BELL v. CUMBERLAND COUNTY et al

Filing 86

OPINION FILED. Signed by Magistrate Judge Joel Schneider on 5/23/12. (js)

[Doc. No. 65]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAIME M. BELL, Administrator
Ad Prosequendum of Estate of
Steven Charles Bell,
Civil No. 09-6485 (JHR/JS)
Plaintiff,
v.
CUMBERLAND COUNTY, et al.,
Defendants.
OPINION
This matter is before the Court on “Plaintiff’s Motion to
Disqualify Counsel for the Cumberland County Defendants” [Doc. No.
65] (hereinafter “defendants”).

The Court received defendants’

opposition, the parties’ supplemental submissions, and held two
hearings.1

While the Court is convinced that defense counsel could

have and should have done some things differently, plaintiff's
motion is nevertheless denied.
BACKGROUND
This case arises from the death of Steven Bell (“Mr. Bell”).
On December 31, 2007, Mr. Bell was arrested due to an apparent

1

The Court received affidavits from plaintiff Jaime Bell
(December 8, 2011 (reviewed in camera) and March 12, 2012),
Brendan Kavanagh, Esquire (February 21, 2012), Victoria Kavanagh,
Esquire (February 22, 2012), Kimberly A. Procopio, Esquire
(February 17, 2012), Barbara Butcher (March 22, 2012 and April 5,
2012), Stephanie Custodio (March 22, 2012), Ella McDonell (March
22, 2012) and Janis Webster (March 22, 2012 and April 5, 2012).
Hearings and oral argument were held on February 6, 2012 and
March 30, 2012.

domestic altercation and taken to Cumberland County Jail.
Complaint ¶18.

Amended

On January 1, 2008, at approximately 2:30 p.m., Mr.

Bell was found unconscious and unresponsive in his cell.

Id. ¶23.

Plaintiff, Jaime M. Bell, alleges Mr. Bell was “viciously and
brutally beaten.”2

Id. ¶24.

Plaintiff also alleges the assailants

could only have been corrections officers, inmates or detainees.
Id. ¶25.

Plaintiff further alleges defendants were deliberately

indifferent to Mr. Bell’s serious medical needs.

Id. ¶¶ 27-30.

Mr.

Bell died on January 10, 2008.
Mr. Bell’s original autopsy report from the Office of the
Medical Examiner of the City of Philadelphia (“Medical Examiner”)
concluded that his death was a homicide, e.g., blunt force trauma to
the back of the head.

In addition, the February 7, 2008 report

prepared by the Vineland Police Department (“VPD”) referred to the
possibility that Mr. Bell was injected (by himself or someone else)
with a high dose of insulin.

On February 2, 2011, the Medical

Examiner amended the manner of death to “undetermined.”

The amended

report concluded: (1) Mr. Bell’s brain injuries may have been caused
by attempts to rouse him from a coma rather than an assault; (2) the
autopsy could not discern the relative contribution of brain injury
from

severe

hypoglycemia

and

mechanical

brain

trauma

in

the

causation of the death, and (3) if Mr. Bell injected himself with
insulin, it was not known whether he attempted to commit suicide or

2

The Court acknowledges defendants’ argument (discussed
herein) that Ms. Bell is a plaintiff in her representative
capacity, not her individual capacity.
2

if the injection was intended to get attention and/or his release
from custody.
County

Mr. Bell’s death was investigated by the Cumberland

Prosecutor’s

Office

(“CCPO”)

who

decided

not

to

press

criminal charges.
Mr. Bell’s death was extensively investigated by the VPD and
the CCPO.

Their reports, and those of the Medical Examiner, reveal

that the cause of Mr. Bell's death is likely to be vigorously
contested.

Although defendants deny that Mr. Bell was beaten, the

Court does not presently know what if any reason they will give at
trial as to the cause of Mr. Bell's death.

It is no secret that

plaintiff’s mother-in-law accused plaintiff of injecting her son
with insulin.3

In addition, at all relevant times it was widely

known that plaintiff and Mr. Bell had a “rocky” relationship that
resulted in several domestic violence complaints.
This

lawsuit

was

filed

on

December

23,

2009.

The

named

plaintiff is “Jaime M. Bell, as Administrator Ad Prosequendum and as
Administrator of the Estate of Steven Charles Bell, Deceased.”

As

noted, Jaime M. Bell is Mr. Bell’s widow and the mother of his two
children. Defendants were originally represented in this lawsuit by
Steven L. Rothman, Esquire, of Lipman Antonelli, et al.
27,

2011,

the

law

firm

of

Kavanagh

substituted in as defense counsel.

&

Kavanagh,

On January

LLC

(“K&K”)

Brendan Kavanagh, Esquire, and

Victoria Kavanagh, Esquire, husband and wife, are the named partners
3

The VPD report indicates that the decedent’s mother-in-law
stated that her son allegedly told her “that he thought Jaime
[plaintiff] was going to kill him, by injecting him with her
insulin.” See February 9, 2009 Report at 2, Doc. No. 67-1.
3

in the firm.

