSF ¶ 15.)

6

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 6 of 26 PageID: 100
to keep Corporation Counsel and First Assistant Corporation Counsel informed of the status

of pending litigation. (DSF ¶ 18; PRSF ¶ 18.)

During the course of his employment as Section Chief, Navas personally represented

the City and individual officers in at least 18 civil rights cases in the New Jersey District

Court, some of which were case managed by the Undersigned, and many of which involved

Monell-type claims and allegations of excessive force and unlawful arrest. Likewise, Navas

4

represented the City in many state court cases, including an excessive force action captioned

Velez v. City of Newark, Docket # ESX-L-7557-07. (DSF ¶¶ 24, 27-28; PRSF ¶¶ 24, 27-28.)

Defendant Hamilton was named as a defendant in the Velez case, a state court tort and

negligence action. (DSF ¶ 27; PRSF ¶ 27.) The parties dispute whether Navas personally

represented Hamilton in Velez, but Navas concedes that he reviewed the Velez complaint,

police reports, and hospital records, and that he assigned the matter to assistant counsel,

Avion M. Benjamin, Esq., in the Litigation Section. (DSF ¶ 29; PRSF ¶ 29.) In his memo

The cases are: Qualls v. City of Newark, No. 01-2860 (WHW); Mitchell v. City of

4

Newark, No. 02-33 (DRD); Hicks v. Prachar, No. 02-322 (DMC); Feliciano v. City of

Newark, No. 02-1946 (JLL); Criado v. City of Newark, No. 02-2434 (WHW); Ratliff v. City

of Plainfield, et al, No. 02-4474 (WJM); Jones v. City of Newark, No. 03-17 (GEB); Sanchez

v. City of Newark, No. 03-2128 (WJM); Hall v. City of Newark, No. 03-4056 (WGB); Barna

v. City of Newark, No. 03-5326 (JAP); McGill v. City of Newark, No. 03-6121 (JCL);

Booker v. State of New Jersey, No. 04-245 (DRD); Criss v. Cosgrove, No. 04-2244 (PGS);

Rackley v. Newark Police, No. 04-3839 (FSH); Johnson v. City of Newark, No. 05-531

(KSH); Davila v. Weber, No. 07-1304 (JAG); Lima v. Newark Police Department, No. 08-

426 (FSH); Serrano v. City of Newark, No. 08-996 (PGS). Five of these cases were case

managed by the Undersigned (Qualls, Hicks, Jones, McGill, and Criss).

7

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 7 of 26 PageID: 101
assigning Velez, Navas critiques the individual police officers’ conduct. He also

5

specifically directed Ms. Benjamin to, initially, file an answer only on behalf of the City and

not Hamilton. (DSF ¶ 29; PRSF ¶ 29.) He instructed Ms. Benjamin to review Hamilton’s

disciplinary history to determine “if it creates any problem for us.” (DSF ¶ 29; PRSF ¶ 29.)

Navas directed Ms. Benjamin to report to him when she was “in was in a position to fully

evaluate this matter.” (See Lipshutz Decl., Ex. F.) Thereafter, Ms. Benjamin prepared a

memo that recommended that the City, in fact, represent the interests of the Velez

defendants, including Defendant Hamilton. (DSF ¶ 31; PRSF ¶ 31.) This recommendation

was accepted, and an answer was filed on behalf of both the City and Hamilton. (DSF ¶ 32;

PRSF ¶ 32.)

C. The ACLU Petition

In September 2010, the ACLU filed a petition with the United States Department of

Justice requesting an investigation into the Newark Police Department. (DSF ¶ 36; PRSF

¶ 36.) According to the ACLU, the Newark Police Department has developed a historical

and continuing policy and custom of neglect, including a desultory record of IA

investigation, review, and discipline, which has allegedly resulted in the serial violation of

citizens’ constitutional rights. In the petition, which is public and has been the subject of

The memorandum appears to be a confidential, privileged communication and thus

5

will not be referred to in detail herein. The Court notes that movant has filed a motion to seal

all the briefing in this case. While the motion is overbroad, it may be appropriate to seal

certain redacted portions and exhibits. The Court does not refer to anything that would be

sealed in the course of this Opinion.

