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Client Conflicts DQ New Jersey Firm in Husband’s Defamation Suit

Dec. 9, 2019, 4:37 PM

A New Jersey appeals court disqualified a law firm from counseling a man suing his ex-wife because one of the firm’s attorneys had represented the ex-wife in a related matter.

J.G.S. was accused of abusing one of his children, and the state division of child protection and permanency began an investigation in 2017. His ex-wife, L.M.S., hired attorneys at ,Williams Law Group, including Elizabeth D. Burke, to represent her throughout the investigation.

Soon after, Burke left Williams Law Group to join Ziegler, Zemsky & Resnick, which J.G.S. then hired in 2018 for a defamation suit he filed against his ex in connection with the child protection investigation.

L.M.S. moved to disqualify Ziegler, Zemsky & Resnick, arguing that there was overlap of a lot of the same issues, including child custody. The court ultimately determined that although Burke was disqualified from working on the defamation case, it would be “inequitable” to impute it to the firm. It ordered that Burke be screened from any activity relating to the suit.

On appeal, the court determined that the lower court correctly found that Burke was disqualified under New Jersey professional conduct rules. The cases are substantially related because J.G.S.'s suit is “entirely premised” on his ex-wife’s statements and conduct during the child protection investigation, the appeals court said.

Even though Burke’s representation of L.M.S. was short-lived, she obtained confidential information and was responsible for the case on a day-to-day basis, it said.

However, the appeals court said just because Ziegler, Zemsky & Resnick didn’t initially know about Burke’s conflict doesn’t necessarily mean the firm is free to represent the husband, as the lower court ruled.

Under the professional conduct rules, another lawyer at the firm could represent the husband if three requirements are met, including that the matter doesn’t involve a proceeding in which Burke had “primary responsibility.”

But Burke had “primary responsibility” in the 2017 matter at Williams Law Group, regardless of the fact that she was an associate, the court said.

The case is J.G.S. v. L.M.S., 2019 BL 467508, N.J. Super. Ct. App. Div., No. A-3133-18T1, 12/6/19.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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