NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0215-24
IN RE TALC BASED POWDER APPROVED FOR PUBLICATION PRODUCTS LITIGATION. February 6, 2026 ___________________________ APPELLATE DIVISION
Argued January 13, 2025 – Decided February 6, 2026
Before Judges Sumners, Chase and Augostini.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2648-15.
Peter G. Verniero argued the cause for appellants Johnson & Johnson, and LTL Management, LLC (Sills Cummis & Gross, PC, Barnes & Thornburg LLP, and Stephen D. Brody (O'Melveny & Myers LLP) of the District of Columbia and Virginia bars, admitted pro hac vice, attorneys; Susan M. Sharko, Stephen D. Brody, and Jessica L. Brennan, on the briefs).
Jeffrey M. Pollock argued the cause for respondent Beasley Allen Law Firm (Pollock Law LLC, attorneys; Jeffrey M. Pollock, of counsel and on the brief).
The opinion of the court was delivered by
CHASE, J.A.D.
This interlocutory appeal requires consideration of the ethical
obligations incumbent on attorneys who, having represented a client in complex litigation but now working in a non-lawyer capacity, subsequently
seek to advance interests aligned with that client's adversaries. The particular
circumstances presented concern the conduct of James Conlan, a former
partner at Faegre Drinker Biddle & Reath LLP ("Faegre"), who represented
defendants Johnson & Johnson ("J&J") and LTL Management LLC ("LTL") 1
in this multi-county talcum-based powder litigation ("talc litigation").
Conlan, as attorney for J&J, participated for nearly two years in
confidential strategy and settlement analysis of the talc litigation. After
departing his firm, Conlan started a new enterprise, Legacy Liability Solutions
("Legacy"), that pursued methods to acquire and resolve those same legal
liabilities. Conlan, as Legacy's Chief Executive Officer (CEO), actively
collaborated with attorneys from Beasley, Allen, Crow, Methvin, Portis &
Miles, P.C. ("Beasley Allen"), a leading plaintiff's firm in the talc litigation.
J&J, upon learning of Conlan's relationship with its primary legal
adversary, moved to disqualify Beasley Allen from the talc litigation as well as
the federal multidistrict litigation ("MDL") pending in New Jersey. Following
1 LTL is a wholly owned subsidiary of J&J created to manage J&J 's talc- claims. The trial court and parties at times used J&J to refer to both defendants, as do we.
A-0215-24 2 a joint evidentiary hearing before the trial court and federal MDL Magistrate
Judge, the trial court denied J&J's motion to disqualify Beasley Allen. 2
Conlan's prolonged access to J&J's privileged information, followed by
collaborative efforts with its most prominent adversary, leaves us with clear
concern for the preservation of trust intrinsic to the attorney-client
relationship. After reviewing the factual record, the arguments presented, and
the governing legal standards, we find that as CEO of Legacy, Conlan's
association with Beasley Allen violated RPC 1.9(a) and 5.3. Thus, the trial
court order denying J&J's motion to disqualify Beasley Allen is reversed.
I.
Colan's Background
Conlan began his legal career in 1988 at Sidley Austin LLP's bankruptcy
group, becoming a partner and vice chairman of its restructuring practice.
There, he developed expertise in structural optimization and disaffiliation of
companies.3 He joined Faegre in June 2020 as a partner, focusing on
bankruptcy-related matters.
2 As of this date, the Magistrate Judge has not ruled on J&J's motion for disqualification. 3 Structural optimization and disaffiliation is the process of consolidating an entity's legal liabilities and then disaffiliating from them. For example, a
A-0215-24 3 At Faegre, Conlan represented J&J in the talc litigation from July 2020
until March 2022. He dedicated significant time to the matter, billing 1,600
hours and $2.24 million in legal fees, including more than 1,100 hours in 2021 .
Erik Haas, J&J's Worldwide Vice President for litigation, who oversaw
the talc litigation as in-house counsel for J&J, testified that Conlan played a
pivotal role in coordinating and strategizing J&J's defense. Conlan regularly
participated in weekly calls with Haas and other counsel to discuss settlement
strategies, bankruptcy, and alternative resolutions. According to Haas, Conlan
"was very, very active" during these calls "and had very strong points of view
and communicated them strongly" to Haas and to the outside counsel defense
group.
Conlan testified that he was "present" on these calls, but that most of the
discussion points were "just not [his] area." Conlan stated that he "was a
restructuring lawyer" and "not a personal injury lawyer" and that "solely his
role [wa]s, how to use proceedings to capture [talc claims], not just currents
but futures." He testified that "in these all-hands meetings, a significant
number of the items being discussed were just not in [his] area" and that, while
____________________
company might "optimize" its liabilities by housing them in a subsidiary, and then "disaffiliate" from that subsidiary through a sale or spin-off.