8

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 8 of 26 PageID: 102
press coverage, the ACLU identifies 26 “settled” civil rights cases in support of its request

for federal oversight of the Newark Police Department. The overwhelming majority of these

cases contained excessive force, unlawful arrest, and similar alleged civil rights violations.

(DSF ¶ 37; PRSF ¶ 37.) The ACLU petition is tantamount to a massive and sweeping

Monell claim, alleging that the City’s civil rights record is so poor and entrenched as to

warrant federal intervention. Navas specifically relies on the ACLU petition in Plaintiff’s

Complaint. (Compl., ¶26.) This is highly significant because Navas represented the City,

and its police officers, in the very cases he now claims support Carreno’s allegation that the

City has a policy of deliberate indifference to citizens’ constitutional rights.

6

D. The Motion to Disqualify

On September 23, 2011, Defendants filed the present motion to disqualify Navas as

Plaintiff’s counsel. They argue that Navas represented both the City and Hamilton

previously and that RPC 1.9(a) compels Navas’s disqualification. They also claim that

Navas: (1) had consistent and high-level exposure to the confidential processes of the City’s

Litigation Department, both in terms of litigation and settlement strategy; and (2) had access

to and reviewed reams of confidential police personnel and internal affairs files that can be

used against the City and Hamilton in this case. Plaintiff has strenuously opposed the

motion. He claims that Navas did not represent Hamilton and did not have access to

confidential information that can be used in this case.

Navas was counsel of record in 8 of the 26 cases identified in the ACLU petition;

6

he supervised the attorney of record in 15 additional cases. (DSF ¶ 39; PRSF ¶ 39.)

9

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 9 of 26 PageID: 103
III. LEGAL STANDARD

Local Civil Rule 103.1(a) establishes that the American Bar Association=s Rules of

Professional Conduct (ARPC@) as revised by the Supreme Court of New Jersey govern the

conduct of the members of the bar admitted to this Court. See United States v. Balter, 91

F.3d 427, 435 (3d Cir. 1996), cert. denied 519 U.S. 1011 (1996); see also Wyeth v. Abbott

Labs., 692 F. Supp. 2d 453, 456 (D.N.J. 2010) (stating that when interpreting the RPC Courts

“look mainly to New Jersey state courts= opinions and modify them only when federal law

requires or permits”). “Resolution of a motion to disqualify requires the court to balance the

need to maintain the highest standards of the legal profession against a client's right to freely

choose his counsel.” Steel v. General Motors Corp., 912 F. Supp. 724, 733 (D.N.J. 1995).

The movant bears the burden of proving that disqualification is justified. Trupos, 201

N.J. at 463; Maldonado v. New Jersey, 225 F.R.D. 120, 136-37 (D.N.J. 2004).

Disqualification motions require careful scrutiny of the underlying facts and a “sense of

practicality” to avoid unjust results. See Martin v. AtlantiCare, No. 10-6793, 2011 WL

5080255, at *2 (D.N.J. Oct. 25, 2011); Montgomery Acad. v. Kohn, 50 F. Supp. 2d 344, 349

(D.N.J. 1999). Disqualification must generally be based in “fact,” Trupos, 201 N.J. at 464,

and “surmise alone cannot support an order of disqualification.” Id. at 469. However,

“nothing in Trupos abandon[s] the principle that facts in an ethics-related case may be

determined through reasonable inferences, as well as by means of circumstantial evidence.”

Twenty First Century Rail Corp. v. New Jersey, 419 N.J. Super. 343, 357 (App. Div. 2011).

10

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 10 of 26 PageID: 104
Here, Defendants have moved to disqualify Plaintiff’s counsel under RPC 1.9(a).

That rule provides:

(a) A lawyer who has represented a client in a matter shall not

thereafter represent another client in the same or 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.

R.P.C. 1.9(a).

7

Rule 1.9(a) has three requirements: (1) the existence of a past attorney-client

relationship; (2) that the current representation involves the same or a matter substantially

related to the previous representation; and (3) that the interests of the attorney’s current client

are materially adverse to the interests of the former client. See, e.g., H20 v. Arch Pers. Care

Prods., No. 10-3089, 2010 WL 4869096, at *5 (D.N.J. Nov. 23, 2010), aff’d, 2011 WL

1078584 (D.N.J. Mar. 21, 2011); Host Marriott Corp. v. Fast Food Operators, Inc., 891 F.