Stephanie Olivo, Esquire, an attorney working for K&K,

started to take Ms. Bell’s deposition on November 1, 2011.

The

deposition was adjourned after Ms. Olivo learned for the first time
that K&K represented Ms. Bell in the past.

This was also when Ms.

Bell learned K&K represented the defendants in her lawsuit. J. Bell
March 12, 2012 Affidavit ¶9.

The present Motion to Disqualify was

filed soon thereafter.
There is no dispute that Ms. Kavanagh represented Ms. Bell in
connection with her worker’s compensation claim arising from an
accident that occurred on June 28, 2008.

Although the claim settled

on March 8, 2010, the settlement provided that Ms. Bell could move
to reopen her claim by
worsened.

March 8, 2012 if her shoulder injury

See Plaintiff’s Brief, Exhibit 8.

Mr. Kavanagh also

represented Ms. Bell in connection with a traffic citation she
received and her subsequent March 24, 2010 court hearing.
Plaintiff contends that in the course of K&K’s representation
it learned confidential information that could be used against her
in this lawsuit.

To be more specific, the communications at issue

were with Ms. Kavanagh.

Plaintiff avers in her December 8, 2011

affidavit, reviewed by the Court in camera, that before she retained
her present counsel she “spoke with Victoria Kavanagh about [Mr.
Bell’s] death and the possibility of looking into whether there was
a case to bring.” J. Bell Affidavit (“J. Bell Aff.”) ¶8.4 Generally,

4

The Court is authorized to review plaintiff’s affidavit in
camera. See O Builders & Associates, Inc. v. Yuna Corp. of NJ
(“O Builders”), 206 N.J. at 109, 129 (2011).
4

the affidavit discusses, inter alia, information plaintiff allegedly
relayed to Ms. Kavanagh about the evening of Mr. Bell’s arrest,
discussions with Mr. Bell, her relationship with Mr. Bell, the
history of her custody issues, problems with her mother-in-law, and
other related issues.

Ms. Bell acknowledges Ms. Kavanagh told her

“she could not represent [her] in any of these matters and said that
[she] would need to seek a civil attorney and a family court
attorney.”

Id. ¶25.

Plaintiff

argues

defense

counsel

pursuant to R.P.C. 1.9(a) and 1.10(a).

should

be

disqualified

Plaintiff alleges she

relayed confidential information to Ms. Kavanagh in the course of
her representation which could be used against her in this lawsuit.
Defendants

argue

that

Ms.

Bell’s

prior

substantially related to this case.

representation

is

not

They also argue that Ms. Bell

did not relay to them any confidential information and they “[n]ever
discussed intimate details of Jaime Bell’s life with her.”
10, 2012 Letter Brief at 5.

January

Defendants contend that the potentially

incriminating details of Ms. Bell’s history are not confidential
because they are part of the public record.

In addition, defendants

contend that Ms. Bell is not the plaintiff because she is suing in
her representative rather than individual capacity.
DISCUSSION
1.

Motions to Disqualify

The Court had occasion to discuss motions to disqualify in a
recent

opinion.

See

Martin

v.

5

AtlantiCare,

C.A.

No.

10-6793

(JHR/JS), 2011 WL 5080255 (D.N.J. Oct. 25, 2011).

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 (“R.P.C.”) of the American Bar Association, as
revised by the New Jersey Supreme Court, shall govern the conduct of
members of the bar admitted to practice in the District. See L. Civ.
R. 103.1(a); Carlyle Towers Condo. Ass'n, Inc. v. Crossland Sav.,
FSB, 944 F.Supp. 341, 344-45 (D.N.J. 1996).

When deciding a motion

to disqualify counsel the movant bears the burden of proof that
disqualification is appropriate.

City of Atlantic City v. Trupos

(“Trupos”), 201 N.J. 447, 462-63 (2010); Maldonado v. New Jersey, ex
rel., 225 F.R.D. 120, 136-37 (D.N.J. 2004).
a

heavy

one

since

“[m]otions

to

The movant’s burden is

disqualify

are

viewed

with

‘disfavor’ and disqualification is considered a ‘drastic measure
which courts should hesitate to impose except when absolutely
necessary.’”

Alexander v. Primerica Holdings, Inc., 822 F.Supp.

1099, 1114 (D.N.J. 1993) (quoting Schiessle v. Stephens, 117 F.2d
417, 420 (7th Cir. 1983) (internal quotation marks and citation
omitted)).

Nevertheless, “a motion for disqualification calls for

[courts] to balance competing interests, weighing the need to
maintain the highest standards of the profession against a client’s
right freely to choose his counsel.”

Trupos, 201 N.J. at 462

(citing Dewey v. R. J. Reynolds Tobacco Co., 109 N.J. 201, 218
(1988)).

