The opinion
[Doc. No. 49]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JILL DELCONTE,
Plaintiff,
v. Civil No. 19-13731 (RBK/JS)
MONROE TOWNSHIP BOARD OF
EDUCATION, et al.
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendants George Caruso,
Charles Earling, and Monroe Township Board of Education’s
(collectively, “defendants”) “Motion to Disqualify Plaintiff’s
Counsel” (“Motion”) [Doc. No. 49]. The court is asked to decide if
plaintiff’s counsel can simultaneously represent two co-employees
who sued the same target defendant. The Court received plaintiff’s
opposition1 [Doc. No. 55] and defendants’ reply [Doc. No. 56] and
recently held oral argument. For the reasons to be discussed,
defendants’ motion is DENIED.
1 In addition to plaintiff’s opposition brief, plaintiff submitted
affidavits from DelConte and Yoder for the Court’s in camera
review. See Doc. No. 53. In reaching its decision, the Court did
not rely on the contents of the affidavits except the averments
making it apparent that DelConte and Yoder consent to
Pescatore’s representation with full knowledge about the details
of defendants’ motion to disqualify.
Background
Jill DelConte (“plaintiff”), through her attorney Richard M.
Pescatore, Esquire (“Pescatore”), originally filed this action in
the Superior Court of New Jersey on May 29, 2019 against the
District of Monroe Township Board of Education (“District”),
Charles Earling, George Caruso, and John Does 1-10. See Notice of
Removal Ex. A [1-3]. In her complaint, plaintiff alleges defendants
violated 42 U.S.C. §§ 1983, 1985, and 1988 by engaging in conduct
which violated her rights under the First and Fourteenth Amendments
of the U.S. Constitution. Id. at ¶ 15. Plaintiff alleges defendants
unlawfully demoted her as Principal of Williamstown High School
for reasons of political affiliation and speech. Id. Plaintiff’s
complaint further alleges defendants’ conduct violated the New
Jersey Civil Rights Act. Id. at ¶ 18. As part of the relief
requested, plaintiff seeks reinstatement to her former position as
Principal of Williamstown High School. Id. On June 13, 2019,
defendants removed the case to federal court. See Notice of Removal
[Doc. No. 1]. On July 31, 2019, plaintiff amended her complaint to
include an additional allegation of an adverse employment action.
Doc. No. 9. Plaintiff’s amended complaint alleges defendants
lowered her interview scores when she applied for the District’s
Assistant Superintendent position because of her political
affiliation. Id. Plaintiff’s second amended complaint was filed on
January 8, 2020. Doc. No. 25.
On May 13, 2020, Pescatore filed a complaint in state court
on behalf of Catherine Yoder (“Yoder”), another District employee,
against the District and its Superintendent, Dr. Richard Perry.
See Opp’n Br. at 3 [Doc. No. 55]. Yoder’s complaint alleges Perry
retaliated against her and violated her rights protected by CEPA
and the New Jersey Constitution after she reported unlawful conduct
of supervisory personnel. Id. Yoder also alleges she was passed
over for the principal position at Williamstown High School,
demoted from the acting principal position, and replaced with
someone less qualified. Id.
On June 8, 2020, defendants’ counsel sent a letter to
Pescatore stating there was a possible conflict in his
representation of DelConte. See Defense Exhibit L [Doc. No. 51];
see also Opp’n Br. at 4. Defendants’ counsel alleged that
Pescatore’s representation of Yoder and DelConte presented a
conflict because both clients were District employees and had
similar claims for relief. Id. Immediately after being advised
that Yoder’s complaint included a claim for reinstatement, Yoder
amended her complaint and removed the request for reinstatement.
Id. On June 9, 2020, the parties met with the Court to discuss the
potential conflict. The Court Ordered defendants to file a motion
if they requested to disqualify plaintiff’s counsel. Doc. No. 48.
The case is presently stayed until defendants’ motion is decided.
As discussed, defendants move to disqualify Pescatore and his
law firm from representing plaintiff due to his dual representation
of plaintiff and Yoder. Defendants allege Pescatore’s concurrent
representation of DelConte and Yoder is a conflict that violates
New Jersey’s Rule of Professional Conduct (“RPC”) 1.7(a).
Defendants claimed in their motion that when DelConte was
transferred from the Williamstown High School Principal position
to the Principal position at Radix Elementary, she was replaced by
Yoder who was named acting principal of the high school. Id. at 9.
Defendants allege the position was later filled by Jeffrey Johnson
and Yoder resumed her position as Assistant Principal. Id.
