NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0108-24
PENELOPE MAUER,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. March 28, 2025 APPELLATE DIVISION STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, ANN KLEIN FORENSIC CENTER, THE BOARD OF TRUSTEES OF THE ANN KLEIN FORENSIC CENTER, REED GLADEY, ANN KENYON, GLENN FERGUSON, ELIZABETH CONNOLLY, and VALERIE MIELKE,
Defendants-Respondents. ______________________________
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, STATE OF NEW JERSEY, DEPARTMENT OF HEALTH, DIVISION OF BEHAVIORAL HEALTH SERVICES, TRENTON PSYCHIATRIC HOSPITAL, ROBYN WRAMAGE-CAPOROSO, CHIEF EXECUTIVE OFFICER, TRENTON PSYCHIATRIC HOSPITAL, ROBIN MURR, DIRECTOR OF HUMAN RESOURCES, TRENTON PSYCHIATRIC HOSPITAL, ANN KLEIN FORENSIC CENTER, KRISTIN HUNT, DIRECTOR OF HUMAN RESOURCES, and ANN KLEIN FORENSIC CENTER,
Argued January 29, 2025 – Decided March 28, 2025
Before Judges Currier, Marczyk, and Paganelli.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-0197-17 and L-0388-22.
Donald F. Burke, Jr., argued the cause for appellant (Law Office of Donald F. Burke, attorneys; Donald F. Burke and Donald F. Burke, Jr., on the briefs).
Kathleen E. Dohn argued the cause for respondents (Brown & Connery, LLP, attorneys; Kathleen E. Dohn and Therese M. Taraschi, on the brief).
The opinion of the court was delivered by
MARCZYK, J.A.D.
Plaintiff Penelope Mauer appeals from the trial court's July 31, 2024
order denying her motion to disqualify the law firm of Brown & Connery LLP
A-0108-24 2 (B&C) as counsel for defendants. The primary issue on appeal is whether the
indictment 1 of William Tambussi, Esq. (Tambussi), a law partner at B&C,
creates a conflict of interest requiring the disqualification of the entire law
firm from representing defendants in this action. We conclude no conflict of
interest exists under the circumstances presented and therefore affirm the trial
court's decision.
I.
In January 2017, plaintiff filed a complaint (Mauer I) naming as
defendants, the State; New Jersey Department of Human Services (DHS); Ann
Klein Forensic Center (AKFC); the Board of Trustees of the AKFC; and
several employees of those entities, Reed Gladey; Ann Kenyon; Glenn
Ferguson; Elizabeth Connolly; and Valerie Mielke. Plaintiff alleged
defendants retaliated against her in violation of the Conscientious Employee
Protection Act (CEPA) 2 for reporting suspected patient abuse. In March 2022,
1 Following oral argument, defendants advised the indictment against Tambussi had been dismissed and asserted the appeal is therefore moot. Plaintiff responded that the appeal is not moot because the trial court stayed its decision for forty-five days to allow the State to appeal and the State has indicated it planned to appeal. Given that we do not have a final resolution of the underlying matter, we have determined to issue our opinion. 2 N.J.S.A. 34:19-1 to -14.
A-0108-24 3 Tambussi and another attorney at B&C were designated as trial counsel for
defendants.
Shortly thereafter, plaintiff filed a second complaint (Mauer II) against
the State; the Department of Health (DOH), Division of Behavioral Health
Services; Trenton Psychiatric Hospital; AKFC; and employees of those
entities, Robyn Wramage-Caporoso, Robin Murr, and Kristin Hunt. Plaintiff
asserted defendants retaliated against her in violation of CEPA and breached
her employment contract. Defendants again retained B&C to represent them.
The cases were subsequently consolidated.
In June 2024, the State indicted Tambussi, alleging that he participated
with George Norcross in crimes related to the development of the Camden
waterfront. The indictment states Tambussi "is an attorney and partner" at
B&C and "the long-time personal attorney to" Norcross. It alleged Norcross
and his associates extorted and coerced others to acquire property and
development rights and that Tambussi "was an active participant in the
Norcross Enterprise's plot to use . . . Camden's government to bring a
condemnation action" against a developer.
Following the indictment, Tambussi withdrew his appearance on behalf
of defendants. Therese M. Taraschi, an attorney at B&C, certified that prior to
his withdrawal, Tambussi's "involvement in this matter was limited strictly to
A-0108-24 4 the filing of the designated trial counsel notice" and asserted he "performed no
substantive work in the defense of Mauer I [or] Mauer II." She further
certified she and Kathleen E. Dohn from B&C performed all the substantive
work in the defense of both matters, along with another attorney who has since
left the firm.