See also Twenty-First Century Rail Corporation v. New

Jersey Transit Corp. (“Twenty-First Century”),

6

N.J.

, 2012 WL

1570025, at *5 (2012). 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.”
Trupos, 201 N.J. at 462.
When determining whether to disqualify counsel the Court must
closely

and

results.
1999).
1995)

carefully

scrutinize

the

facts

to

prevent

unjust

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

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

“involves

a

omitted),

‘painstaking

the

court

analysis

application of precedent.’”

Id.

noted
of

the

that
facts

its
and

balancing
precise

In addition, “[t]he decision

whether to disqualify a law firm by imputation is best undertaken on
a case-by-case basis, weighing the facts as they exist at the time
the

motion

to

disqualify

is

made.

New

Jersey

courts

have

consistently eschewed per se rules of disqualification, stressing
the ‘fact-sensitive nature’ of a decision to disqualify counsel.”
Cardona v. Gen. Motors Corp., 942 F.Supp. 968, 976 (D.N.J. 1996).
Since disqualification issues are intensely fact-specific, it
is essential to approach such issues with a sense of practicality as
well as a precise understanding of the underlying facts.

Murphy v.

Simmons, Civ. No. 06-1535 (WHW), 2008 WL 65174, at *5 (D.N.J. Jan.
3, 2008)(citation and quotation omitted). Accordingly, the Court
scrutinized the parties’ detailed submissions and testimony and is

7

deciding defendants’ motion based on the extensive record.5
2.

Standing

The Court's analysis starts with defendants' argument that Ms.
Bell has no standing to raise a conflict because she is not the
named plaintiff.

Defendants argue that Ms. Bell is suing in her

representative capacity as the administrator ad prosequendum of the
Estate of Steven Bell, and not her individual capacity.6

Therefore,

defendants argue, “Cumberland County’s interest [in the case] is not
materially adverse to Jaime Bell’s interests.
Letter Brief at 2-3.

January 10, 2012

Defendants’ argument is rejected.

The Court

finds that for conflict analysis purposes there is no distinction
between whether Ms. Bell is a named plaintiff in her individual or
representative capacity.

As the administrator of her husband's

estate, Ms. Bell has the authority to prosecute, manage and settle
the case.

Further, she stands to benefit the most from a judgment

or settlement.

This puts her in the same position as if she sued in

her individual capacity.

In addition, F. R. Civ. P. 17(a)(1)(B)

5

Ordinarily a motion to disqualify should be decided on the
basis of documentary evidence except where "the court cannot with
confidence decide the issue on the basis of the information
contained in those papers...." Dewey, 109 N.J. at 222. Given
the discrepancies in the affidavits submitted by Ms. Bell and Ms.
Kavanagh, the Court felt it necessary to hear their version of
events in-person. Ms. Bell and Ms. Kavanagh appeared and
testified at the March 30, 2012 hearing. Mr. Kavanagh chose not
to appear.
6

Under New Jersey’s Wrongful Death Act, a claim must be
brought by the administrator ad prosequendum of the decedent or
the executor of the decedent’s estate. N.J.S. 2A:31-2. A
survival action must be brought by the administrator of the
decedent’s estate or his executor. N.J.S. 2A:15-3.
8

specifically notes that an administrator is a real party in interest
in whose name an action must be prosecuted.

The Court will not

emphasize form over substance and will apply the applicable rules
and case law as if Ms. Bell sued only in her individual capacity.
Accord 6A Wright & Miller, Federal Practice and Procedures §1542 at
469

(2010)(“As

used

in

Rule

17(a),

the

real-party-in-interest

principle is a means to identify the person who possesses the right
sought to be enforced.

Therefore, the term directs attention to

whether plaintiff has a significant interest in the particular
action plaintiff has instituted, and Rule 17(a) is limited to
plaintiffs.”).
3.

R.P.C. 1.9(a) and 1.10(a)

Plaintiff argues that K&K should be disqualified pursuant to
R.P.C. 1.9(a) and 1.10(a) which discuss the duties of counsel to
their former client.7

R.P.C. 1.9(a) states:

RPC 1.9 Duties to Former Clients
(a) A lawyer who has represented a client in a matter
shall not thereafter represent another client in the same
or a substantially related matter in which that client's
interests are materially adverse to the interests of the
former client unless the former client gives informed
consent confirmed in writing.

7

Although plaintiff focuses her argument on a lawyer’s duty
to a former client and, therefore, discusses R.P.C. 1.9(a), it is
not clear that R.P.C. 1.9(a) applies. When plaintiff filed her
motion to disqualify on December 12, 2011, it was evident that
plaintiff was no longer a client of K&K. However, when K&K
entered its appearance in the case on January 27, 2011, the
situation is not as clear. The issue will be discussed infra.
Nevertheless, as will be discussed, the result is the same
whether plaintiff is treated as a current, former or prospective
client.
9

Plaintiff argues that since Ms. Kavanagh is disqualified pursuant to
R.P.C. 1.9(a), it follows that the conflict is imputed to K&K under
R.P.C. 1.10(a) and, therefore, K&K should be disqualified.