A-0215-24 4 the information from the calls and meetings exposed him to J&J's privileged
and confidential information, he did not understand some of it.
James Murdica, a partner at Barnes & Thornburg and another J&J
outside counsel, corroborated that he and Conlan led the overall strategy to
secure a global resolution of the talc cases. Murdica stated they conferred
daily and coordinated high-level strategy calls with J&J's in-house litigation
team.
Andy Birchfield, a principal at Beasley Allen, has led mass tort efforts
against J&J since 2020. Beasley Allen maintains a national leadership role in
the MDL, having filed its first case in 2013. Birchfield testified to possessing
deep knowledge of the claims and J&J's litigation approach, acquired before
his first encounter with Conlan.
Imerys' Bankruptcy
In April 2019, Imerys, the supplier of talc to J&J, filed for Chapter 11
bankruptcy due to similar talc claims. J&J participated as a creditor and
objector in the bankruptcy. Conlan represented J&J's interests in those
proceedings.
During Imerys' bankruptcy, J&J attempted to "bolt-on" a reorganization
plan to resolve its own claims. Beasley Allen, representing claimants on the
Imerys' Tort Claimants Committee ("TCC"), participated in negotiations with
A-0215-24 5 Conlan. Conlan received confidential J&J information and actively
contributed to settlement matrix evaluations for current and future claimants.
Haas said that Conlan's work in the Imerys' bankruptcy on behalf of J&J
included discussions of J&J's position on the talc litigation in the multicounty
litigation (MCL) and MDL as well as "the amount to which [J&J] would be
willing to pay to resolve those claims both on an aggregate basis and a per
claim basis." Haas indicated that various factors including "age, disease state,
severity of disease state, length of exposure" "go into assessing how much on a
per claim basis would be or should be made available to the future claimants,
[and] the current claimants" which gets "built into what's called the settlement
matrix."
According to Haas, Conlan "was extensively involved" in evaluating
settlement matrices that were being considered as a potential resolution to the
cases in the MCL and MDL. Conlan also had access to J&J's confidential
information and engaged in privileged confidential discussions regarding the
evaluation of these settlement matrices. When J&J's Imerys' plan stalled,
Conlan advised Haas on alternative strategies, including filing J&J's own
bankruptcy and considering structural optimization and disaffiliation.
Conlan confirmed that, around 2021 and while outside counsel for J&J,
he participated in litigation analysis in the context of the Imerys' bankruptcy.
A-0215-24 6 Conlan agreed that he participated in calls and meetings with the in-house J&J
counsel and outside counsel teams regarding J&J's bolt-on effort during the
Imerys' bankruptcy and he "assume[d]" that he received detailed privileged
and confidential analysis in connection with that effort. He also confirmed
that he negotiated with counsel for the Imerys' TCC and counsel for the future
claimants on J&J's behalf during the Imerys' bankruptcy.
J&J's Bankruptcy and Legacy's Role
In October 2021, J&J filed its first bankruptcy petition ("LTL 1
bankruptcy") to address its talc liabilities. Haas testified that Conlan
participated intimately in strategy and settlement evaluations. These
discussions included evaluation of the potential value of the pending talc
claims, "both at the aggregate level and the per-claim level" and how
bankruptcy compared to other potential resolutions available to J&J.
Conlan left Faegre to form Legacy during this bankruptcy. Upon his
departure, Conlan was aware of how J&J valued cases and what strategies
would make them more or less likely to settle. He had intimate knowledge of
highly valuable confidential information that was not known to Beasley Allen.
At the end of January 2023, the Third Circuit dismissed J&J's LTL 1
bankruptcy. In re LTL Mgmt., LLC, 58 F.4th 738, amended by 64 F.4th 84
(3d Cir. 2023). Days later, Conlan, on behalf of Legacy, submitted a written
A-0215-24 7 proposal to Haas and the Chairman and CEO of J&J for a transaction involving
structural optimization and disaffiliation, under which Legacy would acquire
J&J's talc liabilities and negotiate settlements with plaintiff firms. The last
paragraph of the proposal stated that Legacy "reserves the right, in its
discretion, to negotiate settlements with interested asbestos-plaintiff law firms
of some or all pending claims filed by such firms, all such settlements to
become effective at [c]losing." J&J did not respond to this proposal.
J&J filed a second bankruptcy ("LTL 2 bankruptcy") in April 2023.