Against the backdrop of Tambussi's indictment and B&C's continued
representation of defendants, plaintiff filed a motion to disqualify the law firm.
Specifically, she contended B&C had an unwaivable conflict of interest due to
the Attorney General's indictment of Tambussi. Relying on Rule of
Professional Conduct (RPC) 1.7(a)(2), plaintiff argued Tambussi's indictment
created a "significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former
client, or a third person, or by a personal interest of the lawyer." She asserted
this conflict was imputed to the other lawyers associated with B&C under RPC
1.10. Plaintiff also relied on the Office of the Attorney General, Outside
Counsel Guidelines (2022) [hereinafter AG Guidelines], to support her
argument that the indictment created a positional conflict requiring B&C's
disqualification. She further reasoned that under RPC 1.9 and Dewey v. R.J.
Reynolds Tobacco Co., 109 N.J. 201 (1988), Tambussi's disqualification
resulted in the disqualification of B&C because it is a partnership.
A-0108-24 5 The trial court requested that defendants file supporting certifications
from DHS and DOH employees and Assistant Attorney General Stephanie
Cohen. Both state employees certified they had not requested B&C to
withdraw as their counsel, were satisfied with the representation, and desired
for the firm to remain their counsel. Cohen, in turn, certified defendants had
not requested B&C to withdraw as their counsel following the indictment and
that the Office of the Attorney General (OAG), Division of Law (DOL), had
not terminated B&C's representation as defendants' counsel.
On July 31, 2024, the trial court denied plaintiff's motion to disqualify
B&C from representing defendants, finding the indictment of Tambussi did not
create a conflict of interest requiring disqualification. The court found it
"[f]actually . . . important to note that [B&C] is not adverse to the State or to
the Attorney General." Notably, the court indicated defendants are neither part
of the OAG nor factually connected to the indictment. It further held RPC 1.7
was not implicated because B&C and defense counsel do not have any adverse
interest to defendants. Additionally, it noted Tambussi was indicted in his
personal capacity and was not involved in the litigation of this matter.
The court found the record "d[id] not cast any doubt" that B&C counsel
would be "zealous advocates for" defendants. Likewise, the court concluded
the imputation of conflicts under RPC 1.10 was inapplicable because no
A-0108-24 6 concurrent conflict of interest exists under RPC 1.7, given that defendants are
not part of the OAG.
Furthermore, the court determined B&C's representation of defendants
would not be materially limited by B&C's responsibilities to another client, a
former client, a third person, or by a personal interest of the lawyer. It found
the certifications submitted by defendants' representatives reinforced that
neither B&C nor its attorneys working on the case had any interest adverse to
their clients. For the same reason, the court found the AG Guidelines were not
implicated and that no positional conflict existed to warrant disqualification of
B&C. Finally, the court held RPC 1.9 was not implicated because the Dewey
case, upon which plaintiff relied, involved different facts and applied an
outdated version of the Rule. Consequently, the court concluded plaintiff
failed to meet her burden of proving there was a reasonable basis to disqualify
B&C grounded in an actual conflict.
II.
Plaintiff argues the trial court erred in denying the motion to disqualify
B&C because: the firm has a conflict contrary to the AG Guidelines due to the
indictment of Tambussi; B&C's status as an LLP prevents it from continuing to
represent defendants after one of its partners has been disqualified; public
entities cannot waive conflicts; and the indictment references B&C and an
A-0108-24 7 unnamed partner as participants in wrongdoing. In contrast, defendants argue
the court properly denied plaintiff's motion to disqualify B&C because
plaintiff failed to show that a conflict of interest exists under either the AG
Guidelines or the RPCs.
"[A] determination of whether counsel should be disqualified is, as an
issue of law, subject to de novo plenary appellate review." City of Atl. City v.
Trupos, 201 N.J. 447, 463 (2010). "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)). Thus, courts view disqualification motions "skeptically in
light of their potential abuse to secure tactical advantage." Escobar v. Mazie,
460 N.J. Super. 520, 526 (App. Div. 2019) (citing Dewey, 109 N.J. at 218).
"In evaluating motions for the disqualification of counsel for an
adversary pursuant to . . . RPC [1.9]," courts must "balance competing
interests, weighing the need to maintain the highest standards of the profession
against a client's right freely to choose his counsel." Twenty-First Century
Rail Corp. v. N.J. Transit Corp., 210 N.J. 264, 273-74 (2012) (quoting Dewey,
109 N.J. at 218). However, "determining how to strike that balance fairly"
requires courts "to recognize and to consider that 'a person's right to retain
A-0108-24 8 counsel of his or her choice is limited in that there is no right to demand to be
represented by an attorney disqualified because of an ethical requirement.'" Id.
at 274 (quoting Dewey, 109 N.J. at 218).
