indicating that “the Third Circuit does not recognize a settlement privilege.”
How later courts described this case
- indicating that “the Third Circuit does not recognize a settlement privilege.”
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
VINCENT and DEBORAH ESPOSITO, :
: Civil Action No. 19-19030-KM-AME
Plaintiffs, :
:
v. : OPINION & ORDER
:
RIDGEWOOD BOARD OF :
EDUCATION, et al., :
:
Defendants. :
:
ESPINOSA, Magistrate Judge
This matter comes before the Court on Plaintiffs’ motion “to remove defense counsel.”
[D.E. 23] Plaintiffs seek the disqualification of Defendants’ counsel, Jeffrey Merlino, on the
grounds that he is a fact witness and, therefore, his continuing representation of Defendants in
this matter creates a conflict in violation of Rule 3.7(a) of the Rules of Professional Conduct.
Defendants oppose the motion. The Court has considered the parties’ submissions and,
additionally, the arguments they presented during the June 1, 2021 conference conducted on the
record. For the reasons that follow, the motion to disqualify Defendants’ counsel is denied.
I. BACKGROUND
In brief, this action arises out of a dispute between Plaintiffs Vincent and Deborah
Esposito, proceeding pro se, and Defendants Ridgewood Board of Education (“Ridgewood
BOE”), Daniel Fishbein and Lorna Oates-Santos concerning an incident involving Plaintiffs’
twin sons, who attended the Somerville Elementary School in Ridgewood, New Jersey, at the
relevant time. The incident resulted in a ban on Mr. Esposito from all property belonging to the
Ridgewood BOE, which was imposed on January 8, 2019 (hereinafter the “January 2019 Ban”).
Among other claims asserted in the Complaint, Plaintiffs allege that Defendants have violated
their First and Fourteenth Amendment rights by imposing the January 2019 Ban and have caused
them economic loss and other hardships, including incurring costs to educate their sons outside
of the Ridgewood School District and, ultimately, having to relocate from the town altogether.1
II. THE PARTIES’ ARGUMENTS
In this motion, Plaintiffs maintain Defendants’ counsel, Mr. Merlino, possesses crucial
information about the status of the January 2019 Ban, and, more specifically, about whether and
when it was lifted. According to Plaintiffs, during a February 2021 settlement conference with
the Court, Mr. Merlino expressed that the January 2019 Ban was no longer in effect, in light of
the fact that Mr. Esposito, to whom the January 2019 Ban applied, no longer lives in Ridgewood.
Plaintiffs further contend Mr. Merlino also stated at the conference that he had previously shared
this information with Plaintiffs, a fact they disputed. Upon further investigation following the
conference, Plaintiffs learned from Mr. Merlino that, according to him, he had communicated
with Susan Clark, the attorney who represented Plaintiffs before this lawsuit was filed, and
advised her the January 2019 Ban was lifted in June 2019. Plaintiffs contend they first learned of
this upon Mr. Merlino’s statements during and shortly after the settlement conference. Their
motion argues:
While it is our understanding that communication during settlement
discussions is typically inadmissible in court, I am nevertheless bringing
to the Court’s attention that Mr. Merlino, counsel for the defendant, has
presented information about his conversation with our prior attorney.
Therefore, it appears if the defendants were to offer evidence that the ban
1 The factual and procedural history of this action are discussed more fully in the Court’s recent
Opinion and Order, issued June 1, 2021, which resolved a discovery motion filed by Plaintiffs.
2
was lifted or dispute that the ban was not lifted, that Mr. Merlino and our
prior attorney would be potential witnesses at trial.
(Pl. Mot. at 3.) Based on the foregoing, Plaintiffs maintain they have become aware Mr. Merlino
is likely to be a fact witness as to the status of the January 2019 Ban. Plaintiffs also suggest Mr.
Merlino’s testimony constitutes the only evidence regarding this subject.
Defendants, in opposition, argue Mr. Merlino is not a witness to either the imposition or
the lifting of the January 2019 Ban. Rather, they maintain, Mr. Merlino has simply obtained
information from Defendants in the course of representing them, prior to and during this
litigation, and has communicated settlement offers to Plaintiffs and/or their former counsel. In
particular, Defendants assert Mr. Merlino conveyed Defendants’ offer to lift the January 2019
Ban, referring to a March 2019 email he sent to Ms. Clark, in which he stated Dr. Fishbein would
review the ban at the end of the school year in June 2019. Defendants further assert Mr. Merlino
told Ms. Clark in June 2019 that the January 2019 Ban was lifted. Defendants maintain there is
no conflict under Rule 3.7, as neither Mr. Merlino’s communication with Plaintiffs’ prior counsel
to resolve the parties’ dispute nor his knowledge of the January 2019 Ban’s status renders him a
fact witness.