Supp. 1002, 1007 (D.N.J. 1995).

New Jersey “strictly construes RPC 1.9,” and “if there be any doubt as to the propriety

of an attorney’s representation of a client, such doubt must be resolved in favor of

Technically, because Navas was a former municipal government employee, the

7

applicable Rule of Professional Conduct in the first instance would appear to be RPC 1.11,

not RPC 1.9. See N.J. Rule of Professional Conduct 1.11 (RPC governing “Successive

Government and Private Employment”). Neither party cites or discusses Rule 1.11. This is

ultimately not important, however, because RPC 1.11 specifically states that it is “subject to

Rule 1.9.” RPC 1.11(a). Thus, if Navas could not continue his representation under RPC

1.9, there is no need to consider RPC 1.11. See, e.g., City of Atlantic City v. Trupos, 25 N.J.

Tax 108, 112 (N.J. Tx. Ct. 2009) (“Since this case can be disposed of by analysis of the cases

interpreting RPC 1.9, there is no need to separately analyze the facts under the special

strictures of RPC 1.11.”), overruled on other grounds by Trupos, 201 N.J. 447 (2010).

11

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 11 of 26 PageID: 105
disqualification.” Twenty-First Century Rail Corp., 419 N.J. Super. at 358; see also Herbert

v. Haytaian, 292 N.J. Super. 426, 438-39 (App. Div. 1996).

IV. ANALYSIS

There are two RPC 1.9(a) prongs in dispute. One, Plaintiff concedes he represented

the City of Newark, but contends he did not previously “represent” Officer Hamilton. Two,

Plaintiff contends that the matters are not “substantially related” within the meaning of RPC

1.9 and Trupos.

A. Past Attorney-Client Relationship

Navas concedes that he had a previous attorney-client relationship with the City.

However, Navas attempts to dispute that he represented Defendant Hamilton. The Court

concludes that, under the circumstances here, Navas also had an attorney-client relationship

with Officer Hamilton within the meaning of RPC 1.9(a).

The term “‘represented’ is not defined in RPC 1.9, nor is it defined elsewhere in the

Model Rules or in the New Jersey RPCs.” Dewey v. R.J. Reynolds Tobacco Co., 109 N.J.

201, 214 (1988); see also Gruzen Samton, LLP v. William Paterson Univ., 2009 WL

1766569, at *5 (N.J. App. Div. June 24, 2009). An attorney-client relationship may be direct

or implied, and “an attorney’s acceptance of obligations in his professional capacity need not

necessarily be articulated, in writing or speech but may, under certain circumstances, be

inferred from the conduct of the parties.” Gruzen, 2009 WL 1766569, at *5 (citing In re

Silvermann, 113 N.J. 193, 217 (1988)). Indeed, the RPC “presuppose a larger legal context

shaping the lawyer’s role.” Dewey, 109 N.J. at 250.

12

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 12 of 26 PageID: 106
Navas was the City’s chief civil litigator. He was responsible for all civil rights

litigation, which often involved whether the Law Department would provide representation

for the individual defendant police officers. Navas also determined which lawyers would

work on which cases and how they should be handled. In the case of Defendant Hamilton,

Navas reviewed the Velez matter, which contained excessive force allegations against

Hamilton. (Navas Decl., ¶¶ 18-19.) He prepared a memorandum to assistant counsel

evaluating the case against Hamilton, directed that counsel obtain Hamilton’s confidential

internal affairs file, and indicated some concern about providing representation to Hamilton.

(DSF ¶ 29; PRSF ¶ 29; see also Navas Decl., ¶¶ 18-19.) He also directed assistant counsel

to discuss the issues with him. (Lipshutz Decl., Ex. F.) In short, Navas evaluated the issues

presented in the Velez case and assigned associate counsel, Ms. Benjamin, who operated

under Navas’s direct control and supervision.

8

Navas’s counter argument appears to be although he represented the City as Chief of

Litigation of the Law Department, he did not represent Hamilton because he assigned an

associate to defend Hamilton in Velez. In fact, as set forth above, Navas did much more with

regard to Defendant Hamilton. However, the argument misses the point for several reasons.