R.P.C.

1.10(a) reads:
RPC 1.10 Imputation of Conflicts of Interest: General Rule
(a) When lawyers are associated in a firm, none of them
shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by RPC
1.7 or RPC 1.9, unless the prohibition is based on a
personal interest of the prohibited lawyer and does not
present a significant risk of materially limiting the
representation of the client by the remaining lawyers in
the firm.
At the outset of the Court’s analysis of R.P.C. 1.9(a), it must
determine if K&K ever represented plaintiff in the same matter now
pending before the Court.

If not, the Court then must decide if

K&K’s former engagements for plaintiff were substantially related to
this matter.

Two recent New Jersey Supreme Court cases address

these situations.

See Twenty-First Century, supra;

Trupos, supra.

Based on the present record, the Court finds that K&K did not
represent plaintiff in connection with Mr. Bell’s death.

The most

persuasive evidence in this regard is plaintiff’s March 30, 2011
testimony.

Tr. 42:14 to 63:25.

Plaintiff testified she picked an

attorney out of the phone book regarding her worker’s compensation
claim.

Tr. 43:12-23.

Plaintiff retained Ms. Kavanagh on July 2,

2008, and they met for the first time on July 3, 2008.
Kavanagh February 22, 2012 Affidavit ¶¶ 3-9.

See V.

On July 7, 2008,

plaintiff called Ms. Kavanagh and left the following message:
MRI--5:30 workmens comp.

Husband was murdered in county
10

jail, wants to know if you [Ms. Kavanagh] can take case.
See Attachments to J. Webster April 5, 2012 Affidavit. Sometime
after July 7, 2008, plaintiff had another meeting(s) with Ms.
Kavanagh.
The Court sets out in full the relevant portions of plaintiff’s
testimony concerning her meetings with Ms. Kavanagh:
Q. According to Ms. Kavanagh's notes, the notes of her
firm, you called on July 7th, 2008, to leave a message
that you're having an MRI, and the notes of the phone
message say, Husband was murdered in county jail, wants
to know if you can take case. That was on July 7th,
2008. Do you remember that?
A. I don't remember the exact date, but I do remember
calling.
Q. Do you remember then meeting with Ms. Kavanagh and
discussing anything having to do with your husband's
death?
A. Again, we had a meeting already scheduled for
something to do with the workmen's comp case, and I had
just brought the folder with me, because I was trying to
get the newspaper to stop telling their stories. I was
having a battle with my mother-in-law. I was having the
issue with the death of my husband. And I was just
asking her questions like, What do I need to do? Can,
you know, not necessarily as, Can you represent me, but
how do I go about this?
Q. And what feedback was Ms. Kavanagh giving you?
A. At the end of her discussion, she told me because of
-- because I didn't say it was like trying to sue the
county, like that's not what I intended. I just wanted
to know what happened to my husband. Like that's all I
wanted to know. So I was just trying to -- and I wanted
to get custody back of my kids and all that stuff, so I
was just asking like, Who do I -- what kind of attorney
would I need. And at that point she told me that I would
have to seek a civil attorney and that because her firm
has represented the county in the past, they would not
be able to represent me.

11

Q. Was that at a meeting in Ms. Kavanagh's office close
to the time when you left the phone message on July 7th?
A. Again, I don't recall the exact date.
Tr. 45:1 to 46:9.

Plaintiff also testified:

Q. Were you inquiring whether Ms. Kavanagh, or her firm
at that time, could represent you?
A. I wasn't sure what to do. I just was asking
questions, because I needed to know what I needed to do,
because I didn't know what I needed to do. I didn't know
nothing. I was just asking questions in general to find
out what to do.
Q. Well, if you were asking questions of Ms. Kavanagh of
what to do, how is it that you came to talk with her
about the confidential information that you listed in
[your] first affidavit?
A. Because I would explain the situation, and ask her,
you know, what should I do next, you know, this is the
problem. You know, explain the problem, and then her, as
an attorney, try to get -- to find out what I needed to
do. What was the next step. Like of how -- one of the
things was I was having problem getting the death
certificate -- how would I go about to get that? How
would I go about getting the autopsy report? Because
these are things that I didn't know how to do. How would
I go about different steps that I had to take during the
process of my husband's death, raising visitation with
my kids, regaining visitation with my kids, the problems
I was having with the newspapers, just like whatever
that step was at that time, trying to figure out how I
needed to go about doing that.
Tr. 47:12 to 48:12. In addition, plaintiff testified:
Q. Did there ever come a time when you asked her if she
could represent you?
A. I don't think that I was asking her to specifically
represent me, but I just was asking for advice.
Q. So how and why then did it come up that she told you
that her law firm represented the county?
A. Because at -- at some point during the conversation
it came up that it didn't happen in the county.
12