Shortly thereafter, Conlan, acting through Legacy, engaged directly with
Birchfield and Beasley Allen. Neither Conlan nor Birchfield informed J&J's
counsel of their collaboration. Legacy and Beasley Allen exchanged extensive
communications and Beasley Allen provided Legacy with confidential
analyses, including settlement matrices. Birchfield said that "it never crossed
[his] mind" to tell anyone at J&J that he was meeting with Conlan because "it
was a meeting with Legacy, a vendor." Birchfield admitted that there are other
companies like Legacy that acquire and manage mass tort liabilities , but he or
Beasley Allen "didn't talk with any of those other companies."
Birchfield testified that, after J&J filed the LTL 2 bankruptcy, two
lawyers from Beasley Allen served as representatives of a Beasley Allen client
on the TCC for the LTL 2 bankruptcy. He confirmed that their work included
A-0215-24 8 participating in mediation during June 2023. Birchfield and Beasley Allen
"wanted Legacy to be part of that mediation" because, in their view, Legacy
offered J&J a path to the finality it claimed could only be achieved through
bankruptcy, "which [Beasley Allen] knew not to be true." He believed Legacy
"had a role to play" by presenting an option to resolve the talc claims through
structural optimization and disaffiliation, and he "personally" wanted the
mediators to hear from Legacy.
Conlan confirmed that he had written and oral communications with
Birchfield and other Beasley Allen attorneys and held additional in-person
meetings with them. Birchfield acknowledged that Beasley Allen provided
Legacy with work product, including an "ovarian cancer leadership memo,"
discussing ovarian cancer case values, injuries, and damages, as well as a
"draft attachment regarding ovarian cancer claim values."
Beasley Allen and Legacy held several exchanges concerning a "draft
term sheet for the Legacy ovarian cancer proposal." However, according to
Birchfield, Legacy made no substantive changes to the term sheet initially
proposed by Beasley Allen, and similar term sheets had been shared in prior
mediation processes with J&J. Furthermore, as he and Beasley Allen prepared
for the mediation with Legacy, they were also simultaneously seeking the
dismissal of the LTL 2 bankruptcy. Conlan stated that during this period, he
A-0215-24 9 knew, through conversations with Birchfield, that Beasley Allen opposed J&J's
LTL 2 bankruptcy.
Conlan agreed that Legacy's goal was to reach a structural optimization
and disaffiliation agreement with J&J to resolve talc liabilities—at a time
when J&J wanted to resolve them through bankruptcy. Conlan acknowledged
that if J&J had succeeded in confirming a plan to resolve the talc claims
through bankruptcy, Legacy would not profit, and he admitted his desire was
to earn compensation from any transaction.
The mediation took place in June 2023, with Beasley Allen and Legacy
participating. At the evidentiary hearing, Conlan acknowledged that the
mediators did not know of his prior representation of J&J in the litigation.
Birchfield likewise testified that the mediators, in response to interrogatories,
indicated they did not know during the mediation that Conlan had been former
counsel to J&J. The mediation did not result in a resolution or settlement
between J&J and any plaintiffs as Birchfield testified that J&J did not
"engage."
The bankruptcy court dismissed the LTL 2 bankruptcy in July 2023.
Birchfield confirmed that, even after the dismissal, he and Legacy continued to
discuss Legacy's proposal to use structural optimization and disaffiliation to
globally resolve J&J's talc liabilities.
A-0215-24 10 In connection with J&J's motion to disqualify Beasley Allen, the
plaintiff Steering Committee in the MDL, headed by Beasley Allen, asserted
all related communications and documents between them and Conlan in the
LTL 2 mediation were protected by mediation privilege. In March 2024, a
Special Adjudicator4 in the MDL found these materials privileged, noting that
the communications primarily reflected Beasley Allen's intent to pursue the
Legacy settlement proposal.
The Special Adjudicator observed that Conlan and Birchfield
"collaborated on a settlement proposal to J&J," and recognized J&J's
legitimate interest in ensuring its former attorney's privileged information was
not shared with adversaries. In viewing the communications in camera, the
Special Adjudicator noted that the "[s]ubjects covered in the privileged
documents" included "[Beasley Allen's] interest and intent of including the
referenced settlement proposal [by Legacy] in the mediation with J&J";
"[c]ommunications and meetings with the mediator about the [Legacy]
settlement proposal and exchanges about the content of the proposal"; "[c]lose
collaboration and strategy communications regarding how to consider,
conduct, participate in, initiate and/or continue to mediate with J&J regarding"
4 At the time of the appointment, the designation was "Special Master." However, by order dated April 5, 2024, the term "Special Master" in the Rules was replaced by "Special Adjudicator."
A-0215-24 11 the Legacy proposal; and "[r]egular communications with Birchfield and other
counsel for plaintiffs regarding the foregoing matters, including when and how
to present the [Legacy] settlement proposal to J&J in the context of
mediation."