A municipality’s lawyers are usually considered a single office and legal unit. See,

It is noteworthy the Tasks and Standards applicable to Navas’s position as Section

8

Chief would have required that he have “daily substantive contact” with Ms. Benjamin; that

he be “knowledgeable of the status of” the Velez case, including “settlement negotiations”;

that he “provide management with a monthly status report as to all pending cases”; and that

he provide Ms. Benjamin “with guidance and supervision concerning all aspects of

effectively managing” the Velez action. (See DSF ¶¶ 17-18; PRSF ¶¶ 17-18; Lipshutz Cert.,

Ex. B.)

13

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 13 of 26 PageID: 107
e.g., Perillo v. Adv. Comm. on Prof. Ethics, 83 N.J. 366, 371 (1992) (noting that, “all

municipal employees, including counsel, are . . . on the same team.”). This is in many ways

analogous to individual lawyers in private law firms. Counsel of record for Defendant

Hamilton in Velez was the Law Department of Newark. This is similar to private clients and

law firms, where the firm is counsel of record, not just the individual lawyers who may work

on the case. In some cases, conflicts and representation are imputed to any firm with which

the disqualified lawyer is associated pursuant to RPC 1.10. Pursuant to this analysis,

conflicts are or would be assessed based on the Law Department’srepresentation (essentially,

Navas’s law firm).

However, there are exceptions and cases often focus on the individual attorneys

involvement in the case. See, e.g., Dewey, 109 N.J. at 214-15. In the case of Officer

Hamilton, Navas apparently participated in the decision that the Law Department would

defend Hamilton, and that defense was provided under his direction and control. Under

either theory, the Court is satisfied that Navas had a past attorney-client relationship with

Hamilton to come within the scope of RPC 1.9(a).

The Velez memorandum demonstratesthat Navas assessed the case against Hamilton,

made specific strategy recommendations how to proceed, discussed affirmative defenses and

discovery demands, and commented on the officers’ conduct. He also had access to

Hamilton’s confidential employment and internal affairs files, even though he states that he

has no “recollection” of having reviewed the information. Obviously, none of these activities

would have happened at all had Navas not represented Hamilton. As a matter of

14

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 14 of 26 PageID: 108
“practicality,” whether express or implied in nature, the Court has no doubt that Navas

represented Hamilton within the meaning and contemplation of RPC 1.9(a).

A contrary conclusion would make no sense. For example, if Navas was not

considered Hamilton’s counsel, it could be argued that any communications that he had with

Ms. Benjamin, communications that he expressly directed occur, could result in a waiver of

the attorney-client privilege. Likewise, it would have been impossible for Navas to fulfill

his responsibilities as Section Chief if he were not considered Hamilton’s counsel; e.g.,

remaining apprised of the status of the case; reporting to Corporation Counsel and Assistant

Corporation Counsel settlement positions and negotiations; preparing monthly status reports

on the case, the claims, etc. In short, Navas could not do his job as Section Chief without

representing Hamilton. This detailed analysis conclusively demonstrates that Navas

represented Defendant Hamilton and was privy to confidential records that could be used

against Hamilton in this case. As explained below, this alone is sufficient to disqualify

Navas.

9

B. The Cases are Substantially Related

In Trupos, the New Jersey Supreme Court held:

For purposes of RPC 1.9, matters are deemed to be

‘substantially related’ if

Even if the Court concluded that Navas did not formally represent Hamilton, he

9

would still be disqualified under the facts of this case. Specifically, Navas’s undisputed

representation of Newark, his access to confidential information that could be used against

Hamilton, and the alleged conspiracy pleaded in the complaint, would warrant

disqualification under the “sense of practicality” analysis required here. See, e.g., Martin

2011 WL 5080255, at *2.

15

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 15 of 26 PageID: 109
(1) the lawyer for whom disqualification is sought received

confidential information from the former client 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.

Id. at 467.

The substantial relationship test is met if a lawyer “received confidential information”

in a past representation that “can be used” against his former client in the present case. See,

e.g., H20, 2010 WL 4869096, at *6. Post-Trupos case law suggests that the following

“practical” three step process be used to determine whether a substantial relationship is

present:

First, the trial judge must make a factual reconstruction of the

scope of the prior legal representation. Second, it must be

determined whether it is reasonable to infer that the confidential

information allegedly given would have been given to a lawyer

representing a client in those matters. Third, it must be

determined whether that information is relevant to the issues

raised in the litigation pending against the former client.