The party seeking the disqualification "bears the burden of persuasion."
RRI Gibbsboro, LLC, 471 N.J. Super. at 194. "[D]isqualifying an attorney or
an office of attorneys based on a conflict 'must have some reasonable basis'
grounded in an actual conflict." State v. Smith, 478 N.J. Super. 52, 64 (App.
Div. 2024) (citing State v. Harvey, 176 N.J. 522, 529 (2003)).
A.
Plaintiff asserts B&C has a conflict contrary to the AG Guidelines.
Specifically, she contends B&C has a "positional conflict" due to the Attorney
General's indictment of Tambussi and B&C continuing to represent the State in
this matter. Plaintiff further asserts the indictment's references to B&C
conflicts with the DOL's duties to safeguard the public's confidence and
interest under the AG Guidelines. Defendant counters B&C has no positional
conflict under the AG Guidelines because Tambussi was indicted in his
personal capacity, the indictment bears no relation to facts and allegations in
the underlying case, and the B&C attorneys handling the defense do not have
any adverse interest to their clients or the State.
A-0108-24 9 In cases where the DOL retains outside counsel, the AG Guidelines seek
to ensure that "outside counsel provide the highest quality of legal
representation and services for the State while maintaining effective
supervision and cost controls." AG Guidelines, at 1. Law firms are deemed to
agree to adhere to the guidelines upon accepting a retention agreement with the
State. Ibid. Furthermore, the DOL "has a duty to protect the public interest,"
ensuring "the legal system operates in a manner that safeguards the public's
confidence in the integrity and impartiality of its administration." Ibid. As
such, the State has conflict requirements beyond those mandated by the RPCs.
Id. at 2.
Specifically, a "positional conflict" can "arise from counsel's advocacy
of positions conflicting with important State interests"—the existence of which
is "a fact-sensitive determination." Id. at 3. Generally, outside counsel should
"avoid advocating a position that would limit the authority of the State client,
would expand the scope of potential liability of the State client, or would
require the State client to divulge information that the State client generally
regards as confidential or privileged." Ibid. "Outside counsel have a
continuing obligation to ascertain whether positions they intend to assert on
behalf of other clients are inconsistent with the interests of the State . . . ."
Ibid. After consulting with outside counsel, the DOL must "determine, in its
A-0108-24 10 sole discretion, whether an impermissible positional conflict exists, or whether
other circumstances exist that would undermine the public's confidence in the
fair and proper operation of State government." Id. at 4.
Here, the court correctly concluded the AG Guidelines are not
implicated because nothing in the indictment or this civil action would cause
B&C to advocate a position that would conflict with or be adverse to the
interests of the State or defendants. Plaintiff asserts a conclusory argument
that B&C has a positional conflict "as a result of the indictment of Tambussi
by the New Jersey Attorney General." However, she does not specifically
articulate what positional conflict exists. She, likewise, provides no support
for her contention that the indictment's references to B&C "does not
'safeguard[] the public's confidence' or 'protect the public interest.'"
Contrary to plaintiff's arguments, the indictment of Tambussi does not
create a positional conflict requiring B&C's disqualification. Notably, the
DOL has not determined a positional conflict exists, as required by the AG
Guidelines. Id. at 3. Indeed, Cohen, who is fully aware of the underlying
litigation and plaintiff's motion to disqualify, certified the DOL has not
terminated B&C's representation of defendants or requested their withdrawal.
Defendants also certified they desired the continued representation by B&C.
A-0108-24 11 Moreover, the indictment named Tambussi individually as a defendant.
Tambussi did not perform any substantive work in this case prior to the
indictment. Additionally, the allegations against Tambussi regarding certain
real estate transactions in Camden are far afield from plaintiff's underlying
CEPA and breach of contract claims in this consolidated matter.
Thus, in defending against plaintiff's employment-based claims, B&C
will not be required to advocate a position that is inconsistent with or
prejudicial to the State's interest in prosecuting unrelated criminal charges
against Tambussi. AG Guidelines, at 3. Therefore, the trial court correctly
determined B&C's representation of defendants does not create a positional
conflict of interest contrary to the AG Guidelines.
B.
Plaintiff contends that given B&C is a partnership, it cannot continue
representing defendants where one of its partners is disqualified. She reasons
Tambussi was previously counsel of record, and his knowledge is imputed to
his partners. Plaintiff relies on Dewey for the proposition that it is improper
for Tambussi to represent the State after his indictment and, therefore, it is also
improper for his law partners to continue representing the same clients.
