KILLION et al v. COFFEY et al

Filing 49

MEMORANDUM OPINION. Signed by Magistrate Judge Karen M. Williams on 6/30/2014. (dmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

MICHAEL KILLION, et al.
Plaintiffs,

Civil No. 13-1808-RMB-KMW

v.

MEMORANDUM OPINION

CHIEF JOHN COFFEY, et al.
Defendants.

Williams, Magistrate Judge:
This

matter

Defendants,

is

Chief

before

John

the

Coffey

Court

on

the

Motion

of

(“Coffey”)

and

Lieutenant

Michael Probasco (“Probasco”) (collectively, “Defendants”),
to disqualify Katherine D. Hartman, Esquire and her firm,
Attorneys Hartman, Chartered, from representing Plaintiffs,
Michael Killion, Michael Biazzo, Douglas Foster, Socrates
Kouvatas, Erik Morton, William Hertline, and Mark Bristow, in
this matter [Doc. No. 29].
oppose this Motion.
on June 3, 2014.

The Court notes that Plaintiffs

The Court held a hearing in this matter

The Court has reviewed the submissions of

the parties and for the reasons that follow, Defendants’
Motion is denied.

1

BACKGROUND
The

following

facts

are

from

the

certifications

submitted to the Court in support of the current Motion and
in opposition thereto. By letter dated December 17, 2011,
Katherine

D.

Hartman,

Esquire,

(“Hartman”)

advised

all

members of the FOP Lodge 3 (“FOP”) that she and her firm,
Attorneys Hartman, Chartered (“the Firm”), had been retained
to represent the interests of the FOP beginning in January
2012.

Declaration of John Coffey (“Coffey Decl.”) ¶ 5, Ex.

A, Doc. No. 29-6.

In the letter, Hartman stated, in relevant

part:
Dear Member:
My name is Katherine (Katie) Hartman and I have
been retained to represent your interests beginning
in January. . . While my primary function is to
represent those of you who may have disciplinary
charges filed against you, I encourage you to call
me to [sic] if you have any questions at all
relating to the performance of your duties, a
potential problem at the workplace, or if you are
notified that you are the target of an Internal
Affairs investigation.
Id. ¶ 6, Ex. A.

The FOP and Hartman, for the Firm, entered

into an “Agreement for Legal Services Between FOP Lodge 3 And
Attorneys Hartman, Chartered” (“Legal Services Agreement” or
“Agreement”) wherein Hartman and her firm agreed to act as
counsel for members of the FOP from January 1, 2012 through
December 31, 2012.

Id., Ex. B.

As stated in the Legal

Services Agreement, “Attorneys Hartman, Chartered shall act

2

as counsel for the Members of FOP Lodge 3, who require legal
assistance with Administrative and/or Disciplinary matters.”
Id., Ex. B(emphasis added).

Further, the Agreement provides

that “Attorneys Hartman, Chartered and Katherine D. Hartman
will provide legal services for all members of FOP Lodge 3,
if they . . . have questions relating to the performance of
their duties and/or potential employment and/or disciplinary
matters.”

Id., Ex. B ¶ 1(h)(emphasis added).

The Agreement

did not contemplate coverage for affirmative legal action in
the form of a civil lawsuit.

Id., Ex. B, ¶ 1(h)(2).

Pursuant

to the Agreement, “[t]he FOP Lodge 3 agree[d] to pay Attorneys
Hartman, Chartered $15.00 per member, per month for the
provision of said Legal Services.

Said monies [were] to be

paid quarterly [to Hartman] on January, April, July and
October 1, 2012.”
that

“Attorneys

Id. at ¶ 2.
Hartman

has

The Agreement also stated
agreed

to

undertake

the

representation of seven (one of these officers has retained
other counsel) who were charged prior to her representation.”
Id. at ¶ 1(h).

Lastly, the Agreement provided that “[t]he

members understand that if Attorneys Hartman deems there to
be a conflict other counsel will have to be retained for those
with whom the conflict exists.”

Id. ¶ 1(h).

On March 22, 2013, Hartman filed this civil action on
behalf of Plaintiffs who are patrol or police officers for

3

the

Township

of

amongst others.

Pennsauken

against

Compl., Doc. No. 1.

Defendants are members of the FOP.

Coffey

and

Probasco,

Both Plaintiffs and

Compl. ¶ 25; Coffey Decl.

¶ 2; Declaration of Michael Probasco (“Probasco Decl.”) ¶ 2,
Doc. No. 29-5.

