Attorney Disqualified From Representing Party in Same Matter Where Attorney Previously Represented Adverse Party

Twenty-First Century Rail Corp. v. New Jersey Transit Corp., 210 N.J. 264 (2012).  This case involved an effort to disqualify counsel in a construction case for a conflict of interest under Rule of Professional Conduct 1.9 (“RPC 1.9”).  The Law Division denied disqualification.  In a published opinion, reported at 419 N.J. Super. 343 (App. Div. 2011), and discussed here, the Appellate Division affirmed.  The Supreme Court granted leave to appeal and unanimously reversed, in an opinion by Justice Hoens.

The lower courts had concentrated primarily on the two-part test stated in City of Atlantic City v. Trupos, 201 N.J. 447 (2010).  That test seeks to determine whether cases are “substantially related” for purposes of RPC 1.9, which forbids an attorney to represent, in “substantially related” matters, two different parties whose interests are “materially adverse.”

The Supreme Court, however, found no need to engage in that analysis.  Instead, because the Court determined that the two successive matters that gave rise to the disqualification dispute were the same– they were part of the same large project but, more importantly, “the same discrete phase of that overall project, the same contracts, the same parties and, based upon our evaluation of the documents that the parties have provided concerning the matters on which [one of the parties] consulted the lawyers in the first instance, the same dispute”– disqualification was mandated under RPC 1.9 without more.  The Appellate Division had recognized that same “sameness” but erroneously found, despite that, that disqualification was not required because the two-part Trupos analysis did not call for disqualification.