Indictment Of Partner Does Not Disqualify Firm

The New Jersey Appellate Court affirmed the denial of a motion to disqualify a law firm based on the indictment of a partner who withdrew after the criminal charges were brought

Plaintiff Penelope Mauer appeals from the trial court’s July 31, 2024 order denying her motion to disqualify the law firm of Brown & Connery LLC (B&C) as counsel for defendants. The primary issue on appeal is whether the indictment 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.

Facts

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,  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.

Tambussi then withdrew and was replaced by other counsel from his 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.

Disqualification denied

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. 

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.

Ethics Rules

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.

Further

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 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. 172012 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 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.

(Mike Frisch)