Post-Bankruptcy
On the day the second bankruptcy was dismissed, Conlan reached out to
Haas, proposing a meeting about a structural optimization transaction in which
Legacy would ultimately acquire J&J's talc liabilities. Conlan also contacted
J&J's Treasurer to present the same proposal. This meeting, which occurred in
September 2023 and included J&J's Treasurer, litigation department, products
liability department lawyers, Conlan, and Legacy's chief information officer,
ended with J&J rejecting Legacy's proposal.
When Conlan reached out to Haas to propose the structural optimization
plan, he did not disclose that he had previously communicated with Birchfield
and Beasley Allen about the plan, including during mediation in the LTL 2
bankruptcy. Conlan also failed to inform anyone at J&J prior to or at the
September 2023 meeting that he had discussed talc litigation issues with
Birchfield and Beasley Allen.
At J&J's third quarter earnings call in October 2023, Haas publicly
stated J&J's intent to resolve the talc claims through a third bankruptcy or
A-0215-24 12 through an appeal. The next day, Conlan emailed J&J's Treasurer, copying
Haas, stating that Legacy had the support of lead counsel for the ovarian
cancer claimants, including Birchfield, for an MDL opt-in settlement matrix.
He represented that Birchfield and others were willing to meet with J&J to
discuss this proposal.
When Haas received Conlan's email, he testified that he was "utterly
shocked and appalled that our former counsel was conferring with our
adversary"; specifically, the lead adversary who was opposing J&J's
bankruptcy resolution. According to Haas, this was the first time he became
aware that Conlan was working with Beasley Allen.
Murdica learned of Conlan's communications with Birchfield and
Beasley Allen "a few hours before" Conlan sent the email, when several
plaintiff's lawyers approached him at a mass torts conference to discuss
Legacy and Birchfield's plan. Birchfield acknowledged he may have discussed
Legacy's structural optimization plan at the conference.
On November 2, 2023, Conlan published an article in Bloomberg Law
News advocating for structural optimization and disaffiliation as preferable to
bankruptcy for resolving mass torts—a strategy J&J had considered during the
period when Conlan served as outside counsel. The article noted Conlan's
prior partnership at Sidley Austin but omitted his representation of J&J in the
A-0215-24 13 talc litigation and on bankruptcy issues. The same day, Birchfield issued a
press release supporting Conlan's article.
When Murdica read Conlan's article, he became concerned that Conlan
was revealing J&J's privileged legal strategy. He wrote to Conlan urging him
to cease such disclosures and expressing concern about breaching attorney -
client confidentiality.
On November 9, 2023, Conlan sent another proposal to J&J's Board for
Legacy to acquire J&J's talc-liable entities as part of a global settlement,
requiring J&J's talc entities to hold $19 billion in assets. The proposal stated
that it had the support of leadership counsel in both federal and state cases and
included a settlement matrix that Legacy had received from Beasley Allen.
Conlan stated that his communications with Beasley Allen had continued "on
and off" for six months and maintained that he did not require a waiver from
J&J since, in his view, he was not practicing law, and his actions were
"consensual."
Conlan acknowledged his post-representation obligations, including not
sharing or using J&J's confidential information. He asserted that structural
optimization and disaffiliation was not a J&J confidence, claimed not to have
disclosed J&J confidences to Birchfield or Beasley Allen, and argued that as a
former practicing lawyer, the Legacy proposal required no confidential
A-0215-24 14 information obtained from J&J. Yet, he also admitted that the ethical rules
would have prohibited him from working on the talc litigation with Beasley
Allen, "as an attorney or in any other role."
Birchfield testified that Beasley Allen would not have hired Conlan, as
an attorney or otherwise, to work on the talc litigation without a waiver. He
conceded he could not be certain whether Conlan had shared confidential J&J
information. Birchfield also acknowledged that, if J&J accepted Legacy's
proposal, Legacy would "stand in the shoes of J&J" and be as much an
adversary as J&J is now. Yet, Beasley Allen shared with Legacy its
confidential analysis of case values, injuries, and damages. Ultimately,
Birchfield did not believe he and Conlan had conspired against J&J, asserting
that Legacy's proposal, though contrary to J&J's preferred approach, served
J&J's best interests by eliminating the talc liability.
Trial Court's Decision
After the evidentiary hearing, the court denied defendants' motion to
disqualify Beasley Allen. In its written opinion, the court acknowledged that
J&J "argued Conlan violated RPCs 1.6, 1.9(a), and 1.9(c)" and that "Beasley
Allen is responsible for Conlan's violations of RPCs 5.3, 8.4(a), and 1.10 ." It
then stated the gravamen of the case was that it had to decide whether J&J met
A-0215-24 15 their burden "that an actual conflict existed and that Conlan shared
confidential and privileged information belonging to J&J with Birchfield."