On April 1, 2013, Coffey wrote to the

President of the FOP, Matthew Henkel (“Henkel”) advising him
that he learned of the lawsuit filed against him and asked
Henkel to have Hartman contact him.

Coffey Decl. ¶ 9, Ex. C.

On April 5, 2013, Coffey declared that he received a copy of
the Complaint in this matter and learned that Hartman was the
attorney representing the Plaintiffs in the lawsuit against
him.

Coffey Decl. ¶ 10.

On April 5, 2013, Coffey wrote to

Henkel and indicated that it appeared that Hartman has a
conflict.

Id. ¶ 11, Exh. D.

letter. Id.

Coffey copied Hartman on the

In a letter dated April 8, 2013 to Hartman,

Coffey stated that he reviewed the Legal Services Agreement
and indicated that “it appears that you are obligated to
provide me with legal services if I have questions relating
to the performance of my duties.
Henkel

that

situation.”

I

have

several

I advised FOP President

questions

Coffey Decl. ¶ 12, Ex. E.

regarding

this

Coffey also noted to

Hartman that it appears that there is a conflict of interest.
Id.

In response, Hartman advised Coffey that she disagrees

with his conclusion that she is “obligated to provide [him]

4

with legal services” and that she was sure that the Township
would

provide

him

with

counsel.

Coffey

Decl.,

Ex.

E.

Further, Hartman stated in her letter to Coffey that “I have
an obvious conflict in representing your interests since I am
suing you.” Id.; Declaration of Katherine D. Hartman, Esquire
(“Hartman Decl.”) ¶ 15, Doc. No. 36-1.
declares

that

Hartman

never

Furthermore, Coffey

requested

represent Plaintiffs in this action.

his

consent

to

Coffey Decl. ¶ 14.

Similarly, Probasco, by letter dated April 16, 2013,
requested to consult with Hartman regarding the lawsuit.
Probasco Decl. ¶ 7, Ex. A.

Hartman responded by letter dated

April 23, 2013 advising that because she filed the lawsuit
naming him as a Defendant, she has an obvious conflict in
representing his interests.
Decl. ¶ 15.

Probasco Decl., Ex. B; Hartman

Probasco also declares that Hartman never asked

him to consent to her representation of the Plaintiffs in
this case.

Probasco Decl. ¶ 9. Prior to the above referenced

letters sent by Coffey and Probasco to Hartman, neither had
ever

sought

legal

assistance

relating

to

administrative

and/or disciplinary matters or contacted Hartman for matters
relating to the performance of their duties, a potential
problem in the workplace, or because they were the target of
an internal affairs investigation.
18.

Hartman Decl. ¶¶ 13, 17-

Indeed, Hartman declares that her relationship with

5

Coffey is primarily an adversarial one, because she has crossexamined him extensively in multiple disciplinary actions.1
Id. ¶ 19.

Moreover, Hartman declares that she has not “had

any conversation with either Chief Coffey or Lt. Probasco, or
ever disclosed any information that would harm them, or used
in a way adverse to their interest during this litigation.”
Id. ¶ 20.
On

September

Complaint.

Am.

19,

2013,

Compl.,

Plaintiffs

Doc.

No.

27.

filed
In

an

Amended

the

Amended

Complaint, Plaintiffs state a claim for retaliation based
upon First Amendment activity alleging that, inter alia,
after the FOP hired Hartman as counsel, who has a reputation
for

being

more

aggressive

in

challenging

disciplinary

charges, “the Chief has refused to negotiate a resolution of
charges with anyone who uses the services of that attorney.
Id. at ¶¶ 39, 40.

In the last year, the only officers who

have been offered negotiated resolutions have represented
themselves or hired alternate counsel.”

Id. at ¶ 40.

On

October 11, 2013, Defendants filed the pending Motion to
disqualify

Hartman

and

her

firm,

Attorneys

Hartman,

Chartered, from representing Plaintiffs.

Apparently, Pennsauken police officers who are members of the FOP have
obtained Hartman’s legal services in response to disciplinary actions
initiated by Coffey, as the Chief of Police, thus, requiring her to
cross-examine him in relation to the disciplinary action instituted by
him or on his behalf.
1

6

DISCUSSION
a. Conflict of Interest
The first issue before the Court is whether Hartman
should

be

interest.
issue.

disqualified

due

to

an

existing

conflict

of

Defendants have set forth many arguments on this

However, because the Court finds that a decision on

this dispute rests upon one pivotal issue, whether or not
there was an attorney-client relationship between Hartman and
either Coffey or Probasco, the arguments of the parties, while
reviewed and thoroughly considered, will not be set forth in
great detail herein.