After briefing on this motion had closed, Plaintiffs filed two additional submissions in
further support of their motion, on May 21 and 24, 2021, respectively. These submissions appear
to have been prompted by the May 21, 2021 filing of Defendants’ opposition, dated February 25,
2021. Defendants’ filing was made at the Court’s request because their opposition papers did not
appear on the docket. Plaintiffs’ additional submissions reiterate their argument that Mr. Merlino
3
has improperly divulged confidential settlement communications, a position Plaintiff had
previously expressed in their reply brief.2
III. DISCUSSION
Pursuant to Local Civil Rule 103.1(a), the conduct of attorneys admitted to practice
before the District of New Jersey is governed by the Rules of Professional Conduct (“RPC”) of
the American Bar Association, as revised by the New Jersey Supreme Court. While an attorney
may be disqualified for violating an ethical rule, “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) (quotations omitted); see also
Alvarez v. Am. Lafrance, LLC, No. 15-8446 (KSH), 2017 WL 2709562, at *2 (D.N.J. June 23,
2017) (noting that “disqualification is a harsh remedy which must be used sparingly.”) (citation
omitted). When presented with a motion to disqualify an attorney, a court must balance the need
to maintain high professional standards against the deference owed to a party’s choice of
counsel. Dantinne v. Brown, No. 17-0486 (JHR/JS), 2017 WL 2766167, at *2 (D.N.J. June 23,
2017) (citing City of Atlantic City v. Trupos, 201 N.J. 447, 462 (2010)); see also United States v.
Boston Scientific Neuromodulation Corp., No. 11-1210 (SDW), 2013 WL 2404816, at *4
(D.N.J. 2013) (“Permitting a litigant to retain his or her choice of counsel is a countervailing
2 The Court notes Plaintiffs’ reply brief specifically references and responds to Defendants’
February 25, 2021 opposition, arguing “Mr. Merlino has opened the door to sharing our
settlement discussions by submitting his Exhibit A ‘a true copy of the settlement
communication’ in his opposition brief to Your Honor.” (Pl. Reply at 2) (quoting Defendants’
opposition). There is no doubt the opposition was timely served on Plaintiffs and Plaintiffs had a
fair opportunity to respond. The Court further notes Plaintiffs’ additional submissions were filed
in contravention of Local Civil Rule 7.1, which governs motion practice. Following the filing of
a motion and its supporting papers, the rule permits only opposition and reply papers; sur-replies
are expressly prohibited without permission of the Court. See L. Civ. R. 7.1(d)(5) and (6).
4
policy to be considered against disqualification.”). A motion for disqualification must be
supported by facts, which a court must closely scrutinize “to prevent unjust results.” Carlyle
Towers Condominium Ass’n v. Crossland Sav., FSB, 944 F. Supp. 341, 345 (D.N.J. 1996); see
also Carreno v. City of Newark, 834 F. Supp. 2d 217, 224 (D.N.J. 2011) (holding same). Indeed,
“surmise alone cannot support an order of disqualification.” Carreno, 834 F. Supp. 2d at 224
(quoting Trupos, 201 N.J. at 469). In light of the foregoing considerations, courts in the District
of New Jersey have consistently held the movant “must carry a ‘heavy burden’ and must meet a
‘high standard of proof’ before a lawyer is disqualified.” Carlyle Towers, 944 F. Supp. at 345
(quoting Alexander, 822 F. Supp. at 1114).
In this case, Plaintiffs ask the Court to disqualify Defendants’ counsel on the grounds that
he is a witness whose testimony will be required to establish that the January 2019 Ban was
lifted at some point, perhaps even before this lawsuit was filed. This, Plaintiffs argue, presents a
conflict in violation of RPC 3.7, which provides, in relevant part:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship
on the client.
RPC 3.7(a). To demonstrate an attorney is likely to be a “necessary witness” within the meaning
of Rule 3.7, a movant must present evidence the attorney possesses crucial information that
5
“cannot be obtained through any other means, including through alternative witnesses.”
Dantinne, 2017 WL 2766167, at *4 (citing Boston Scientific, 2013 WL 2404816, at *7). “If it is
unclear from the record as to whether the attorney’s testimony is necessary, the motion should be
denied.” Id.
Here, Plaintiffs have failed to carry their heavy burden of demonstrating Mr. Merlino’s
disqualification is warranted. The sole basis for Plaintiffs’ contention that Mr. Merlino is likely
to be a witness as to whether and when the January 2019 Ban was lifted is that, either during the
February 2021 settlement conference or shortly thereafter, Mr. Merlino advised Plaintiffs of his
previous communication with Plaintiffs’ former counsel regarding this subject. Their motion sets
forth as follows:
The issue before the Court is whether the ban is still in effect. Mr. Merlino
has for the first time communicated to me on 2/23/21 that the ban was
lifted in June 2019, and that he communicated that fact to our previous
attorney Susan Schroeder Clark, Esq. Mr. Merlino’s communication
appears to have made him a factual witness in this case. The defendants
have never presented any written evidence that the ban was lifted. This
evidence appears to be purely testimonial in nature by Mr. Merlino.