Twenty-First Century Rail Corp., 419 N.J. Super. at 357 (emphases added) (citing LaSalle

Nat’l Bank v. County of Lake, 703 F.2d 252, 255 (7th Cir. 1983)); see also Trupos, 201 N.J.

at 466.

Trupos requires that disqualification of counsel be based in “fact,”and that

“surmise alone cannot support an order of disqualification.” Id. at 464, 470. However, it is

important to note that “nothing in Trupos abandon[s] the principle that facts in an ethics

related case may be determined through reasonable inferences, as well as by means of

16

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 16 of 26 PageID: 110
circumstantial evidence.” Twenty-First Century Rail Corp., 419 N.J. Super. at 357.

1. Navas Received Confidential Information

10

The Trupos test merely requires that the Court determine whether “it is reasonable to

infer that the confidential information allegedly given [in the prior representation] would

have been given to a lawyer representing a client . . . .” Twenty-First Century Rail, 419 N.J.

Super. at 360 (citing LaSalle Nat’l Bank, 703 F.2d at 255-56). The Court concludes that not

only is it “reasonable to infer” that Navas received confidential information during his prior

representations, but that it has been shown that he did, in actual fact, receive confidential

information.

The basic contours of what constitutes ‘confidential information from [a] former

client” are found in Rule of Professional Conduct 1.6. Twenty-First Century Rail, 419 N.J.

Super. at 359. According to the New Jersey Supreme Court, Rule 1.6

expands the scope of protected information to include all

information relating to the representation, regardless of the

source or whether the client has requested it be kept confidential

or whether disclosure of the information would be embarrassing

or detrimental to the client.

In re Advisory Opinion No. 544 of New Jersey Supreme Court Adv. Comm. On Prof’l

Ethics, 103 N.J. 399, 406 (1986) (emphasis added);see also Twenty-First CenturyRail Corp.,

419 N.J. Super. at 359. Moreover, client information communicated from a client to an

attorney is “confidential” within the meaning of Rule 1.9(a) even “if otherwise disseminated

The Courtskipsto the question of whether Navasreceived confidential information,

10

as a factual reconstruction of the prior representation has already been accomplished in Part

II, supra.

17

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 17 of 26 PageID: 111
or already in the public domain.” Twenty-First Century Rail Corp, 419 N.J. Super. at 359

(citing Kevin H. Michels, New Jersey Attorney Ethics § 15:2-2(a) at 305-06 (2010)).

The Court finds that Navas received confidential information in at least three forms:

(1) access to the City’s confidential litigation strategies and processes; (2) accessto the City’s

settlement processes and procedures; and (3) receipt and review of internal affairs

investigations and files. Each is addressed separately below.

a. Litigation Strategies and Processes. Navas was a decision-maker

for the City of Newark with respect to civil rights litigation. One of the primary functions

of Navas’s prior representation of the City was to receive and review information and

strategize about how to represent the City’s interests. This representation by its very nature

provided Navas with access to confidential information that would not be available to other

attorneys. For example, he would have information on how the City handled a claim or

complaint upon receipt; how the City would investigate its officers; and how the course of

investigation would proceed. His defense of Monell claims would necessitate access to

historical confidential information about the City’s policies and practices and the police

department’s internal affairs records. He would, by necessity, be privy to the City’s internal

and privileged evaluations regarding its susceptibility to civil rights claims. No amount of

discovery could even the playing field and place another attorney on the same footing as

Navas; he has a special advantage and understanding of the City’s confidential processes by

virtue of his supervisory in-house role.

All information learned from a client during a representation is confidential. See, e.g.,

18

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 18 of 26 PageID: 112
Twenty-First Century Rail, 419 N.J. Super. at 359. The types of information Navas received

in defending past Monell claims is likely privileged. There is no doubt that it is confidential

within the meaning of RPC 1.6 and 1.9(a).

