MICHAEL STRADA VS. SUSSEX COUNTY BOARD OF CHOSEN FREEHOLDERS (L-0671-18, SOMERSET COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0113-18T2
MICHAEL STRADA,
Plaintiff-Appellant,
v.
SUSSEX COUNTY BOARD
OF CHOSEN FREEHOLDERS,
GEORGE F. GRAHAM,
JONATHAN M. ROSE, CARL F.
LAZZARO and ROBERT MIKAS,
Defendants-Respondents.
______________________________
Submitted July 8, 2019 – Decided July 16, 2019
Before Judges Yannotti and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0671-18.
George T. Daggett, attorney for appellant.
Gebhardt & Kiefer, PC, attorneys for respondents
(Richard P. Cushing, on the brief).
PER CURIAM
Plaintiff Michael Strada appeals from an order entered by the Law
Division on August 2, 2018, which disqualified his attorney, George T. Daggett,
from representing him in this action.1 We affirm.
Plaintiff became the Sheriff of Sussex County in 2011, and he has held
that position since that time. In April 2018, Daggett filed a three-count
complaint on behalf of plaintiff against defendants, the Board of Chosen
Freeholders of Sussex County; Freeholders George F. Graham, Carl F. Lazzaro,
and Jonathan M. Rose; and County Treasurer Robert Mikas. In the complaint,
plaintiff alleged that defendants had engaged in certain actions, which
unlawfully interfered with the operations of the Sheriff's Office, created a hostile
work environment, and violated the Conscientious Employee Protection Act,
N.J.S.A. 34:19-1 to -14.
Defendants thereafter filed a motion to disqualify Daggett, arguing that
Rule 1:15-3(a) precludes him from representing plaintiff in this lawsuit while he
is representing defendants in criminal matters in Sussex County. The rule
provides:
An attorney who is a sheriff or county prosecutor, or is
in the employ or service of such an official, shall not
practice on behalf of any defendant in any criminal,
1
The matter was scheduled for oral argument; however, counsel for respondents
did not appear and counsel for appellant waived argument.
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quasi-criminal or penal matter, whether judicial or
administrative in nature. Nor shall an attorney who is
a sheriff of any county or in the sheriff's employ
practice in any court in that county.
[Ibid.]
Plaintiff opposed the motion. He argued that application of the rule should
be reconsidered in light of the Supreme Court's amendments to the Rules of
Professional Conduct (RPC), which eliminated the "appearance of impropriety"
standard, and its adoption of RPC 1.8(k), which governs conflicts of interests by
attorneys employed by a public entity. Plaintiff argued that Daggett is not
disqualified under RPC 1.8(k).
In support of his argument, plaintiff submitted a certification in which he
stated that unlike the sheriff's offices in larger counties, the Sussex County
Sheriff's Office (SCSO) "does not conduct criminal investigations." He asserted
the SCSO "primarily regulates" the county's correctional facility and provides
security for the Sussex County Courthouse.
The judge heard oral argument on the motion, reserved decision, and later
placed an oral decision on the record. The judge found that the elimination of
the "appearance of impropriety" standard had no effect upon the
disqualifications mandated by Rule 1:15-3(a). The judge determined that Rule
1:15-3(a) applied and precluded Daggett from representing plaintiff in this
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litigation. The judge memorialized his decision in an order dated August 2,
2018. We thereafter granted plaintiff's motion for leave to appeal from the trial
court's order.
On appeal, plaintiff argues that the disqualifications mandated by Rule
1:15-3(a) were based on the "appearance of impropriety" standard, which the
Supreme Court eliminated when it adopted RPC 1.8(k). RPC 1.8(k) states that
A lawyer employed by a public entity, either as a
lawyer or in some other role, shall not undertake the
representation of another client if the representation
presents a substantial risk that the lawyer's
responsibilities to the public entity would limit the
lawyer's ability to provide independent advice for
diligent and competent representation to either the
public entity or the client.
Daggett argues that RPC 1.8(k) does not preclude him from representing
plaintiff in this case while representing defendants in criminal matters in Sussex
County.
A trial court's "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) (citing J.G. Ries & Sons, Inc. v.
Spectraserv, Inc., 384 N.J. Super. 216, 222 (App. Div. 2006)). Therefore, the
trial court's decision on an attorney's disqualification is "not entitled to any
special deference" on appeal. See Manalapan Realty, LP v. Twp. Comm. of
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Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604
(1990); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Pearl Assurance Co. v. Watts,
69 N.J. Super. 198, 205 (App. Div. 1961)).
It is well-established that the Supreme Court has authority under the New
Jersey Constitution to adopt rules that govern practice and procedure in this
State's courts. See Winberry v. Salisbury, 5 N.J. 240, 245 (1950). In addition,
the State Constitution grants the Court the "authority to regulate the legal
profession." Trupos, 201 N.J. at 461 (quoting In re Supreme Court Advisory
Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 554 (2006)).
In the exercise of that authority, the "Court adopted the [RPCs] in an effort
to . . . provide clear, enforceable standards of behavior for lawyers." Ibid.
(second alteration in original) (quoting Ethics Op. No. 697, 188 N.J. at 554).
Prior to 2004, "RPC 1.7 "forb[ade] an attorney from representing a client in a
situation that would create an appearance of impropriety, even if there were no
actual conflict[.]" See State v. Loyal, 164 N.J. 418, 429 (2000).
In January 2001, the Court appointed a Commission to review the RPCs
in light of a report issued by the American Bar Association evaluating the rules
governing professional conduct of attorneys, and to make recommendations on
the proposed RPCs and other issues. See Supreme Court of N.J., Administrative
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Determinations in Response to the Report and Recommendation of the Supreme
Court Commission on the Rules of Professional Conduct (2003) (Administrative
Determinations), reprinted in Michaels, New Jersey Attorney Ethics 1143
(2007). In December 2002, the Commission issued its report. Ibid.
Among other things, the Commission recommended elimination of the
"appearance of impropriety" standard from the RPCs. Id. at 1151. In its report,
the Commission stated in pertinent part:
No rule has engendered as much criticism as that
constituting "the appearance of impropriety" as a
separate ethics violation. After careful consideration,
the Commission has concluded that other, more
objective rules better serve the interests of the bench,
bar, and public. Further informing the Commission's
conclusion is the Court's constitutional power over
practice and procedure through which the judiciary may
control the conduct of attorneys in judicial proceedings.
In sum, the Commission believes that the elimination
of the appearance-of-impropriety rule will not lower the
standards of the Bar and expose the public to unethical
conduct.
The appearance of impropriety provisions in the
RPCs seek to reduce the risk of improper conflicts.
Because of their vagueness and ambiguity, those
provisions, however, are not appropriate as ethics
standards. Moreover, courts have the independent
authority, which they have exercised, to take corrective
action when the risk of improper conflict threatens the
administration of justice.
[Id. at 1151-52.]
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The Commission also recommended that a municipal prosecutor's
disqualification from criminal defense work in the same county should not
extend to members or associates of the municipal prosecutor's law firm. Id. at
1152. The Commission stated, however, that the disqualification would still
apply to criminal defense work that involves matters that have occurred in the
municipality of the prosecutor or law enforcement personnel and other material
witnesses from that municipality. Ibid. The Commission explained:
In reaching its recommendation, the Commission
reasoned that: 1) the better basis for personal and
imputed disqualifications of a part-time municipal
prosecutor is the Supreme Court's rule-making
authority over practice and procedure, see State v.
Clark, 162 N.J. 201, 205-06 (2000), 2) the critical
considerations for determining such a disqualification
are fairness in the prosecution of criminal and quasi-
criminal matters, preservation of the right to a fair trial,
effective assistance of counsel, prosecutorial
impartiality, and the integrity of the administration of
criminal justice, and 3) an ethics rule, particularly one
based on the appearance of impropriety standard is
unnecessary.
[Ibid.]
In September 2003, the Court issued its administrative determinations in
response to the Commission's report. Id. at 1143. The Court accepted the
Commission's recommendation and eliminated the "appearance of impropriety"
standard for the reasons stated by the Commission. Id. at 1152-53.