As such, succinctly stated, Defendants

argue that Hartman and her firm have violated New Jersey Rule
of Professional Conduct (“RPC”) 1.7 because she has brought
this action against Coffey and Probasco.

Defendants argue

that the Legal Services Agreement, an express contract for
representation, along with the December 17th letter establish
that

both

Coffey

and

Probasco

relationship with Hartman.

had

an

attorney-client

Additionally, Defendants contend

that both Coffey and Probasco believed that Ms. Hartman and
her firm were their attorneys for issues related to their
jobs.2

Furthermore, FOP had to pay Hartman and her firm $15.00 per member per
month. Coffey Decl., Ex. B ¶ 3. In this regard, Coffey and Probasco
declare that they both pay monthly dues to the FOP for various
services, including prepaid legal services. Probasco Decl. ¶¶ 3-4;
2

7

On

the

other

hand,

Plaintiffs

first

argue

that

no

conflict exists because there has never been an attorneyclient relationship between Hartman and Coffey or Probasco.
Plaintiffs

argue

that

the

Legal

Services

Agreement

was

between Hartman and the FOP and only provided the members
access to legal services.

Further, the December 17th letter

was Hartman’s attempt to introduce herself to members of the
FOP,

provide

her

contact

information,

and

recite

the

circumstances upon which the members should contact her for
purposes of legal services.3

Lastly, Hartman declares that

at no time prior to the filing of this lawsuit did either
Coffey or Probasco attempt to utilize her services.4

Coffey Decl. ¶¶ 3-4. Neither party has established that $15.00 of each
member’s dues goes to Hartman and this is likely not the case since
other counsel was made available to Probasco and Coffey in this
instance.
3 Plaintiffs have provided an ethics opinion from David H. Dugan, III,
Esquire, finding that Coffey and Probasco were not clients of the firm
as they were simply eligible to be considered for pre-paid
representation. However, Dugan did not cite any ethics decisions nor
did he mention the December 17th letter in rendering his decision that
there was no attorney-client relationship between Hartman and
Defendants. As such, the Court requested an amended opinion to address
these concerns. On June 18, 2014, the Court received correspondence
from Plaintiffs attaching an e-mail from Dugan to Hartman which
indicated that he reviewed the December 17th letter and it did not
change his opinion. The Court did not receive an amended opinion which
referenced ethics decisions or any analysis as to why the December 17th
letter did not alter Dugan’s opinion. As such, the Court has opted not
rely on said opinion.
4 Indeed, Plaintiffs provide a certification from Henkel who declares
that when they have a contract for a legal service plan and a conflict
arises, a different attorney is provided to the member. Declaration of
Matthew Henkel (“Henkel Decl.”), Doc. No. 36-2. In this instance, when
it became apparent that there was a conflict between Hartman and
Probasco and Coffey, Henkel declares that arrangements were made for
Coffey and Probasco to consult with another attorney. Id. ¶ 8.

8

In this district, courts look to the New Jersey Rules of
Professional Conduct with regard to issues of professional
ethics.

L Civ. R. 103.1(a).

“When interpreting the RPC, the

Court looks to New Jersey's state courts' interpretation of
the RPC as primary authority and modifies it when required by
federal law.”

Delso v. Trustees For Ret. Plan For Hourly

Employees of Merck & Co., Inc., No. 04-3009, 2007 WL 766349,
at *5 (D.N.J. Mar. 6, 2007).

With regard to the pending

Motion seeking to disqualify Plaintiffs’ counsel, Defendants
bear

the

burden

of

“proving

that

disqualification

appropriate because the RPC was violated.”
disqualify

are

disfavored

and

are

Id.

considered

is

Motions to
a

drastic

measure, as such, the court must closely scrutinize the facts
to ensure a just result.
F.

Supp.

2d

344,

See Montgomery Academy v. Kohn, 50

349

(D.N.J.

1999).

Moreover,

disqualification determinations are highly fact-specific and
the court must approach "such problems with a keen sense of
practicality as well as a precise picture of the underlying
facts."

Id.

In deciding motions to disqualify, the court

must balance the "sacrosanct" privacy of the attorney-client
relationship and the right of a party to proceed with counsel
of its choice.