11

b. Settlement Processes. Navas also had access to the City’s confidential

processes used to settle litigation. Defendants’ counselsubmits certain memoranda prepared

by Navas during his employment relating to the settlement of individual claims. (See

Supplemental Declaration of Gary Lipshutz, Esq., Exs. C-E.) In some of these memoranda,

Navas specifically discusses settlement of claims against the City; in others, he rejects

settlement offers, adds and subtracts conditions to settlement, and recommends to

Corporation Counsel whether claims should or could settle. (See id.) Navas had deep

While neither party cites any case law on the issue, the most factually analogous

11

case that this Court located is Green v. City of New York, No. 10-8214, 2011 WL 2419864

(S.D.N.Y. June 7, 2011). In that case, the plaintiff’s two attorneys had previously been

employed as assistant corporation counsel in the New York City Law Department. Id. at *1.

In counsels’ prior role with the City of New York, they represented the City and certain city

employees in connection with a lawsuit challenging the lawfulness of strip searches

conducted of pretrial detainees. Id. After leaving the City’s employ, the former assistants

switched sides and filed a complaint against the City pursuant to Section 1983, challenging

the strip search policy and bringing “a Monell-type of claim against the City of New York.”

Id. In pleading the complaint, counsel specifically relied on the prior litigation to support the

Monell claim (similar to Navas’s reliance on the ACLU petition in this case). Id. On a

motion to disqualify filed by the City, the Court concluded that “there is a substantial risk that

confidential information was obtained,” id. at *1, in the prior representation, and that in their

prior representation counsel were exposed to confidential governmental processes and

information, such as “training materials and policy statements.” Id. at *2. Based on these

concerns, counsel were disqualified. Id. at *3.

While the disqualification in Green was made under NY RPC 1.11 and not 1.9, and

the Green court was not applying the Trupos standard, the case is illustrative of the types of

problems inherent in representing a municipality and then subsequently switching sides and

bringing a Monell-type claim attacking the very same policies.

19

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 19 of 26 PageID: 113
exposure to the City’s settlement processes, and directly participated in the settlement of

numerous claims. He was aware of how the City values cases, and what would make the City

more or less likely to settle.

Navas takes issue with Defendants’ characterization of the settlement process,

claiming that others in the City’s Administration really controlled the process. But, that

12

actually proves Defendants’ point. No member of the public or regular attorney would be

aware of the specific internal process the City used to evaluate the settlement of claims.

This is confidential information within the meaning of the RPCs and Trupos.

13

c. Internal Affairs Files. The record shows that Navas clearly received

specific confidential documents during his previous representation in the form of IA files.

Navas admitsthat he had access to confidential IA documents during his employment,

Navas claims that in 2006, his duties with respect to settlement decisions were

12

reduced “and generally limited to making written recommendations to the Corporation

Counsel or First Assistant Corporation Counsel.” (Declaration of Diego F. Navas, Esq.

(“Navas Decl.”) ¶ 6.) He claims “those two officials” made settlement decisions, which were

then relayed to him. (Id.)

To the extent Plaintiff suggests that the “confidential information” at issue has to

13

be a specific document or communication and that general exposure to certain processes

are insufficient, the Court disagrees that Trupos is meant to be read so rigidly. In Trupos, the

Court rejected the possibility that counsel “may” have been privy to plaintiff’s settlement

determinations or methodology as a basis for disqualification. Id. at 469. Trupos specifically

stated that “there is no proof of any settlement tactics being shared with the law firm,” and

refused to base disqualification on surmise that there may have been. Id. However, Trupos

did not suggest that exposure to such processes, if proven, could not support an order of

disqualification. Id. at 470. Here, there is record proof that Navas both had access to and

participated in certain settlement discussions. He was also privy to and, in his own papers,

admits that he knows, from his prior representation, the process by which cases in Newark

are settled, information which is not otherwise publicly known. Thus, unlike Trupos,

Navas’s exposure to settlement processes is relevant to the issue of disqualification.

20

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 20 of 26 PageID: 114
although he contends he utilized them “rarely,” and that they are not truly “confidential”

because they could be obtained in discovery. Contrary to Plaintiff’s argument, the New

Jersey Attorney General’s Internal Affairs Policies & Procedures specifically state that “the

nature and source of internal investigations, the progress of internal affairs investigations,

and the resulting materials are confidential information.”