The court found that Birchfield and others at Beasley Allen knew Conlan
represented J&J beginning in 2020. After the court determined that Conlan
credibly responded to allegations of various RPC violations, the court
concluded that Conlan did not serve as an attorney after leaving Faegre, was
never employed by Beasley Allen as a lawyer or non-lawyer, and therefore,
was not associated with Beasley Allen in any capacity.
The court, however, determined "[t]here is no doubt, and it is
undisputed, that Conlan communicated, heard, and participated in many
meetings and discussions involving privileged and confidential information
belonging to J&J and the talc litigation." Additionally, the court found that
Conlan "engaged in significant work related to evaluating settlement matrices
considered for potentially resolving the talc claims."
Regarding J&J's assertion that Conlan disclosed confidential J&J
information, the court found that J&J did not meet its burden of proof or offer
reasonable inferences that Conlan shared privileged information with
Birchfield or anyone else at Beasley Allen. While the court acknowledged that
Conlan and Birchfield met and spoke frequently to promote the Legacy
proposal to resolve the talc claims, it stated that "an attorney or law firm
A-0215-24 16 cannot be disqualified based on unsupported suppositions or accusations that a
former client's attorney, working in a non-lawyer capacity, participated in
meetings and discussions about a business proposal—even within the same
litigation." The court thus concluded that "there is no credible evidence to
support a violation of RPC 1.6 by Conlan."
Regarding RPC 1.9, the court found that after Conlan left Faegre in
March 2022, he did not represent any clients as CEO of Legacy, which the
court deemed fatal to J&J's argument. Although the Special Adjudicator found
that Conlan and Birchfield "collaborated" on a settlement proposal, the trial
court determined this collaboration alone did not justify disqualification.
The court also held that J&J's reliance on a "presumption of shared
confidences" between Conlan and Beasley Allen was no longer valid under
New Jersey law, as this presumption, based on an appearance of impropriety,
was eliminated from the RPCs following our Supreme Court's decision in S.
Ct. Adv. Comm. on Prof. Ethics Opin. No. 697, 188 N.J. 549 (2006).
Finally, the court summarily concluded that "even if Conlan had violated
RPCs 1.6 or 1.9, the facts did not necessarily trigger violations of RPCs 5.3,
8.4(a), or 1.10."
II.
A-0215-24 17 We first address the standard of review that guides our analysis. The
determination of whether counsel should be disqualified is an issue of law
subject to de novo review. City of Atl. City v. Trupos, 201 N.J. 447, 463
(2010); see also Twenty-First Century Rail Corp. v. N.J. Transit Corp., 210
N.J. 264, 274 (2012). The burden is on the movant to prove a basis for
disqualification. State v. Hudson, 443 N.J. Super. 276, 282 (App. Div. 2015)
(citing State v. Morelli, 152 N.J. Super. 67, 70-71 (App. Div. 1977)).
"Disqualification of counsel is a harsh discretionary remedy which must
be used sparingly." Dental Health Assocs. S. Jersey, P.A. v. RRI Gibbsboro,
LLC, 471 N.J. Super. 184, 192 (App. Div. 2022) (quoting Cavallaro v. Jamco
Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000)). "[A] motion for
disqualification calls for [the court] to balance competing interests, weighing
the 'need to maintain the highest standards of the profession' against a 'client's
right to freely choose his [or her] counsel.'" Ibid. (alterations in original)
(quoting Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988)). In
doing so, "[c]ourts must engage in a 'painstaking analysis of the facts.'" Ibid.
(quoting Reardon v. Marlayne, Inc., 83 N.J. 460, 469 (1980)). "[O]nly in
extraordinary cases should a client's right to counsel or his or her choice
outweigh the need to maintain the highest standards of the profession."
Dewey, 109 N.J. at 220. Thus, any "'doubt must be resolved in favor of
A-0215-24 18 disqualification.'" Est. of Kennedy v. Rosenblatt, 447 N.J. Super. 444, 451
(App. Div. 2016) (quoting Herbert v. Haytaian, 292 N.J. Super. 426, 438-39
(App. Div. 1996)).
III.
J&J contends the trial court erred in finding, in conclusory fashion, that
Beasley Allen did not violate RPC 5.3(c). Specifically, it argues that, had
Conlan been acting as a lawyer, his collaboration with Beasley Allen in
mediation and on a settlement proposal of the talc claims during the pendency
of the LTL 2 bankruptcy would have violated RPC 1.9(a) and thus, violated
RPC 5.3(c).
RPC 5.3 states, in relevant part:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
....