Therefore, defendants allege, DelConte’s allegation that she was
replaced by an individual with lesser qualifications necessarily
includes Yoder. Id. Defendants also claim a conflict exists because
Yoder and DelConte applied for the District’s Assistant
Superintendent position which DelConte alleges she did not receive
because of her political affiliation. Id. at 10. Defendants allege
Pescatore’s representation of DelConte will be directly adverse to
Yoder and there is a significant risk that his representation of
DelConte will be materially limited by his responsibilities to
Yoder. Id. at 19. Defendants further allege Pescatore does not
know how DelConte and Yoder will respond when they are cross
examined and deposed by defendants, and asked whether they were
the most qualified person for the District’s Assistant
Superintendent position and the Williamstown High School Principal
position. Reply Br. at 12. Last, defendants allege that DelConte
will not be prejudiced by Pescatore’s disqualification as counsel
because the case is in its early stages. Id. at 27-29.
In opposition, plaintiff alleges defendants’ motion should be
denied because defendants have failed to meet their burden of proof
as there are no facts to support the existence of a concurrent
conflict under RPC 1.7. Opp’n Br. at 15. Plaintiff claims
Pescatore’s representation of Yoder in her state court matter and
DelConte in this matter “does not and will never present a
circumstance where ‘representation of one client will be directly
adverse to another client.’” Id. at 1. Plaintiff alleges that
nowhere in the record does DelConte or Yoder allege that “less
qualified individuals” related to anyone other than Jeffrey
Johnson for DelConte and Angelo DeStefano for Yoder. Id. at 5.
Plaintiff alleges defendants are incorrect when they state that
Yoder was named “interim principal” after DelConte was removed as
principal of Williamstown High School.2 Id. at 7. Plaintiff further
alleges that DelConte’s allegation regarding the manipulation of
interview scores has nothing to do with Yoder. Id. at 10. Plaintiff
claims that by the time DelConte’s scores were manipulated, Yoder
2 At oral argument, it was clarified that the correct
chronological order for the Williamstown High School principal
position is as follows: DelConte, Jeffrey Johnson, Yoder as
“acting” principal, and Angelo DeStefano.
voluntarily withdrew her application for the position. Id.
Plaintiff also claims Yoder does not seek reinstatement,
therefore, no claim for relief that DelConte makes or seeks is
adverse to Yoder. Id. at 2. Therefore, plaintiff alleges the extent
of Yoder’s involvement in the case is as a witness, Yoder’s
testimony is favorable, and her claims do not involve conduct over
which Yoder had any control or involvement. Id.
Discussion
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. Admin. Office of Courts-
Prob. Div., 225 F.R.D. 120, 136-37 (D.N.J. 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)); Carlyle Towers, 944 F. Supp. at 345.
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.
(citation omitted). 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
its balancing “involves a ‘painstaking analysis of the facts and
precise application of precedent.’”
RPC 1.7(a) provides, “a lawyer shall not represent a client
if the representation involves a concurrent conflict of interest.”
N.J. COURT RULES, RPC 1.7(a). “A concurrent conflict of interest
exists if: (1) the representation of one client will be directly
adverse to another client; or (2) there is a significant risk that
the representation of one or more clients will be materially
limited by the lawyer’s responsibilities to another client . . .”
Id. However, RPC 1.7(b) permits a lawyer to represent a client
when a concurrent conflict of interest exists if:
(1) each affected client gives informed consent,
confirmed in writing, after full disclosure and
consultation ... [w]hen the lawyer represents multiple
clients in a single matter, the consultation shall
include an explanation of the common representation and
the advantages and risks involved; (2) the lawyer
reasonably believes that the lawyer will be able to
provide competent and diligent representation to each
affected client; (3) the representation is not
prohibited by law; and (4) the representation does not
involve the assertion of a claim by one client against
another client represented by the lawyer in the same
litigation or other proceeding before a tribunal.
N.J. COURT RULES, RPC 1.7(b). With respect to the lawyer’s reasonable
belief that the representations may continue, the test is a
combined subjective and objective standard. Not only must the
attorney actually believe that the client relationship will not be
adversely affected, that belief must be reasonable under the
circumstances. See Whitman v. Estate of Whitman, 259 N.J. Super.
256, 263 (Law Div. 1992).
The Court finds there is no conflict of interest with regard
to Pescatore’s representation of DelConte and Yoder. Therefore,
defendants’ motion will be denied. As an initial matter, DelConte
and Yoder present separate and unrelated claims. DelConte alleges
she was removed as principal of Williamstown High School because
of her political affiliation while Yoder alleges she was not
selected as the principal of the school years after DelConte was
removed. The only similarities between their claims is that they
both allege they were wronged by the District. This does not create
a conflict. Importantly, the record indicates that DelConte’s
claim that she was replaced by someone “less qualified” relates to
Jeffrey Johnson while Yoder’s claim relates to being replaced by
Angelo DeStefano. Thus, contrary to the crux of defendants’
argument, DelConte and Yoder do not need to compare their
qualifications to each other.