14 While internal affairs files may

be sought in discovery, there is no certainty that they will be produced. And, regardless, that

does not make them any less “confidential.” In fact, parties routinely fight over the

production of internal affairs files, and in cases where they are produced, they are almost

always provided under the protection of a discovery confidentiality order.

As this Court has previously explained, it does not make sense to apply a discovery

disclosure based standard to determine “confidentiality” in the context of a Rule 1.9(a)

disqualification:

[A] discovery disclosure based standard governing disqualification is

illogical and impractical. A simple example demonstratesthe 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. . . . [T]ying disqualification to future

discovery is simply unworkable. It also does not comport with the

policies that RPC 1.9 is premised upon.

The New Jersey Attorney General Internal Affairs Policies & Procedures are

14

available at http://www.nj.gov/oag/dcj/agguide/internalaffairs2000v1_2.pdf. The specific

provision quoted is located at page 11-46.

21

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 21 of 26 PageID: 115
There are many other problems. As one court has described, having

access to otherwise confidential information from a previous

representation could provide advantages such as ‘knowing what to ask

for in discovery, which witnesses to seek to depose, what questions to

ask them, what lines of attack to abandon and what lines to pursue, what

settlements to accept and what offers to reject, and innumerable

other uses.’ Webb [v. E.I. DuPont de Nemours & Co., Inc., 811 F. Supp.

158, 162 (D. Del. 1992) (“It is immaterial that those documents would

be available to any attorney in discovery. Rule 1.9(a) is not addressed

to the documents but to the representation in general.”)]. It is unfair to

afford one side such an advantage.

H20, 2010 WL 4869096, at *12.

15

In sum, it is beyond dispute that Navas received bountiful confidential information

in the course of his prior representations.

16

Navas also appears to also contend that IA files are not confidential because of the

15

ACLU petition; however, the petition would imply otherwise. In fact, the petition itself

refers to reliance on “police-generated statistics about IA complaints,” and indicates that

“because of the secrecy afforded to internal affairs complaints by the NPD, [the ACLU] does

not know the names of . . . complaintants.” (ACLU petition, attached as Exhibit K to the

Lipshutz Cert., at 9 n.4 (emphasis added).)

There is something of a dispute over whether Navas actually reviewed Hamilton’s

16

individual IA file. There is no dispute that he had access to it. Defendants contend that

Navas had to have reviewed the file because of the express allegation in the Complaint

regarding Hamilton’s “several prior incidents of police misconduct, including the illegal use

of force, which have never resulted in discipline against this officer . . . .” (Compl., ¶ 24.)

Navas contends that his “recollection” is that he did not review Hamilton’s IA file and that

the allegations in the Complaint were made “based on information which is generally known,

such as the ACLU’s petition.” (Pl.’s Br. 25.) The Court believes the specificity in the

Complaint exceeds the information that was generally known to the public. But that is beside

the point. It is clear that Navas’s associate to whom he assigned the Velez case did, in fact,

review Hamilton’s information and recommend that an answer be filed on his behalf. She

did this at Navas’s direction and in consultation with him. By virtue of his supervisory role

and his specific actions in the Velez matter, it is reasonable to “infer,” by “circumstantial

22

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 22 of 26 PageID: 116
2. The Confidential Information Can Be Used Against Defendants

The abundant confidential information Navasreceived in the prior representations can

certainly be used in this case.

A Monell-type claim seeks to impose municipal liability for a constitutional injury

causally connected to a municipal policy, custom, or practice. The types of information

lawyers may attempt to use to prove such claims mirrors the type of confidential information

and processes that Navas had access to. For example, in order to prove a “custom,” a

plaintiff may show a pattern of misconduct through prior incidents;

17

may introduce evidence of supervisory knowledge of prior unlawful conduct; could show

18

that improper conduct was tolerated or ignored and that remedial action was avoided; could

19

rely on evidence showing a failure to investigate complaints or discipline employees; and

20

could show that there was a failure to keep and maintain proper records and have proper

procedures in place for the investigation of complaints. This is precisely the type of

21

evidence,” that not only did Navas have access to confidential information but that he had

actual exposure to information relating to Defendant Hamilton, either directly or through

communications with Ms. Benjamin regarding the Velez case.

 Beck v. City of Pittsburgh, 89 F.3d 966, 973-76 (3d Cir. 1996).