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or ratifies the conduct involved;
(2) the lawyer has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action; or
(3) the lawyer has failed to make reasonable investigation of circumstances that would disclose
A-0215-24 19 past instances of conduct by the nonlawyer incompatible with the professional obligations of a lawyer, which evidence a propensity for such conduct.
[(emphasis added).]
"RPC 5.3 requires that every attorney 'make reasonable efforts to ensure
that the' conduct of those non-lawyers 'is compatible with [the attorney's own]
professional obligations' under the RPCs." In re Robertelli, 248 N.J. 293, 320
(2021) (quoting RPC 5.3(a), (b)). "Paragraph (c) specifies the circumstances
in which a lawyer is responsible for the conduct of such nonlawyers within or
outside the firm that would be a violation of the [RPCs] if engaged in by a
lawyer." Michels, New Jersey Attorney Ethics, RPC 5.3 Official Cmt. (Aug.
1, 2016) (2021) (emphasis added); In re Ruggiero, 261 N.J. 522, 522 (2025);
In re Sanchez, 261 N.J. 88, 88 (2025); see also In re Robertelli, 248 N.J. at 320
(quoting RPC 5.3(c)(1), (2)) (explaining attorneys are responsible for the
conduct of non-lawyers if the attorney "'orders or ratifies the conduct' that
would constitute an ethical violation if committed by the attorney or 'knows of
the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action'"). The "fundamental tenet of
professional responsibility" found in RPC 5.3 is that "an attorney may not do
through an agent that which he could not do himself." In re PMD Enters., 215
F. Supp. 2d 519, 529 (D.N.J. 2002).
A-0215-24 20 RPC 5.3 is triggered if Beasley Allen "associated" with Conlan, who the
court found was acting as a nonlawyer when he left Faegre in March 2022 to
become the CEO of Legacy. The trial court, while not analyzing RPC 5.3,
found in relation to other aspects of its opinion that Conlan was "not found to
be associated with the Beasley Allen law firm" since he was "never employed
either as a lawyer or as a non-lawyer by that law firm." However, RPC 5.3
specifically states that it applies "[w]ith respect to a nonlawyer employed or
retained by or associated with a lawyer." (emphasis added). Thus, the rule
does not require the nonlawyer to be employed or retained by the lawyer in
order for the nonlawyer to associate with a lawyer, otherwise that language of
RPC 5.3 would be rendered meaningless. See Cast Art Industries, LLC v.
KPMG LLP, 209 N.J. 208, 222 (2012) (quoting In re Attorney General's
Directive, 200 N.J. 283, 297-98 (2009)) (Courts "must presume that every
word in a statute has meaning and is not mere surplusage.")
RPC 5.3 does not define what it means for a lawyer to associate with a
nonlawyer. The verb "associate" has been defined as, "[t]o join or unite in
friendship, companionship, business, or some other common purpose, action,
or condition; to link together." Black's Law Dictionary 151 (12th ed. 2024).
The record portrays that beginning in May 2023, Conlan and Beasley
Allen lawyers regularly communicated by phone and in-person about the talc
A-0215-24 21 litigation. During this time, Birchfield testified that Beasley Allen sent Conlan
work product, including information about ovarian cancer case values, injuries,
and damages analysis that were relevant to the talc litigation. Conlan and
Beasley Allen engaged in mediation discussions regarding the talc claims and
proposing a structural optimization and disaffiliation settlement proposal to
J&J during the pendency of the LTL 2 bankruptcy, the communications over
which Beasley Allen later asserted a mediation privilege. The privilege log
revealed numerous communications beginning in April 2023 regarding matters
directly related to the talc litigation, on which Conlan had represented J&J . To
that end, the Special Adjudicator in the MDL described, in deciding that the
mediation communications were privileged, that "Conl[a]n and Birchfield
collaborated on a settlement proposal to J&J[,]" which the trial court accepted.
Even when the LTL 2 bankruptcy was dismissed in late July 2023,
Conlan, Birchfield, and Beasley Allen continued to communicate about
Legacy's structural optimization and disaffiliation settlement proposal for J&J.
Both Conlan and Birchfield testified that they were willing to meet with and
present the Legacy structural optimization and disaffiliation settlement
proposal to J&J together and that Beasley Allen supported Legacy's proposal,
as described in Conlan's emails to J&J. It is clear Conlan and Beasley Allen
worked together over several months by "join[ing] or unit[ing]" with Conlan
A-0215-24 22 for the same common purpose, to have the matter resolved by structural
optimization. Thus, Beasley Allen associated with Legacy and Conlan for
purposes of RPC 5.3.
Once RPC 5.3 has been triggered, Beasley Allen is responsible for
Conlan's conduct if that conduct would have been a violation of the ethical
rules had Conlan been acting as lawyer. RPC 5.3(c)(1). Therefore, our
analysis turns to RPC 1.9.