Q. And that's when she told you what?
A. And that's when she told me that her law firm has
previously represented the county in the past, and that
she could not -- she or her law firm could not represent
me, and that she wouldn't be able to -- what's the word
I'm looking for -- making a referral.
Q. But why would she tell you she couldn't represent you
if you never asked her to represent you?
A. Because I was asking her for advice and maybe she saw
it as like that I was asking her for representation. I
just needed to know what I -- what was the next step I
needed to take, and unfortunately I asked several
lawyers a whole bunch of times, and didn't get really
any advice.
Tr. 49:23 to 50:18.8
Given

plaintiff’s

testimony,

it

is

plain

that

K&K

never

represented plaintiff in connection with her husband’s death.
Plaintiff and Ms. Kavanagh agree there was no explicit agreement to
this effect.

Although an attorney-client relationship may occur by

implication (Robinson v. Hornell Brewing Co., C.A. No. 11-2183
(NLH/JS), 2012 WL 71730, at *2 (D.N.J. Jan. 10, 2012)), this did not
occur.

In order to infer an attorney-client relationship the

8

The Court credits plaintiff’s testimony that she had these
discussions with Ms. Kavanagh even though Ms. Kavanagh has no
recollection they occurred. It is not unexpected that Ms.
Kavanagh has no recollection of the discussions since the events
occurred three-plus years ago and Ms. Kavanagh has a very busy
law practice. Further, the Court finds it unlikely plaintiff did
not mention her husband’s death when she met with Ms. Kavanagh
given the tumult in her life when they met in 2008, and the fact
that she met with Ms. Kavanagh the day after her July 2, 2008
phone message. Although not clear, it appears that plaintiff met
or spoke with Ms. Kavanagh, or visited her office, on July 3,
2008, July 22, 2008, August 26, 2008, and January 26, 2010. V.
Kavanagh February 22, 2012 Affidavit ¶9.
13

parties must relate to each other as attorney and client.

Id.

(citations omitted). A leading authority has stated, “the common
thread in cases in which a lawyer-client relationship is said to
have arisen by implication is reliance of the ‘client’ on the
professional skills of the attorney coupled with the attorney’s
awareness of that reliance and tacit acceptance of it.” Michel, New
Jersey

Attorney

Ethics

(Gann,

2011),

§13:4-1

p.

250.

Here,

plaintiff acknowledges she simply asked Ms. Kavanagh for assistance
or guidance about where to turn for help with her myriad of personal
problems.

Plaintiff acknowledges she did not ask Ms. Kavanagh to

represent her and that Ms. Kavanagh did not agree to do so.
Therefore,

the

Court

finds

that

Ms.

Kavanagh

and

K&K

never

represented plaintiff in connection with Mr. Bell’s death.
The next question to address is whether K&K’s engagement in
this case is substantially related to its prior representation of
plaintiff in her worker’s compensation and motion vehicle cases. If
so, then R.P.C. 1.9(a) is triggered.
apply.

If not, R.P.C. 1.9 does not

In Trupos, supra, the Supreme Court addressed the analytic

framework for determining whether matters are substantially related:
[F]or purposes of R.P.C. 1.9, matters are deemed to be
“substantially related” if (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. We adopt that
standard because it protects otherwise privileged
communications, see R.P.C. 1.6(a) (proscribing revelation
of “information relating to representation of a client”),
while also requiring a fact-sensitive analysis to ensure
14

that the congruity of facts, and not merely similar legal
theories, governs whether an attorney ethically may act
adverse to a former client.
201 N.J. at 467.
The Court finds that the current matter and Ms. Bell’s worker’s
compensation and motor vehicle cases are not substantially related.
The compensation case involved plaintiff’s shoulder injury and the
second matter involved a traffic citation and subsequent court
hearing.

These had nothing to do with Mr. Bell’s death.

None of

the discussions that were relevant to Ms. Bell’s prior matters have
any relevance to the present lawsuit.

Further, facts relevant to

the prior representation are not relevant and material to this case.
Therefore, the matters are not substantially related and R.P.C. 1.9
does not apply.
Plaintiff argues that R.P.C. 1.9 applies because during the
course

of

Ms.

Kavanagh’s

engagement

she

learned

“confidential

information” that satisfies the first prong of the Trupos analysis.
The Court agrees that if the confidential information relayed to Ms.
Kavanagh arose out of plaintiff’s compensation or motor vehicle
cases, then R.P.C. 1.9(a) would be triggered.
occur.

However, this did not

The confidential information relayed to Ms. Kavanagh had

nothing to do with the firm’s representation of her.

Instead, the

information was voluntarily disclosed by plaintiff.

Further, it

does not appear there was any “give and take” about the issues.

