Lawyer As Witness In New Jersey

The New Jersey Appellate Division reversed a disqualification order

Defendants David Mazie and his law firm, Mazie Slater Katz & Freeman, LLC, appeal on leave granted by the Supreme Court  from a September 5, 2018 Law Division order disqualifying Mazie and every attorney at Mazie Slater, other than Adam Slater, from representing either Mazie or the firm in depositions or trial of a malpractice action brought against them by plaintiff Noemi Escobar, their former client. We reverse.

Although the malpractice complaint was filed in November 2017, motion practice directed to the complaint resulted in very little, if any, discovery having occurred by the time the disqualification order was entered the following September. Accordingly, the facts are not well developed. What we know is that defendants represented plaintiff in a representative capacity in a civil suit against the State of New Jersey and two of its employees as well as two hospitals and several other individuals for catastrophic injuries to her infant grandson at the hands of his father. N.E. for J.V. v. State Dep’t of Children & Families, Div. of Youth & Family Servs. , 449 N.J. Super. 379, 383-84 (App. Div. 2017). After plaintiff settled her claims against the private entities for $7,000,000, a jury found the State 100 percent liable for the baby’s injuries and awarded her $165,972,503.2 Id. at 384-85, 87. The court denied the State’s motion for new trial and judgment notwithstanding the verdict, and the State appealed. Id. at 387.

While the appeal was pending in this court, the State, which had argued qualified immunity in the trial court, made efforts to settle the case. The parties engaged the services of a mediator, and the State reportedly made different offers to settle, including a cash offer of $10,000,000 made after argument. After plaintiff rejected all of the State’s settlement offers, we reversed the judgment, finding the State employees entitled to qualified immunity, N.J.S.A. 59:3-3. N.E. 449 N.J. Super. at 408. The Supreme Court subsequently denied plaintiff’s petition for certification. N.E. v. State, Dep’t of Children & Families, 231 N.J. 214 (2017).

The gist of the malpractice claim against defendants is that they failed to properly advise plaintiff of the risks on appeal, rendering her unable to make an informed decision about settlement. Plaintiff also takes issue with the retainer agreement, claims Mazie took disbursements for general overhead not legally permissible and failed to file suit on her individual behalf. Defendants counterclaimed for contribution and indemnification in the event of a judgment in the minor’s favor.

Defendants were represented initially in this malpractice action solely by counsel appointed by their malpractice carrier. In January 2018, however, Mazie Slater partner Adam Slater also entered an appearance on behalf of defendants, prompting plaintiff to move to disqualify defendants from representing themselves in defense of her affirmative claims and on any counterclaim.

The issue

Plaintiff argued that Mazie and the attorneys at Mazie Slater would be necessary witnesses at trial, and thus New Jersey Rule of Professional Conduct 3.7 barred their participation as counsel for defendants in any phase of the litigation. Plaintiff contended any hardship to defendants by such a ruling was “non-existent,” because they were already represented by well-qualified counsel. Defendants countered that they had a right to represent themselves in any phase of the case, and because RPC 3.7 is expressly limited to lawyers acting as advocates at trial, it was premature to preclude any Mazie Slater lawyer from acting as counsel for defendants in any event. Defendants further argued that because the case centered on “the nature and value” of their legal services to plaintiff, the exception in RPC 3.7(a)(2) applied as well.

The trial court granted the motion.

And got it wrong

We agree that RPC 3.7 is a rule addressed only to a lawyer acting as an advocate at trial. Accordingly, the trial court judge erred in relying on it to bar all Mazie Slater lawyers from representing defendants at depositions or in any other pre-trial matters. The judge overread Main Events to hold “that other proceedings in the case,” such as depositions, “might so closely resemble the trial as to also implicate the rule.” The holding in Main Events is exactly to the opposite. Id. at 356-57.

In referring to pre-trial proceedings that might implicate RPC 3.7, Judge Debevoise was referring not to depositions, but to a pre-trial evidentiary hearing where the attorney would testify. Id. at 357…

Accordingly, we agree with defendants that any decision to disqualify any Mazie Slater lawyers based on RPC 3.7 at this stage of the proceeding was premature. We offer the following for guidance in the event the motion is renewed in advance of trial.

Guidance

As the burden of establishing disqualification is on the movant, Trupos, 201 N.J. at 462-63, it will be for plaintiff to establish that specific Mazie Slater lawyers will be necessary witnesses at trial. Further, RPC 3.7 does not have an imputed disqualification provision applicable here.

And

As Mazie has the same rights as other individuals in our courts, he can appear on his own behalf at trial even if he is likely to be a necessary witness.

But the issue may resurface

The September 5, 2018 order disqualifying defendants from appearing at depositions and trial pursuant to RPC 3.7 is reversed. Plaintiff is free to renew, at an appropriate time, a motion to disqualify those Mazie Slater lawyers, other than David Mazie who may appear on his own behalf, whom she can establish will likely be necessary witnesses from acting as counsel at trial in accordance with RPC 3.7 and this opinion.

(Mike Frisch)