17

 Stoneking v. Bradford Area School District, 882 F.2d 720, 727-28 (3d Cir. 1989)

18

 Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001)

19

 Bielevicz v. Dubinon, 915 F.2d 845, 850-53 (3d Cir. 1990).

20

Black v. Stephens, 662 F.2d 181, 195-96 (3d Cir. 1981).

21

23

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 23 of 26 PageID: 117
information that Navas had access to, and necessarily would have considered, in defending

countless Monell claims against the City.

Navas also could use intimate knowledge of settlement procedures and protocols

against Defendants. How the City made decisions about settling civil rights cases is highly

valuable confidential information that is not known to non-City attorneys. It is conceivable

that Navas could use this knowledge to benefit his current client, which would be an unfair

advantage.

Moreover, it appears that Navas already has used some confidential information

against Defendants. In the Complaint, Navas specifically pleads “[u]pon information and

belief, Defendant Hamilton has been involved in several prior incidents of police misconduct,

including the illegal use of force, which have never resulted in discipline against this officer

and he has been allowed to remain on the Newark police force.” (Compl., ¶ 24.) In the

Velez case, at a minimum, Navas prepared a memo expressing concern about the disciplinary

histories of certain police officers. That is all that is really needed. Even if not deliberate,

it is reasonable to infer that Navas has used confidential information from the Velez case in

preparing the Complaint in this case.

C. The Monell Claim and Reliance on the ACLU Petition Constitute a

“Substantial Relationship” Per Se

RPC 1.9(a) prohibits representation adverse to a former client in a “substantially

related” matter. Since the scope of a substantially related matter is often complex, Trupos

definitively defined its parameters. The Court has followed the Trupos analysis as set forth

above. However, the Court believes that aspects of this case are so clearly related on their

24

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 24 of 26 PageID: 118
face to Navas’s prior representation of Defendants that no Trupos analysis is even necessary.

In other words, when it comes to Monell, the cases are essentially the same. Specifically,

Navas’s defense of the City and officers in multiple excessive force and Monell claims raises

the identical issue, e.g., Monell, that is raised by Plaintiff against Navas’s former clients. The

facts/proof will be the same.

When representing Defendants, Navas was inescapably privy to extensive statistical

and factual information regarding excessive force claims, which could establish a Monell

claim against the City. This point is driven home by Plaintiff’s reliance on the ACLU

petition. If the petition is accurate, it would establish the paradigm Monell claim. Moreover,

the incident that comprises Plaintiff’s present complaint occurred while Navas was still

employed by the City and still defending the policies now at issue. Indeed, Navas defended

the City in the specific cases cited in the ACLU petition. But now, Navas is suing the City

taking the opposite position. This patent positional conflict illustrates that the Monell issues

are identical in both cases. This proves beyond doubt that Navas’s prior representation is

substantially related to the present case, both as a matter of practicality and fairness.

D. The Conflict Has Not Been Waived

Navas claims that even if his representation violates RPC 1.9(a), Defendants have

waived the conflict because they delayed in seeking his disqualification. This argument is

baseless. Defendants filed their answer on August 17, 2011. On August 31, 2011, an initial

scheduling conference was held before the Undersigned. It was at this conference that

Defendants raised the issue of disqualification, and the motion was filed less than one month

25

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 25 of 26 PageID: 119
later. It is true that a conflict can be waived. See, e.g., Alexander v. Primerica Holdings,

Inc., 822 F. Supp. 1099, 1114 (D.N.J. 1993) (articulating factors to consider in appropriate

circumstances). However, when a case is in its early stages, discovery has not commenced,

and no motions have been filed apart from a disqualification motion, the conflict has not been

waived. See, e.g., Twenty-First Century Rail Corp., 419 N.J. Super. at 364-65.

CONCLUSION

For the reasons set forth above, Defendants’ motion to disqualify is GRANTED.

Plaintiff shall have substitute counsel enter an appearance, or shall enter an appearance pro

se, on or before January 2, 2012. An appropriate order will be entered.

s/Mark Falk

MARK FALK

United States Magistrate Judge

Dated: November 29, 2011

26

Case 2:11-cv-04042-WJM -MF Document 16 Filed 11/29/11 Page 26 of 26 PageID: 120