(Pl. Mot. at 5-6.)
Missing from Plaintiff’s motion is any evidence that Mr. Merlino is a witness to the
lifting of the January 2019 Ban, much less a necessary one. Plaintiffs argue that determining
whether the January 2019 Ban has or has not been in effect throughout this entire litigation is
crucial information relating to their claims because it may contravene Defendants’ position in
defending this lawsuit. However, Plaintiffs have not demonstrated Mr. Merlino has any firsthand,
personal knowledge on that subject. To the extent Mr. Merlino became aware the January 2019
Ban was extinguished, the record indicates that he learned the information from the parties he is
6
representing. Moreover, Plaintiffs’ position that Defendants’ counsel must be disqualified under
RPC 3.7(a) is based on their unfounded assertion that Mr. Merlino’s testimony is the only
evidence concerning the status of the January 2019 Ban. Even assuming Mr. Merlino were a fact
witness, that is, he somehow became aware of the lifting of the January 2019 Ban from personal
involvement or observation and not from information shared with him by his clients, Plaintiffs
have failed to demonstrate he would be a necessary witness. Rather, evidence on this subject can
be presented at trial through the testimony of other witnesses, such as the relevant individual
defendants or Ridgewood BOE decisionmakers who took action with respect to the imposition,
enforcement, and/or lifting of the January 2019 Ban.
The Court appreciates that, based on conversations with Mr. Merlino during and shortly
after the settlement conference, Plaintiffs may reasonably be interested in gathering information
about the status of the January 2019 Ban, including details about whether it remains in place and,
if no longer effective, when and under what circumstances it was lifted. These questions can be
explored in a straightforward interrogatory directed to Defendants. Plaintiffs’ interest in
discovery on this topic does not support their contention that Mr. Merlino is a fact witness
simply because he may have told Plaintiffs’ former counsel the January 2019 Ban was lifted.3
Even if the possibility of disqualification were more colorable in this case, such a remedy
is premature. Courts in this district have consistently held that, based on the express language in
3 To the extent Plaintiffs argue Mr. Merlino is a necessary witness as to his communications with
Ms. Clark, the argument is unavailing. That Mr. Merlino may have communicated with
Plaintiffs’ former counsel and conveyed information to her that he learned from his clients in an
effort to resolve the dispute, is not unusual in any way. More important, the conveyance of such
information between opposing counsel, especially when obtained second-hand by a lawyer from
his client, is not competent evidence upon which a party may rely to prove or defend against
legal claims. Rather, here, the relevant witness is the actor, not the advocate.
7
Rule 3.7(a) prohibiting a hybrid attorney-witness at the time of trial, an attorney with a potential
conflict under the rule is not disqualified from representing a party during the pre-trial stage.
Main Events Prods., LLC v. Lacy, 220 F. Supp. 2d 353, 355 (D.N.J. 2002); see also Dantinne,
2017 WL 2766167, at *4 (citing various cases). “An attorney is not disqualified immediately
even if he will likely become a necessary witness at trial.” Boston Scientific, 2013 WL 2404816,
at *7. This case is still in its pre-trial stage, and, therefore, a conflict under Rule 3.7(a), even
assuming one were later demonstrated to exist, would not require immediate disqualification of
counsel.
Additionally, the Court wishes to address Plaintiffs’ argument that Mr. Merlino has
impermissibly divulged confidential settlement discussions in filing his opposition to this motion
and should, therefore, be disqualified from continuing to represent Defendants. The argument is
inapposite to the motion before the Court, and unavailing. Plaintiffs appear to confuse
evidentiary principles with privilege doctrines. Federal Rule of Evidence 408 indeed prohibits
the use of settlement discussions to prove liability at trial, but Plaintiffs cite no authority that the
Third Circuit recognizes a “settlement privilege.” See Ford Motor Co. v. Edgewood Props., 257
F.R.D. 418, 423 (D.N.J. 2009) (indicating that “the Third Circuit does not recognize a settlement
privilege.”). Moreover, Plaintiffs have no cause to complain about Mr. Merlino’s reliance on his
communication with their former counsel in Defendants’ opposition to the disqualification
motion, as it was Plaintiffs themselves who put that communication at issue. Indeed, the
communication has, since the initiation of this motion, undergirded their contention that
Defendants’ attorney is a potential witness.
8
In sum, Plaintiffs have fallen short of satisfying their burden of establishing Mr.
Merlino’s disqualification is warranted.
IV. CONCLUSION AND ORDER
For the foregoing reasons,
IT IS on this 12th day of July 2021,
ORDERED that Plaintiffs’ motion to disqualify Defendants’ counsel [D.E. 23] is
DENIED.
/s/ André M. Espinosa
ANDRÉ M. ESPINOSA
United States Magistrate Judge
9