In

fact, plaintiff acknowledged that Ms. Kavanagh told her she could

15

not undertake to represent her.9

The Court finds that R.P.C. 1.9(a)

and Trupos do not apply to this situation.

The analysis in Trupos

was done in the context of deciding whether information learned in
connection with a prior engagement was confidential, and relevant
and

material,

to

a

current

engagement.

Here,

none

of

the

information relevant to plaintiff’s worker’s compensation and motor
vehicle cases fit into this category.

Here, plaintiff is focusing

on her voluntarily disclosed comments and questions to Ms. Kavanagh
about a subject entirely unrelated to her engagement.
Disqualification
sparingly.

is

a

harsh

remedy

O Builders, 206 N.J. at 130.

which

must

be

used

The Court finds that

Trupos does not apply to situations where a client voluntarily
discloses

“confidences”

representation.

entirely

unrelated

to

an

ongoing

Otherwise, it would be too easy for a nefarious

client to disqualify a lawyer in a future unrelated matter.10

For

this

the

reason,

the

Court

rejects

plaintiff’s

argument

that

9

Plaintiff’s testimony did not coincide with her affidavit.
Plaintiff averred that she spoke with Ms. Kavanagh about “the
possibility of looking into whether there was a case to bring.”
J. Bell Aff. ¶8. The Court finds that Ms. Bell is mistaken.
First, plaintiff did not testify that this occurred. Second,
even though Ms. Kavanagh could not recall the specifics of her
discussions with plaintiff, the Court credits her testimony that
she would not discuss with plaintiff, or any person, a new matter
adverse to Cumberland County.
10

The possibility of abuses was touched on in O Builders,
206 N.J. at 123 n. 6 (“By the time R.P.C. 1.18 was adopted, the
complaint that clients--either on their own or counseled by other
lawyers--were consulting lawyers solely for the purpose of later
disqualifying them had acquired a fair measure of credibility.”).
The Court does not find that this occurred here.
16

substantial relationship test is met because Ms. Kavanagh received
confidential information that can be used against plaintiff.
December 12, 2011 Letter Brief at 12-13.

It is, of course, true

that Ms. Kavanagh would not have learned the information unless she
represented plaintiff.

However, the information at issue that

plaintiff relayed was unrelated to Ms. Kavanagh’s representation and
was voluntarily disclosed by plaintiff.

This is not the scenario

Trupos envisioned when it set forth its “substantial relationship”
test.
4.

R.P.C. 1.18

Having decided that R.P.C. 1.9(a) does not apply, this does not
end the Court’s analysis.
R.P.C. 1.18 is appropriate.11

The Court finds that an analysis of
When Ms. Kavanagh met with plaintiff

in or about July and August, 2008, there is no question that
plaintiff was a current client of the firm.

However, giving

plaintiff the benefit of every doubt, she was also a prospective
client

vis-a-vis

her

husband’s

death.

Although

it

may

seem

anomalous that the same person can be a current and prospective
client at the same time, this can happen.

A “prospective client” is

“[a] person who discusses with a lawyer the possibility of forming
a client-lawyer relationship with respect to a matter.”

R.P.C.

1.18(d). Pursuant to this definition, if a current client discusses

11

Technically, R.P.C. 1.18 may not apply because plaintiff
testified she did not ask Ms. Kavanagh to represent her in
connection with her husband’s death. However, the lines are
murky enough to warrant a discussion of R.P.C. 1.18.
17

a new matter with an attorney, he/she becomes a prospective client
for the purpose of the new matter.
As to R.P.C. 1.18, the key provisions read as follows:
(a) A lawyer who has had discussions in consultation with
a prospective client shall not use or reveal information
acquired in the consultation, even when no client-lawyer
relationship ensues, except as RPC 1.9 would permit in
respect of information of a former client.
(b) A lawyer subject to paragraph (a) shall not represent
a client with interests materially adverse to those of a
former prospective client in the same or a substantially
related matter if the lawyer received information from the
former prospective client that could be significantly
harmful to that person in the matter, except as provided
in paragraph (c).
Thus, pursuant to R.P.C. 1.18, an attorney’s consultation with a
prospective client may

preclude the attorney from accepting a

subsequent representation adverse to the client even though an
attorney-client

relationship

was

not

formed.

As

stated

in

O

Builders, 206 N.J. at 113:
RPC 1.18 seeks a delicate balance between a client’s right
to protect communications made in the context of a
consultation precedent to the actual retention of a
lawyer, and the lawyer’s right to be free to represent
clients without being unduly restricted by the yoke of
short-lived consultations that do not ripen into an
attorney-client relationship.
Disqualification is appropriate under R.P.C. 1.18 where the
matter of consultation and the adverse matter are the same or
substantially related, and the information revealed during the
consultation is significantly harmful to the former prospective
client in the current adverse matter.

Id. at 113-114.

Plaintiff’s

discussions with Ms. Kavanagh satisfy the requirement that their

18

past consultation be the same or substantially related to this
matter.