Defendants’ allegation that a conflict exists because Yoder
and DelConte both applied to be the District’s Assistant
Superintendent is not determinative. The record indicates that
Yoder removed herself from consideration before DelConte’s
application was considered. Thus, there is no need to compare the
qualifications of DelConte to Yoder. This being the crux of
defendants’ conflict argument, their motion must fail. Based on
their different liability allegations, and the fact that Yoder did
not replace DelConte and vice versa, there is no need for DelConte
or Yoder to impeach each other’s performance or qualifications.
Therefore, DelConte and Yoder’s interests are not adverse, nor do
they create a risk that Pescatore’s representation of either one
will be materially limited.
Defendants’ arguments for why a conflict exists are based on
conjecture which is not a sufficient basis upon which a
disqualification motion may be granted. Instead, an actual
conflict must exist, not speculation about what may exist in the
future. See Reddy v. Patel, Civil Action No. 16-8256, 2019 WL
5677779, at *12 (D.N.J. Nov. 2019). An instructive case is Reddy.
In Reddy, defendant and third-party plaintiff Ghanshyam Patel
(“Sam”) filed a motion to disqualify Archer & Greiner, P.C.
(“Archer Law”) from the representation of defendant Atul K. Patel
(“Atul”) and defendant Dharmendra Barot (“Barot”) (collectively,
“defendants”). Reddy, 2019 WL 5677779, at *2. Plaintiff filed an
action against defendants and Sam pursuant to 28 U.S.C. § 1441.
Id. at *3. Sam filed an answer to the complaint and filed a third-
party complaint against defendants and asserted cross claims
against East Hanover Hotel and Conference Hospitality LLC
(“Hospitality”). Id. Sam’s claims included breach of contract,
membership oppression, breach of fiduciary duties and fraud. Id.
Hospitality filed its answer to Sam’s crossclaims and stated that
Sam was not a member of Hospitality. Id. at *4. In bringing its
motion, Sam did not argue that he was individually represented by
Archer Law, but rather that Archer Law represents, and represented,
the entities Sam was seeking to bring a derivative claim on behalf
of as an alleged minority member. Id. at *10. The Court held that
“a New Jersey court [should] not disqualify counsel based on a
potential conflict.” Id. at *11. The court further held it was
undisputed that Atul and Barot held an interest in Hospitality;
however, Sam’s interest was disputed by defendants and
Hospitality. Id. at *12. As a result, the court held Sam’s argument
was premature and refused to disqualify Archer Law based on a
potential conflict that may or may not arise. Id. The court held
that Sam failed to meet his burden to establish that
disqualification of Archer Law was appropriate and denied Sam’s
motion. Id.
Like in Reddy, defendants have not met their burden of proving
a conflict of interest exists. Defendants’ argument boils down to
the position that a conflict of interest “may” arise. For example,
defendants allege a conflict may arise when Yoder is cross examined
or deposed by defendants. These types of arguments are speculative
and insufficient to warrant disqualification. The disqualification
of counsel is a “drastic measure” that should only be granted when
warranted by existing not possible conditions. See Alexander, 822
F. Supp. at 1114. Likewise, the fact that Yoder and DelConte may
be witnesses in each other’s cases is insufficient by itself for
the Court to conclude a conflict exists.
Defendants primarily rely on Bosire and Cendant to argue
that Pescatore should be disqualified. See Mot at 19-23; see
also Bosire v. Passaic Cty., 2016 U.S. Dist. LEXIS 28008, at *5;
In re Cendant Securities Litigation, 124 F.Supp.2d 235, 242
(D.N.J. 2000). In Bosire, plaintiff filed a motion to disqualify
defendants’ counsel from representing non-party Lynn Pappas-
Toledo (“Ms. Pappas-Toledo”) and defendant Irene Jessie-Hunte
(“Jessie-Hunte”). Bosire, 2016 U.S. Dist. LEXIS 28008, at *2.
The plaintiffs, Ms. Pappas-Toledo, and defendant Jessie-Hunte,
were employed by the Passaic County Department of Health (“the
County”). Id. Defense counsel represented Ms. Pappas-Toledo and
defendant Jessie-Hunte. Id. In support of their motion,
plaintiffs contended that discovery revealed that Ms. Pappas-
Toledo not only observed Jessie-Hunte’s abusive behavior but was
also subjected to such in the form of “ongoing harassment and
disparate treatment.” Id. at *3. As a result, plaintiffs alleged
defense counsel should be disqualified from representing Ms.
