The practice of law is a professional service. It’s unlike being in business where owners and managers should act ethically, but if they don’t, they merely face the possibility of an angry customer or a bad reputation. Attorneys, if they don’t act ethically, may be suspended from the practice of law or permanently lose their ability to work as an attorney.

Rules of professional conduct are meant to protect clients, potential clients, and attorneys. If they’re followed, the Rules can prevent situations where:

• A client’s interests may not be served by an attorney who, due to actual or potential conflicts, may not be able to do all that’s necessary to help the client, or
• A person may be at an unfair disadvantage because opposing counsel has access to privileged information.

Ideally, you should be represented by the counsel of your choice. That’s generally how it works, but the attorney may be disqualified from representing you for a number of reasons, including if he or she:

• Advocated for the other party prior to the current legal action and the other party doesn’t consent to the attorney representing you, or
• Is likely to be a witness in the matter.

Past involvement in a matter could result in disqualification

Under New Jersey Rule of Professional Conduct (RPC) 1.12,

(a)…a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

(b) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule.

These rules are more than abstract, theoretical, ethical discussions. They cover situations that happen in real life. This rule was the subject of a New Jersey decision in June of 2018.  In Burkhardt v. Kastell, the NJ Appellate Division considered a case where the parties entered into a marital settlement agreement in 2011. Five years later, they entered into a post-judgment consent order that changed provisions covering parenting time. 

The law firm representing Ms. Kastell was the DeTommaso Law Group.  The parties used the services of an attorney there to mediate a resolution of financial disputes that came up due to changes in parenting time.   After two months of mediation and many discussions, the parties agreed to a consent order that changed Mr. Burkhardt’s child support obligation and modified other financial matters.

More than eighteen months later, an attorney from the DeTommaso Law Group, still representing Ms. Kastell, wrote to Mr. Burkhardt’s attorney suggesting mediating new issues that had come up.  The letterhead on the letter showed the parties’ prior mediator was now employed by the DeTommaso Law Group. Mr. Burkhardt’s attorney asked them to stop representing Ms. Kastell.

A mediator is a third-party neutral who helps parties in a dispute to reach a resolution. Their use is very common in New Jersey in divorce cases. During the process, one or both parties may speak frankly with the mediator in private and share confidential information or viewpoints about the case. This is perfectly acceptable, because the mediator has no decision-making authority.  If the mediator later represents one of the parties in the same matter, that confidential information could be used against the opposing party. This is wrong and should never be done.

The DeTommaso Law Group refused to withdraw, and Mr. Burkhardt filed a motion seeking disqualification. The trial court agreed with Mr. Burkhardt and directed the Law Group’s withdrawal. and Ms. Kastell appealed the decision claiming her constitutional rights of due process had been violated because she couldn’t be represented by the attorney of her choice. 

The Appellate Division agreed with the lower court: the mediator couldn’t represent Ms. Kastell without Mr. Burkhardt’s consent because he had mediated their earlier dispute. But the appeals court didn’t agree with the lower court finding that other attorneys at the DeTommaso Law Group were also disqualified, because the firm and the former mediator stated he would not participate or be involved in the matter and another attorney would represent Ms. Kastell.

The trial court disqualified the firm because the judge felt this invented “wall” wouldn’t adequately address Mr. Burkhardt’s discomfort. The Appellate Division stated discomfort is not sufficient grounds for disqualification. It pointed out that RPC 1.12 is meant to address the interests of both parties, not provide for an automatic exclusion of the opposing party’s counsel. The appeals court found this “wall of silence” between attorneys at the same firm would suffice to protect Mr. Burkhardt.

The court system doesn’t want an attorney representing a party to also be a witness

Another rule potentially disqualifying attorneys is RPC 3.7, which states:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case;

(3) disqualification of the lawyer would work substantial hardship on the client.

The lawyer must be “likely to be a necessary witness”, which is language meant to prevent unfairness to the opposing party. A statement of intent to call the attorney as a witness at trial wouldn’t be enough, by itself, to show necessity and likelihood.  A witness would be “necessary” if there are no documents or other witnesses that can be used to introduce the relevant evidence.

A party trying to disqualify an attorney must show the likelihood the attorney will be a necessary witness at trial. If it’s not clear from the evidence whether or not the testimony is actually necessary, the motion should be denied. The court would need to balance the parties’ competing interests, weighing the need to keep up high ethical standards of the profession against a client’s right to choose his or her attorney. Of course, the party fighting to keep the lawyer in the case may later lose that attorney, if the facts at the time of trial require his or her withdrawal. This is a risk that the lawyer must make known to the client in advance, and the client must accept or reject that advice, preferably in writing. If withdrawal is later mandated by the court, the client in retrospect will find the lawyer’s prolonged participation an expensive mistake.

The importance of honest communication before legal representation

It’s unusual that an attorney will be found disqualified from a given case due to ethical concerns, but it does happen. It’s one of the reasons we have in-depth conversations with potential clients before we take a case. It allows us to judge whether there are ethical problems before we commit to representing someone. If we feel we can’t take on a case, we will suggest the person speak to another attorney outside the firm who could competently meet their needs.

If you are considering a divorce or other civil or criminal law action, call the Central Jersey law offices of Kingston Law Group at 609-683-7400, or contact us online.  We provide a reduced fee initial consultation, in which we will discuss your facts, explain the applicable laws, and advise you about your best pathways to protect your legal rights and interests.  Call now.  You will be glad you did.