As

noted

previously,

the

Court

credits

plaintiff’s

affidavit to the effect that she mentioned confidential details
regarding her husband and the circumstances of his death to Ms.
Kavanagh.

Therefore, in order to disqualify K&K pursuant to R.P.C.

1.18, plaintiff must show that the confidential information she
relayed could be significantly harmful to her in this matter.12
The
R.P.C.’s.

term

“significantly

harmful”

is

not

defined

in

the

In O Builders, the Court wrote:

[W]e conclude that, in order for information to be deemed
“significantly harmful” within the context of RPC 1.18,
disclosure
of
that
information
cannot
be
simply
detrimental in general to the former prospective client,
but the harm suffered must be prejudicial in fact to the
former prospective client within the confines of the
specific matter in which disqualification is sought, a
determination that is exquisitely fact-sensitive and
specific.
The Court finds that defense counsel should not be disqualified
pursuant to R.P.C. 1.18.13

Disqualification is appropriate only if

defense counsel received confidential information from plaintiff
that could be significantly harmful to plaintiff in this case.

This

did not occur here because the allegedly confidential information
relayed

to

Ms.

Kavanagh

is

either

already

general

public

12

The initial burden of production is on plaintiff. If that
burden is satisfied, the burden shifts to defense counsel.
However, the burden of persuasion and proof remains on plaintiff.
Id. at 126-127.
13

Of course, Ms. Kavanagh is subject to the requirement in
R.P.C. 1.18(a) that she should not use or reveal information she
acquired from plaintiff except as R.P.C. 1.9 would permit. See
also R.P.C. 1.6.
19

information, or is likely to be revealed at plaintiff’s deposition
or in other discovery. Cf. O Builders, 206 N.J. at 130.
The allegedly confidential information in plaintiff’s December
8, 2011 affidavit is no doubt personal and sensitive. Nevertheless,
most if not all of it is already contained in the “public record”
including, but not limited to, newspaper articles, police reports,
the CCPO’s documents, and the Medical Examiner’s documents.

For

example, plaintiff points to the fact she told Ms. Kavanagh she was
questioned by the prosecutor because her mother-in-law told them she
gave her son insulin and murdered him.
of newspaper articles.

However, this is the subject

Plaintiff also points to the fact she told

Ms. Kavanagh about all of the restraining orders, her custody
issues, that she and her husband fought, and that her brother and
mother-in-law argued at Mr. Bell’s funeral.

Although sensitive,

none of this information is confidential or privileged.

It could be

that there are “tidbits” of references in Ms. Bell’s December 8,
2011

affidavit

that

are

not

already

in

the

public

domain.14

Nevertheless, this minimal information will in the Court’s judgment
be revealed during the course of the case.

The references are

undoubtedly germane to the circumstances surrounding Mr. Bell’s

14

For purposes of this analysis the Court is assuming that
all of the statements in Ms. Bell’s December 8, 2011 affidavit
were made to Ms. Kavanagh. The Court had the opportunity to
observe plaintiff’s demeanor and credibility when she testified
on March 30, 2012. While the Court believes plaintiff appeared
to be a generally credible witness, her recollection of events
was not nearly as detailed when she testified in-person compared
to what she relayed in her affidavit which was undoubtedly
prepared by a third person(s).
20

death and it is virtually certain they will be the subject of
discovery.

Accordingly,

since

the

alleged

“confidential”

information plaintiff mentioned to Ms. Kavanagh is either publicly
known or will be revealed in discovery, the Court finds that the
information

is

not

and

could

not

be

significantly

plaintiff’s case within the meaning of R.P.C. 1.18.

harmful

to

Therefore,

disqualification pursuant to R.P.C. 1.18 is not appropriate.
5.

R.P.C. 1.7

As noted, there is a question whether plaintiff was a current
client of K&K when the firm entered its appearance in this case on
January 27, 2011.

Defendants say no because the compensation matter

settled on March 8, 2010.

However, the answer is not so simple

because there was a reopener in the settlement agreement that
permitted plaintiff to apply for additional benefits by March 8,
2012.

See

Plaintiff’s

Brief,

Exh.

8.

Ms.

Kavanagh

advised

plaintiff of this fact in a letter dated March 11, 2010, and stated,
“[i]f you require assistance in the future, you should contact me
sufficiently in advance of the two year period.”

Id.

The Court finds that because of Ms. Kavanagh’s March 11, 2010
letter, she was in an implied attorney-client relationship with
plaintiff at least until November 2011 when the specter of a
conflict

of

interest

was

raised.

Before

that

time

plaintiff

reasonably believed that Ms. Kavanagh was continuing to represent
her in connection with her compensation case, and Ms. Kavanagh knew
this and tacitly approved it.

This is sufficient to create an

21

implied attorney-client relationship.
WL 71730, at *1-2.