Pappas-Toledo and Jessie-Hunte because of the manifest conflict
with respect to the County’s interest and defenses. Id. at **3-
4. The court held that plaintiffs demonstrated that “in view of
the totality of circumstances, there are plain and interwoven
conflicts . . . that warrant the disqualification sought.” Id.
at *6.
In Cendant, the law firm of Paul, Weiss, Rifkind, Wharton &
Garrison (“Paul Weiss”) sought to represent two clients despite
a direct conflict of interest under RPC 1.7(a). Paul Weiss
represented Amy Lipton (“Lipton”) who became the Deputy Counsel
and Executive Vice-President of Cendant after CUC merged with
HFS to form Cendant in 1997. Cendant, 124 F.Supp.2d at 237.
Lipton was named as the defendant in one of the many lawsuits
brought against Cendant until she was dismissed by the court for
lack of personal jurisdiction. Id. at 237. Since then, Lipton
was served with a subpoena requesting documents relating to
various aspects of the alleged fraud in the matter and was
represented by Paul Weiss with regard to her response to the
subpoena. Id. Ernst & Young (“E&Y”) was the accounting firm that
brokered the merger that precipitated the lawsuits. Id. at 238.
E&Y was represented by Theodore Wells (“Wells”), who was then a
member of Lowenstein Sandler, P.C. (“Lowenstein Sandler”). Id.
at 237-38. A conflict arose when Wells left Lowenstein Sandler
and took his practice to Paul Weiss, which was already
representing Lipton. Id. at 238. E&Y filed a motion for
declaratory judgment that Wells may represent E&Y even though he
left Lowenstein Sandler and now worked at Paul Weiss who also
represented Lipton in the matter. Id. at 237. The court held
that Lipton’s testimony was adverse to E&Y because of the nature
of her former position at Cendant and to the extent that she was
expected to testify about the alleged wrongdoing of E&Y. Id. at
243. The court further held that Wells’ representation of E&Y
was a violation of RPC 1.7(a) and that without Lipton’s informed
consent, Paul Weiss may not represent E&Y under RPC 1.7(a) and
(b). Id. at 244. As a result, the court denied E&Y’s motion for
a declaratory judgment. Id. at 250.
The facts of both cases are distinguishable. In Bosire and
Cendant, there was an actual and clearly identifiable conflict
of interest. In Bosire, for example, an actual conflict existed
because counsel represented defendant and a witness who was
going to testify about defendant’s improper conduct as well as
her experience as a victim of his conduct. In Cendant, the court
agreed that there was a clear conflict of interest because Paul
Weiss sought to represent a defendant and at the same time
represent a witness who was going to testify against the
defendant’s interest. Therefore, in both Bosire and Cendant, the
potential witnesses were directly adverse to counsel’s client.
In this case, DelConte and Yoder do not have adverse interests
and Yoder’s testimony will not be adverse to DelConte.
Defendants allege a conflict is likely to arise because
DelConte’s claim that she was replaced with someone less
qualified includes Yoder. However, as plaintiff’s opposition and
the affidavits provided by Yoder and DelConte make clear,
DelConte will compare her qualifications to Jeffrey Johnson, not
Yoder.
Because no conflict exists, a RPC 1.7(b) waiver analysis is
unnecessary. However, for purposes of completeness, even if a
conflict existed defendants’ motion would still be denied.
Defendants allege in their motion that a potential conflict
cannot be waived because a public entity such as the District
cannot waive a conflict. Mot. at 15. Pursuant to RPC 1.7(b),
however, only Yoder and DelConte are required to waive a
potential conflict because they are Pescatore’s clients. The
case law cited by defendants is inapposite given that Pescatore
does not represent the District. Further, any potential conflict
has been waived pursuant to RPC 1.7(b). As set forth in their
affidavits, DelConte and Yoder have provided their informed
consent in writing after full disclosure. Further, Pescatore
reasonably believes he will be able to provide competent and
diligent representation to Yoder and DelConte. The Court finds
his belief is objectively reasonable under the circumstances.
See Whitman, 259 N.J. Super. at 263. In addition, Pescatore’s
actual representation is not prohibited by law. Thus, if a
conflict did exist, it has been sufficiently consented to
pursuant to RPC 1.7(b).
Conclusion
Accordingly, for all the foregoing reasons, it is hereby
ORDERED this 16th day of October 2020, that defendants’ “Motion to
Disqualify Counsel” [Doc. No. 49] is DENIED.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge