Tuesday, May 29, 2012

New Jersey Supreme Court Says "No" to Unilateral "Side-Switching" Lawyers

Bloomberg BNA Reports: "New Jersey Supreme Court Clarifies Analysis of Former-Client Conflicts in ‘Same’ Matter," which is says: "Almost completely closes any escape hatch in New Jersey for lawyers to switch sides in the same dispute."
  • "In an opinion by Justice Helen E. Hoens, the court made clear that when a lawyer has previously represented a client in a matter and later represents the client's adversary in the same matter, the conflict is not analyzed under the two-part test announced in Atlantic City v. Trupos, 992 A.2d 762, 26 Law. Man. Prof. Conduct 282 (N.J. 2010), for evaluating whether matters are substantially related."
  • "The plain language of Rule 1.9 make clear, Hoens said, that if the prior and the subsequent matters are essentially the same, the representation is prohibited absent the former client's informed consent, confirmed in writing."
  • "As other evidence demonstrating that the matters were the same, the court pointed out that in his certification opposing disqualification, Meller noted that he advised his new client, PB Americas, about the former representation and the work he had performed for FKSB in 2004."
  • "But that was not his obligation under Rule 1.9(a), the court said. Instead, having realized that he had previously represented the client's adversary in the same matter, Meller was obligated to reach out to former client FKSB and affirmatively seek that client's permission before undertaking the new representation. Not having done so, the firm must be disqualified, the court concluded."
See the opinion: Twenty-First Century Rail Corp. v. New Jersey Transit Corp., N.J., No. A-101, 5/7/12.

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