KILLION et al v. COFFEY et al
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
MICHAEL KILLION, et al.
Civil No. 13-1808-RMB-KMW
CHIEF JOHN COFFEY, et al.
Williams, Magistrate Judge:
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.
submitted to the Court in support of the current Motion and
in opposition thereto. By letter dated December 17, 2011,
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
Declaration of John Coffey (“Coffey Decl.”) ¶ 5, Ex.
A, Doc. No. 29-6.
In the letter, Hartman stated, in relevant
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
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
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
Id., Ex. B ¶ 1(h)(emphasis added).
did not contemplate coverage for affirmative legal action in
the form of a civil lawsuit.
Id., Ex. B, ¶ 1(h)(2).
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.”
Id. at ¶ 2.
The Agreement also stated
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
Compl., Doc. No. 1.
Defendants are members of the FOP.
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
Coffey Decl. ¶ 10.
On April 5, 2013, Coffey wrote to
Henkel and indicated that it appeared that Hartman has a
Id. ¶ 11, Exh. D.
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.
I advised FOP President
Coffey Decl. ¶ 12, Ex. E.
Coffey also noted to
Hartman that it appears that there is a conflict of interest.
In response, Hartman advised Coffey that she disagrees
with his conclusion that she is “obligated to provide [him]
with legal services” and that she was sure that the Township
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.
represent Plaintiffs in this action.
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
Probasco Decl. ¶ 9. Prior to the above referenced
letters sent by Coffey and Probasco to Hartman, neither had
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.
Hartman Decl. ¶¶ 13, 17-
Indeed, Hartman declares that her relationship with
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.
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
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.
October 11, 2013, Defendants filed the pending Motion to
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.
a. Conflict of Interest
The first issue before the Court is whether Hartman
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.
that the Legal Services Agreement, an express contract for
representation, along with the December 17th letter establish
relationship with Hartman.
Additionally, Defendants contend
that both Coffey and Probasco believed that Ms. Hartman and
her firm were their attorneys for issues related to their
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;
conflict exists because there has never been an attorneyclient relationship between Hartman and Coffey or Probasco.
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
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
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.
In this district, courts look to the New Jersey Rules of
Professional Conduct with regard to issues of professional
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
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
appropriate because the RPC was violated.”
measure, as such, the court must closely scrutinize the facts
to ensure a just result.
See Montgomery Academy v. Kohn, 50
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
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
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;
It follows that before the above-referenced
preliminary issue this Court must consider is whether or not
there was an attorney-client relationship between Hartman and
by way of the
Agreement and the December 17th letter.
After careful consideration, the Court finds that there
was never an attorney-client relationship, either explicit or
First, neither the Legal Services Agreement nor the December
17th letter created an attorney-client relationship.
reliance on the professional skills of an attorney, who, in
turn, knows of this reliance and accepts responsibility for
Delso, 2007 WL 766349 at *7.
“The relationship must be
a mutually aware, consensual relationship.”
end, “[t]he client must demonstrate from an identifiable
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
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
e.g., U.S. v. Fisher, 692 F. Supp. 488, 491-93 (E.D. Pa.
1998)(no attorney-client relationship where individual union
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.
and/or incident anticipated by the Agreement occurred and the
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
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.
Apart from the use of said
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).
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.
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
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
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
confidential information to a lawyer, and (2) that it did so
with the reasonable belief that the lawyer was acting as the
Montgomery Academy, 50 F. Supp. 2d at
Here, neither Coffey nor Probasco ever sought Hartman’s
services prior to the filing of this litigation.
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
attorney due to a conflict.
Hartman did not meet with either
and no confidential
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’
claim of retaliation on the grounds that Coffey refused to
negotiate the resolution of disciplinary charges with any of
Hartman would have personal knowledge as to whether Coffey
refused to negotiate, which Coffey denies.
necessary because while RPC 3.7 does not require one to
provide certainty that an attorney will have to testify to
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
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)
hardship on the client.” “The explicit language of RPC 3.7(a)
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,
disqualification is not warranted pursuant to this particular
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
The accompanying Order will be entered.
June 30, 2014
s/ Karen M. Williams
Karen M. Williams
United States Magistrate Judge
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