Defendants, in turn, assert plaintiff's argument fails because RPC 1.9 is
A-0108-24 12 inapplicable, and Dewey is factually distinguishable and based on an outdated
version of RPC 1.9.
RPC 1.9 outlines various duties a lawyer owes to former clients.
Specifically, it prohibits a lawyer, who represented a client, from representing
another client thereafter "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(a). A public entity, however, "cannot consent to a representation otherwise
prohibited by this Rule." RPC 1.9(d).
Under RPC 1.10, lawyers associated with a law firm are prohibited from
"knowingly represent[ing] a client when any one of them practicing alone
would be prohibited from doing so by RPC 1.7 or RPC 1.9." Nevertheless, a
lawyer's conflict of interest is not imputed if "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." Ibid.
Here, given the clear language of RPC 1.9, the trial court correctly
determined "there is no basis to support plaintiff's position that RPC 1.9 is
implicated." Notably, defendants are not former clients of B&C. Moreover,
there is no evidence that B&C's representation of any former clients creates a
A-0108-24 13 conflict of interest in their representation of defendants. Accordingly, because
no conflict exists under RPC 1.9, there is no imputed conflict to B&C pursuant
to RPC 1.10.
In addition to the inapplicability of RPC 1.9, plaintiff's reliance on
Dewey is misplaced. In Dewey, the plaintiff's firm hired an attorney who
previously worked in one of the defendant's law firms for three years on the
same case. 109 N.J. at 207. The defendant moved to disqualify the plaintiff's
firm. Id. at 208. Weighing the disqualifying imputed conflict against the
client's "interest in being represented by counsel of her choice," the Court
ordered the attorney to continue representation notwithstanding the ethics
violation. Id. at 218-19. The Court explained that if finding an RPC violation
ended the inquiry, it "would be constrained to order the [law firm's]
disqualification . . . . However, . . . a motion for disqualification calls for us to
balance competing interests, weighing the 'need to maintain the highest
standards of the profession' against 'a client's right freely to choose his [or her]
counsel.'" Id. at 218 (quoting Gov't of India v. Cook Indus., Inc., 569 F.2d
737, 739 (2d. Cir. 1978)).
Unlike Dewey, plaintiff provides no evidence that Tambussi or any
members of B&C are "side-switching" attorneys. That is, none of the
attorneys at B&C initially represented plaintiff and then were subsequently
A-0108-24 14 employed by B&C to represent defendants. Moreover, the 2004 amendments
to the RPCs abolished the "appearance of impropriety" factor that Dewey, 109
N.J. at 214-16, applied to find a conflict of interest under RPC 1.9. Trupos,
201 N.J. at 464 (citing In re Sup. Ct. Advisory Comm. on Pro. Ethics Op. No.
697, 188 N.J. 549, 552 (2006)).
Accordingly, the trial court properly rejected plaintiff's reliance on
Dewey and its principles concerning conflicts of interest with former clients.
Therefore, given B&C's representation of defendants does not conflict with the
interests of any former client, neither RPC 1.9 nor RPC 1.10 requires the
disqualification of the firm.
C.
Plaintiff next argues that public entities cannot waive conflicts under
RPC 1.7(b)(1), assuming a conflict exists under RPC 1.7(a). Plaintiff also
notes the indictment references B&C and an unnamed partner, which implies
the law firm participated in Tambussi's alleged wrongdoing. In contrast,
defendants contend no conflict of interest exists under RPC 1.7 because the
Tambussi indictment does not involve B&C or its clients, and there is no
significant risk that B&C's representation of defendants will be materially
limited.
A-0108-24 15 RPC 1.7(a) prohibits lawyers from representing a client "if the
representation involves a concurrent conflict of interest." A concurrent
conflict of interest arises when:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
[RPC 1.7(a)(1)-(2).]
Thus, "RPC 1.7 reflects 'the fundamental understanding that an attorney will
give complete and undivided loyalty to the client [and] should be able to
advise the client in such a way as to protect the client's interests, utilizing his
professional training, ability and judgment to the utmost.'" J.G. Ries & Sons,
Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 223 (App. Div. 2006) (internal
quotation marks omitted) (alteration in original) (quoting In re S.G., 175 N.J.
132, 139 (2003)). Moreover, unlike private clients, a public entity cannot
waive a conflict. RPC 1.7(b)(1).