RPC 1.9 describes a lawyer's duties to former clients. RPC 1.9(a)
provides that:
"[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."
"RPC 1.9 is strictly construed" and "[t]he party who seeks the disqualification
bears the burden of persuasion." Dental Health Assocs., 471 N.J. Super. at
193-94.
"If, indeed, the current matter is 'the same' as the matter in which the
lawyer previously represented" the former client and if the lawyer "failed to
secure" the former client's "written consent to it, [the current] representation is
prohibited by plain operation of RPC 1.9(a)." Twenty-First Century Rail
Corp., 210 N.J. at 276. Matters can be considered the same if they "involve
A-0215-24 23 the same discrete phase" of the project or litigation or involve "the same
parties" and "the same dispute." Id. at 276-77. If the matters are the same,
then, in construing a potential violation of RPC 1.9(a), a court "need not
focus" on whether confidential information was revealed "because
disqualification, if the matter is indeed the same, does not turn on the
identification of any particular confidence having been revealed." Id. at 278.
That inquiry only arises "when the matters are not the same and the court is
charged with the task of determining whether they are substantially related for
purposes of applying RPC 1.9(a)." Ibid.
Conlan's work with Beasley Allen on a settlement proposal of the talc
claims is the same matter as that which Conlan worked on as outside counsel
for J&J for purposes of RPC 1.9(a). Both "involve the same discrete phase" of
the litigation—namely, working to globally resolve J&J's talc liabilities in the
overall talc litigation—and involve "the same parties" and "the same dispute."
Id. at 276-77.
The trial court determined that the fact that Conlan acted as a nonlawyer
when he worked with Beasley Allen after leaving Faegre was "fatal" to J&J's
argument under RPC 1.9, and that even if it had found that Conlan had
violated RPC 1.9, that would "not necessarily trigger[]" RPC 5.3. The trial
court's main focus in its opinion was that J&J could not prove Conlan gave any
A-0215-24 24 confidential information to Birchfield or Beasley Allen. However, because
this was the same matter, the focus should not have been on whether
confidential information was revealed. Twenty-First Century Rail Corp., 210
N.J. at 276. The relevant inquiry should have been whether Conlan would
have violated RPC 1.9 had he been acting as a lawyer for purposes of RPC
5.3(c).
Conlan stated that had he been acting as a lawyer, his actions in working
with Beasley Allen would have been an ethical violation, as he admitted that
the ethical rules "would have prohibited" him from "work[ing] on the [t]alc
[l]itigation" whether "as an attorney or in any other role." Birchfield similarly
testified that "no matter what [Conlan's] role was," he could not have "hire[d]
him as a lawyer at Beasley Allen to work on the [t]alc [l]itigation." Therefore,
it is acknowledged that had Conlan been acting as a lawyer, Conlan's conduct
of collaborating in mediation and in developing a settlement of the talc claims
with Beasley Allen against his former client J&J would have violated RPC
1.9(a).
Although both Conlan and Birchfield argued at the evidentiary hearing
that their interests were aligned with J&J because J&J also wanted resolution
of the talc claims, that assertion is disingenuous. The record is clear that
Conlan and Beasley Allen knew that J&J's preferred method of resolving the
A-0215-24 25 talc claims was through bankruptcy. In contrast, Conlan and Beasley Allen
wanted a settlement via structural optimization and disaffiliation. This was a
different method that J&J had already rejected, and which was clearly contrary
to J&J's preferred method of resolution. Realistically, Beasley Allen's goals in
reaching a settlement of the talc claims are clearly adverse to J&J, as Beasley
Allen wanted to settle at the greatest amount possible for its clients, as does
Conlan on behalf of Legacy for its own financial gain, while J&J wants the
opposite. Therefore, Conlan worked together with Beasley Allen, whose
interests in the talc litigation are materially adverse to those of Conlan's former
client, J&J.
Regarding the final component of RPC 5.3(c)(1), while Beasley Allen
may not have directed Conlan's conduct that would have constituted a violation
of RPC 1.9(a), it ratified such conduct. While Birchfield testified that Beasley
Allen did not seek out Conlan or Legacy, Beasley Allen did not stop Conlan's
actions; rather, Birchfield testified that the firm actively encouraged Conlan on
behalf of Legacy to participate in the June 2023 mediation and develop a
settlement proposal with them. The trial court accepted that Birchfield and
Beasley Allen "collaborated" on a settlement proposal with Conlan and
Legacy. This was despite, as the trial court found, Beasley Allen having
known since 2020 that Conlan represented J&J, its litigation adversary on the
A-0215-24 26 same issue, and previously negotiated on a settlement of these same talc claims
with Conlan when he was outside counsel for J&J.