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In addition, the Court agreed with the Commission's recommendation and
determined that the "municipal prosecutor's disqualification should be personal
to him or her except in the circumstances set forth in the Commission's
comments." Id. at 1153. The Court therefore amended Rule 1:15-4(c) to state:
As applied to partners, employers, employees, office
associates, shareholders, and members, the limitations
imposed on the practice of law by municipal
prosecutors by [Rule] 1:15-3(b) shall extend only to
matters that have occurred in the municipality in which
the prosecutor serves and any matters that involve law
enforcement personnel or other material witnesses from
that municipality.
The Court also adopted RPC 1.8(k), which pertains to conflicts of interest by
"lawyer[s] employed by . . . public entitie[s], either as a lawyer or in some other
role[.]"
Notwithstanding plaintiff's arguments to the contrary, we are convinced
that the Court's elimination of the "appearance of impropriety" standard in the
RPCs did not alter or impliedly repeal Rule 1:15-3(a). As noted previously, the
Commission recommended the elimination of the "appearance of impropriety"
standard because it was vague and ambiguous, and did not provide a proper
standard for ethical conduct by attorneys. Administrative Determinations,
reprinted in Michaels, at 1152. The Commission stated that the better approach
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is to regulate disqualifications with objective rules, adopted by the Supreme
Court in the exercise of its rule-making authority. See id. at 1151.
The Commission did not recommend any change to the limitations on the
practice of law set forth in Rule 1:15-3. The only change that the Commission
recommended and was later implemented by the Supreme Court, is the change
to Rule 1:15-4(c), which limited the disqualifications for municipal prosecutors.
See id. at 1153.
Thus, the elimination of the "appearance of impropriety" standard did not
affect the limitations on practice in Rule 1:15-3(a), which apply in this case.
Indeed, Rule 1:15-3(c) makes clear that the disqualifications under that rule
apply in addition to any limitations imposed by the RPCs or other provisions of
the law. Rule 1:15-3(c) states, "Paragraphs (a) and (b) of the rule shall not be
deemed to exhaust the limitations on practice necessitated by a conflict of
interest on the part of an attorney representing a public body, agency, or officer."
Plaintiff argues, however, that the Court's decision in Trupos supports his
contention that the disqualifications provided by Rule 1:15-3(a) must be
reconsidered in light of the elimination of the "appearance of impropriety"
standard from the RPCs. In Trupos, a law firm represented the City of Atlantic
City in its defense of tax appeals in 2006 and 2007, and served as a non-voting
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consultant on a committee responsible for evaluating those real estate tax
assessments. Trupos, 201 N.J. at 452-53.
The issue before the Court in Trupos was whether the law firm was
prohibited from representing a group of plaintiffs challenging subsequent tax
assessments. Id. at 454. The Court noted that 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 substantially related matter in which that client's
interests are materially adverse to the interests of the former client[.] '" Id. at
462 (second and third alterations in original).
The Court stated that "whether the matters are the 'same or substantially
related' must be based in fact, as [the Court] ha[s] 'reject[ed] the appearance of
impropriety as a factor to be considered in determining whether a prohibited
conflict of interest exists under RPC . . . 1.9.'" Id. at 464 (third and fourth
alterations in original) (quoting Ethics Op. No. 697, 188 N.J. at 562 n.5). The
Court established a standard for determining whether matters are substantially
related, and applying that new standard, decided that the law firm was not
disqualified from representing the parties in challenging the tax assessments.
Id. at 467-70.
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We are convinced that plaintiff's reliance upon Trupos is misplaced. As
we have explained, in that case, the Court considered and interpreted RPC 1.9.
Id. at 462. Rule 1:15-3(a) was not at issue in Trupos. Furthermore, there is
nothing in Trupos which suggests the disqualifications provided by Rule 1:15-
3(a) must be reconsidered in light of the elimination of the "appearance of
impropriety" standard.
We note that on appeal, plaintiff has not argued that Rule 1:15-3(a) does
not apply to Daggett. Indeed, Daggett is an attorney "in the employ or service
of" the Sheriff. Therefore, the rule precludes Daggett from representing plaintiff
in this case while representing defendants in criminal matters in Sussex County.
Therefore, the trial court correctly determined that Daggett is barred by Rule
1:15-3(a) from representing plaintiff in this case.
We have considered plaintiff's other arguments and conclude they are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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