Id. at 349-350.

In this case, Defendants

assert that Hartman should be disqualified from this case

9

because her representation of Plaintiffs would violate RPC
1.7(a) which provides, in pertinent part:
(a) Except as provided in paragraph (b), a lawyer
shall not represent a client if the representation
involves a concurrent conflict of interest. A
concurrent conflict of interest exists if:
(1) the representation of one client will be
directly adverse to another client;
RPC 1.7(a)(1).
rule

can

be

It follows that before the above-referenced
applied

attorney-client

and

disqualification

relationship

had

to

considered,

exist.

Thus,

an
the

preliminary issue this Court must consider is whether or not
there was an attorney-client relationship between Hartman and
either Coffey

or Probasco

by way of the

Legal Services

Agreement and the December 17th letter.
After careful consideration, the Court finds that there
was never an attorney-client relationship, either explicit or
implied,

between

Hartman

and

either

Coffey

or

Probasco.

First, neither the Legal Services Agreement nor the December
17th letter created an attorney-client relationship.
attorney-client

relationship

begins

with

a

“[T]he

non-lawyer's

reliance on the professional skills of an attorney, who, in
turn, knows of this reliance and accepts responsibility for
it.”

Delso, 2007 WL 766349 at *7.

“The relationship must be

a mutually aware, consensual relationship.”

Id.

To this

end, “[t]he client must demonstrate from an identifiable

10

action or manifestation, reliance on an attorney in his
professional capacity” and “[t]o complete the relationship,
the attorney must accept professional responsibility for the
undertaking.”

Id.

Here, the Legal Services Agreement was entered into
between Hartman and the FOP to ensure that the FOP members
had access to legal services in the event that an incident
anticipated by said Agreement arose. It did not create an
attorney-client relationship between Hartman and each member
of the FOP en masse.

To the contrary, the Agreement merely

provided the mechanism by which the members of the FOP would
have access to legal services, however, as contemplated by
the Agreement, the member had to engage in some action or
manifestation establishing the need for said service.5

See,

e.g., U.S. v. Fisher, 692 F. Supp. 488, 491-93 (E.D. Pa.
1998)(no attorney-client relationship where individual union
members

were

merely

eligible

to

receive

advice

from

a

designated attorney pursuant to a prepaid legal services
fund)(emphasis added). Thus, no attorney-client relationship
would have been created prior to the point where an event

The Agreement provides that Hartman would act as counsel to members
who “require legal assistance” and additionally indicates that Hartman
would provide legal services “if” certain events occur, as outlined in
the Agreement, requiring legal assistance.
Thus, the Agreement
anticipates that certain conditions precedent had to occur before legal
representation would even be necessary.
5

11

and/or incident anticipated by the Agreement occurred and the
member

contacted

regarding same.6

Hartman

to

secure

her

legal

services

At that point, barring a conflict, Hartman

would provide legal services as anticipated by the Agreement
thereby establishing the attorney-client relationship.
Similarly, the December 17th letter does not create an
attorney-client relationship.

While the Court was initially

concerned by the use of the word “retained” in the letter as
supporting the existence of an attorney-client relationship,
the use of said term does not, and cannot, transform the
letter, which is nothing more than an introductory letter, to
that of a retainer agreement.
term,

the

letter

merely

Apart from the use of said
provides

Hartman’s

contact

information to FOP members in the event that they required

Notably, cases cited by Defendants in support of the Motion highlight
some action taken by both the client and the attorney which provided
the basis for concluding that an attorney-client relationship had been
established. See, e.g., Montgomery Acad. v. Kohn, 82 F. Supp. 2d 312,
317 (D.N.J. 1999)(attorney-client relationship established based upon
confidential communications); Petit-Clair v. Nelson, 344 N.J. Super.
538, 544 (App. Div. 2001)(attorney plaintiff who represented two
corporations deemed to have attorney-client relationship with
defendants, owners of corporation, where defendants relied on attorney
plaintiff's guidance and advice, attorney plaintiff had previously
represented one of the defendants in an unrelated matter, and
defendants engaged in confidential communications with attorney
plaintiff); Estate of Spencer v. Gavin, 400 N.J. Super. 220 (App. Div.
2008)(attorney-client relationship between attorney and estate clients
in formation of a foundation on behalf of the estate because, inter
alia, the foundation could not have been the attorney’s client during
the foundation’s formation because same did not exist).
6

12

legal

services

Agreement.

related

to

incidents

anticipated

by

the

To find to the contrary would only serve to

elevate form over substance, as all the facts before the Court
demonstrate that there was no attorney-client relationship
between Hartman and Probasco or Coffey.