RPC 1.7(a)(1) prohibits a lawyer from representing a client in litigation
that is adverse to another client. Comando v. Nugiel, 436 N.J. Super. 203, 214
(App. Div. 2014). A concurrent conflict of interest is inherent where counsel
engages in "dual representation" of clients with adverse interests to each other.
A-0108-24 16 Baldasarre v. Butler, 132 N.J. 278, 295-96 (1993). For instance, the Court in
Baldasarre prohibited an attorney from representing both the buyer and seller
in a commercial real estate transaction. Ibid. We have noted an attorney
should not represent the driver and passenger of a vehicle in a suit against the
driver of another vehicle unless there is a legal bar to the passenger suing the
driver. McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 497 (App. Div. 2011).
Otherwise, a conflict of interest would arise "if a crossclaim or counterclaim is
made by the other driver." Ibid. No such conflict has been established here.
Under RPC 1.7(a)(1), Tambussi's indictment does not render B&C's
representation of any one defendant to be "directly adverse" to a co -defendant.
Notably, plaintiff fails to identify any conflict either among defendants
themselves or between defendants and B&C. Moreover, plaintiff does not
indicate how the indictment involving an entirely different matter would
somehow create a conflict for B&C in representing defendants in an unrelated
civil action involving an alleged CEPA violation and breach of contract.
There is no indication defendants here are adverse to each other. Rather, it
appears their interests are aligned in defending against plaintiff's claims.
Likewise, there is no imputed conflict under RPC 1.10 based on RPC
1.7(a)(2). The mere possibility that a potential conflict of interest could arise
at a future date does not preclude concurrent representation under RPC
A-0108-24 17 1.7(a)(2). "[T]he possibility of a conflict of interest engenders a duty of full
disclosure and disqualification if an actual conflict occurs." Sears Mortg.
Corp. v. Rose, 134 N.J. 326, 343 (1993) (emphasis added). Hence, "there must
be 'a significant risk that a lawyer's ability to consider, recommend or carry out
an appropriate course of action for the client will be materially limited as a
result of the lawyer's other responsibilities or interests.'" In re Op. No. 17-
2012 of Advisory Comm. on Pro. Ethics, 220 N.J. 468, 478 (2014) (quoting
Model Rules of Prof. Conduct, cmt. 8 on R. 1.7 (2013)). Plaintiff fails to
explain how the indictment of Tambussi interferes with B&C's independent
professional judgment in pursuing appropriate action on behalf of their clients
in this matter.
Plaintiff's argument presupposes Tambussi in fact had a conflict based
on his indictment. However, we need not reach that issue because even if we
assume, for the purposes of this appeal, he had a conflict under RPC 1.7(a)(2)
based on "there [being] a substantial risk that the representation of one or more
clients will be materially limited . . . by a personal interest of the lawyer," that
does not end the inquiry. A finding that Tambussi had a conflict based on his
"personal interest," in turn, requires us to consider whether his purported
conflict under RPC 1.7 is imputed to B&C under RPC 1.10. Assuming a
conflict exists for Tambussi under RPC 1.7(a)(2) because of a personal interest
A-0108-24 18 as a result of the indictment, there would be no imputed conflict to B&C under
RPC 1.10 because no conflict is imputed when the purported conflict is "based
on a personal interest of the prohibited lawyer," provided the personal interest
"does not present a significant risk of materially limiting the representation of
the client by the remaining lawyers in the firm." Plaintiff has made no such
showing here.
Plaintiff also does not explain how or why B&C "might be tempted to
favor one client over another." There is no indication B&C's representation of
any particular defendant would be adverse to another client or that B&C's
representation would be materially limited by the representation of another
client or former client under RPC 1.7. There is also no suggestion B&C
represented a client in the same or substantially related matter whose interests
are materially adverse to the interests of defendants here.
As the trial court stated, the record "does not cast any doubt" on defense
counsels' ability to zealously advocate for their clients. Therefore, no conflict
exists under RPC 1.7(a)(2) that would materially limit defense counsels' ability
to advocate for their clients and require B&C's disqualification. Moreover,
because we conclude there was no conflict under RPC 1.7, there is also no
imputed conflict as to B&C under RPC 1.10. Although the State cannot waive
A-0108-24 19 conflicts under RPC 1.7(b)(1), because we have concluded there is no such
conflict to waive, the trial court did not err.
Based on the foregoing, we conclude plaintiff has not met her burden in
establishing that B&C violated the AG Guidelines or has a conflict of interest
under RPC 1.7, RPC 1.9, or RPC 1.10. Accordingly, we affirm the trial court's
denial of plaintiff's motion to disqualify B&C.
Affirmed.
A-0108-24 20