That violation alone, were it the end of the inquiry, would result in the
disqualification of Beasley Allen from the MCL. However, our Supreme
Court has noted that once "the court concludes that disqualification is required
. . . , it must then weigh that conclusion against the affected client's right to
counsel of his or her choice." Dewey, 109 N.J. at 222. In weighing these
interests, our courts have found that "extraordinary circumstances" may justify
permitting a conflicted firm to continue representation. Barnes v. R.J.
Reynolds Tobacco Co., 246 N.J. Super. 348, 356-57 (App. Div. 1991).
For instance, in Dewey, after serving as co-counsel for three years in a
multi-party products liability litigation against tobacco and cigarette company
defendants, the plaintiff's firm hired an attorney that had previously worked in
one of the defendant's firms representing the tobacco companies, although that
attorney did not predominantly work on the tobacco cases while at the
defendant's firm. 109 N.J. at 206-07. The defendant-firm moved for the
plaintiff's firm's disqualification. Id. at 208.
While the Court determined that the side-switching attorney had violated
RPC 1.9(a), which was attributable to the plaintiff's firm through RPC 1.10(a),
it ultimately concluded that, although these RPC violations would normally
A-0215-24 27 result in the firm's disqualification, the firm should not be disqualified because
"such a drastic result in this case would produce undue prejudice to the
plaintiff as well as to the judicial system in general." Id. at 205, 217. The
Court held "that an order disqualifying counsel on the eve of trial would do
more to erode the confidence of the public with the legal profession and the
judicial process than would an order allowing the firm to continue its
representation of the plaintiff." Id. at 219. However, it conditioned the
plaintiff's firm's continued representation "to be furnished without
compensation for any services to be rendered henceforth" because while the
court could not "correct the tainted representation without unduly harming the
client" it could "prevent those . . . from profiting from their disregard of the
RPCs." Id. at 219-20. It further noted that its decision was "fact-sensitive"
and that allowing a disqualified firm to continue would only occur in
"extraordinary cases." Id. at 220.
Barnes involved another case that was part of the same products liability
lawsuits against the tobacco companies and the plaintiff in Barnes was
represented by the same plaintiff's firm as in Dewey. Barnes, 246 N.J. Super.
at 350-51. After finding that the plaintiff's firm had violated the ethical rules
and would be disqualified, we found extraordinary circumstances warranting
continued representation by that firm, including that the plaintiff's firm had
A-0215-24 28 "established an extremely close bond with all the plaintiffs," "spent thousands
of hours reviewing documents," and had "significant expertise in the field of
addiction which no other attorney for the plaintiffs possesses or could readily
develop." Id. at 354-55. However, as in Dewey, we similarly imposed the
limitation that the continued representation by the plaintiff's firm "should be
provided without any compensation for services rendered subsequent to the
date of" the court's decision in that case. Id. at 357.
Beasley Allen's role on behalf of plaintiffs in the talc litigation is similar
to the plaintiff's firm's role in both Dewey and Barnes, and this case, like
those, would call for the disqualification of a plaintiff's firm that has been an
integral part of a multi-county, multi-district, litigation. However, the Dewey
Court acknowledged that it could not "conceive of any situation in which the
side-switching attorney or his new firm would be permitted to continue
representation if, . . . the attorney had in fact actually represented the former
client." 109 N.J. at 220; see also U.S. v. Miller, 624 F.2d 1198, 1202-04 (3d
Cir. 1980) (affirming disqualification of law firm when lawyer violated New
Jersey rule by switching sides); IBM v. Levin, 579 F.2d 271, 283 (3d Cir.
1978) (affirming disqualification for law firm that represented both sides of
litigation "as a vindication of the integrity of the bar," despite the fact that
"specific injury to the moving party has not been shown" and that the
A-0215-24 29 disqualified firm had not obtained any information in the course of
representing IBM that would aid it in its current prosecution against IBM).
Beasley Allen knowingly collaborated with Conlan on the same issue
and in the same litigation that Conlan represented its adversary––J&J. "The
rules of professional behavior are not branches which bend and sway in the
winds of the job market" but are instead "the bedrock of professional conduct."
Dewey, 109 N.J. at 221 (quoting Reardon, 83 N.J. at 475). As such, based on
our de novo review, the appropriate remedy is disqualification. 5
Reversed and remanded for an order to be entered disqualifying Beasley
Allen. We do not retain jurisdiction.
5 Because we hold Beasley Allen is disqualified under R.P.C. 5.3, it is not necessary for us to determine if Beasley Allen violated RPCs 3.3(a)(5) and 8.4(c) for failing to disclose Conlan's previous representation to the mediators or misled the trial court in Birchfield's certifications.
A-0215-24 30