Significantly, prior

to the filing of this lawsuit, neither Coffey or Probasco
sought legal advice or services from Hartman; she never
received any confidential information from either Coffey or
Probasco;

and,

notably,

Hartman

characterizes

her

relationship with Coffey as “adversarial” in that she has
cross-examined him many times during her representations of
clients in connection with disciplinary matters.

As the case

law dictates, this Court must consider this issue with a keen
sense

of

practicality

and,

even

with

existence

of

the

Agreement and the December 17th letter, these particular facts
clearly establish that neither Coffey nor Probasco ever had
an attorney-client relationship with Hartman.
Second, an implied attorney-client relationship does not
exist

either.

relationship

To
"a

establish

party

must

an
show

implied
(1)

attorney-client

that

it

submitted

confidential information to a lawyer, and (2) that it did so
with the reasonable belief that the lawyer was acting as the
party's attorney."
350.

Montgomery Academy, 50 F. Supp. 2d at

Here, neither Coffey nor Probasco ever sought Hartman’s

13

services prior to the filing of this litigation.
end,

it

is

undisputed

confidential

that

information

neither
Hartman.

to

Defendant
The

To this
provided

fact

that

Defendants contacted Hartman after this litigation was filed
and she informed them both that she could not represent them
due to a conflict is of no moment, as it certainly did not
create

an

attorney-client

correspondence
informing

in

this

Defendants

regard

that

attorney due to a conflict.
Defendant

relationship.

she

was
could

Again,

strictly
not

the

limited

serve

as

to

their

Hartman did not meet with either

and no confidential

information

was exchanged.

Importantly, the Agreement specifically provides that “[t]he
members understand that if Attorneys Hartman deems there to
be a conflict other counsel will have to be retained for those
with whom the conflict exists.” This is exactly what occurred
in this instance and the FOP provided Defendants with another
attorney to consult with regarding the instant civil action.
As such, Hartman has not violated RPC 1.7.
b. Lawyer as Witness
The remaining issue before the Court is whether or not
Hartman should be disqualified because she is a necessary
witness in this case.

Defendants argue that Ms. Hartman

cannot represent Plaintiffs without violating RPC 3.7(a),
since her testimony will be necessary in light of Plaintiffs’

14

claim of retaliation on the grounds that Coffey refused to
negotiate the resolution of disciplinary charges with any of
the

officers

Hartman

represents.

Defendants

argue

that

Hartman would have personal knowledge as to whether Coffey
refused to negotiate, which Coffey denies.
Plaintiffs

argue

that

Hartman’s

In opposition,

disqualification

is

not

necessary because while RPC 3.7 does not require one to
provide certainty that an attorney will have to testify to
warrant

disqualification,

there

must

exist

a

requisite

likelihood that the attorney will be a necessary witness in
that the attorney can provide evidence that is not available
through other means.

In this regard, Plaintiffs argue that

the evidence required to demonstrate whether or not Coffey
negotiated is easily obtainable through her clients, Coffey,
and Township records.
Here, the Court finds that disqualification pursuant to
RPC

3.7(a)

is

simply

not

necessary

at

this

juncture.

Significantly, RPC 3.7(a) states a lawyer “shall not act as
an 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.” “The explicit language of RPC 3.7(a)

15

only prohibits an attorney from acting as an ‘advocate at
trial.’” Tangible Value, LLC v. Town Sports Intern. Holdings,
Inc., No. 10-1435, 2012 WL 4660865, *3 (D.N.J. Oct. 1, 2012).
Pretrial discovery has not even commenced in this case, thus,
based

on

the

plain

language

of

RPC

3.7,

Hartman’s

disqualification is not warranted pursuant to this particular
Rule.
CONCLUSION
For

the

foregoing,

the

Court

finds

that

Motion

to

disqualify Katherine D. Hartman, Esquire is hereby denied.
First, Hartman has not violated RPC 1.7 because she did not
have an attorney-client relationship with either Defendant
Coffey or Probasco.

Second, pursuant to the plain language

of RPC 3.7, Hartman’s disqualification is not warranted at
this juncture.
The accompanying Order will be entered.

June 30, 2014
Date

s/ Karen M. Williams
Karen M. Williams
United States Magistrate Judge

16