See generally Robinson, 2012

However, after the conflict issue was raised,

plaintiff could not reasonably believe Ms. Kavanagh would continue
to represent her.
Where that leaves things is that from the date K&K entered its
appearance (January 27, 2011), until November 2011, Ms. Kavanagh
continued to represent plaintiff while at the same time her husband
and partner was defending this lawsuit.

R.P.C. 1.7 prohibits a

lawyer from representing a client if the representation involves a
concurrent conflict of interest.

A concurrent conflict exists if

“representation of one client will be directly adverse to another
client.”

R.P.C. 1.7(a).

Despite this R.P.C., the Court will not

disqualify defense counsel.
When deciding whether disqualification is appropriate the Court
is mindful that this relief is disfavored and drastic.
supra.

Alexander,

The Court must balance competing interests, weighing the

need to maintain the highest standard of the profession against a
client’s right freely to choose its counsel.
462.

Trupos, 201 N.J. at

The Court should apply a “sense of practicality” to avoid

unjust results.

Martin, 2011 WL 5080255, at *2.

Although what

happened here is unusual, in the Court’s judgment it does not
warrant

disqualification.

It

is

true

that

Ms.

Kavanagh

and

plaintiff were technically in an attorney-client relationship from
January 27, 2011 to November 2011, and during that time K&K was
adverse to plaintiff in this matter.

22

However, the de facto end of

the

attorney-client

relationship

occurred

plaintiff settled her compensation case.

in

March

2010

when

After that date plaintiff

had no relevant communications with Ms. Kavanagh.

Further, the

Court credits Ms. Kavanagh’s affidavit (¶2) and testimony (March 30,
2012 Tr. 38:7-10), that she never worked on this case.

The Court

also credits Ms. Kavanagh’s testimony that because K&K did legal
work

for

Cumberland

County,

she

did

not

have

any

meaningful

conversations with plaintiff about a potential lawsuit involving her
husband’s death at a County jail.
that

occurred

interests.

after

January

Tr. 33:2-6, 15-25.

27,

2011

compromised

Thus, nothing
plaintiff’s

Under these circumstances, and balancing the parties’

interests, the Court finds that disqualification pursuant to R.P.C.
1.7 is not appropriate.
SUMMARY
At the outset of this opinion the Court mentioned it is
convinced defense counsel could have and should have done some
things differently.

For example, if as defense counsel argues a

conflict check was done at the outset of its engagement, there is no
good explanation for why it did not learn the firm previously
represented Ms. Bell. Defense counsel did not realize this until
plaintiff was deposed.15

Further, after the alleged conflict was

15

The Court acknowledges it is unlikely, although not
definite, that an earlier recognition of the potential conflict
would have avoided this motion. Nevertheless, the issue could
have been decided early in the case, thereby avoiding a
substantial delay just when discovery was finally proceeding in
earnest. All discovery in this case has been stayed until this
motion is decided.
23

raised, defense counsel reviewed in detail plaintiff’s files to
study the details of its representation.
K&K

to

plaintiff’s

allegedly

This could have exposed

confidential

and

privileged

information. The appropriate course should have been to isolate the
files and seek appropriate advice on what to do under the R.P.C.’s.
In addition, plaintiff filed several of plaintiff’s confidential
documents with the court.
Doc. No. 67-3.

See January 10, 2012 Letter Brief at 5;

Clearly these medical records should have been filed

under seal pursuant to L. Civ. R. 5.3.

Moreover, even after being

alerted to an alleged conflict in November 2011, defense counsel did
not unequivocally inform plaintiff it would no longer represent her
in her worker’s compensation case until moments before the March 8,
2012 deadline was set to expire.
formal

written

screening

program

plaintiff’s files from this matter.

Also, K&K did not institute a
to

screen

Ms.

Kavanagh

and

See Martin, 2011 WL 5080255, at

*10-11.
The Court will fashion an Order to ameliorate the potential
harmful consequences of defense counsel’s actions.

Counsel will be

Ordered to institute a formal screen between Ms. Kavanagh and this
file.

Counsel will also be directed to return to plaintiff her

complete files.

Although beyond the scope of its Order, defense

counsel would be wise to review and update its conflict screening
procedure to assure that instances of this type do not occur again.

24

Accordingly, for all the foregoing reasons, plaintiff’s Motion
to Disqualify Counsel for the Cumberland County Defendants is
DENIED. An appropriate Order will be entered.16
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
DATED: May 23, 2012

16

Plaintiff’s motion also seeks to disqualify Kimberly A.
Procopio, Esquire. Ms. Procopio is not employed by K&K but she
assisted with the defendants’ defense when K&K was shorthanded.
Since K&K is not disqualified, the same ruling applies to Ms.
Procopio. The Court also notes that K&K did not share
confidential or sensitive information with Ms. Procopio regarding
plaintiff. K. Procopio February 17, 2012 Affidavit ¶13.
25