Attorney Side-Switching After City of Atlantic City v. Trupos

Twenty-First Century Rail Corp. v. New Jersey Transit Corp., 419 N.J. Super. 343 (App. Div. 2011).  Rule of Professional Conduct 1.9(a) states that “[a] lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of the former client.”  City of Atlantic City v. Trupos, 201 N.J. 447 (2010), which Judge Harris’s opinion in Twenty-First Century rightly labels a “watershed” opinion under RPC 1.9(a), focused carefully on the issue of when matters are “substantially related.”  Twenty-First Century illuminated the Trupos standards and affirmed a trial court decision not to disqualify a law firm in a construction case involving New Jersey Transit’s light rail system.

Decisions under RPC 1.9(a) are fact-intensive, and Judge Harris ably set forth the underlying facts in depth.  Thus, there is no need to do that here.  In essence, though, “the … [p]roject is the same project for both of [the “side-switching” law firm’s] representations, the parties are the same, the contracts are the same, and the existence of delays [in the construction] is the same.” 

Despite all that, the two representations were not “substantially related” under RPC 1.9(a) so as to require disqualification of the law firm.   Trupos honed the definition of “substantially related” to provide for disqualification only where “(1) the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the client, or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation.”  After undertaking the fact-sensitive analysis mandated by Trupos, the Appellate Division upheld the decision of the Law Division that disqualification was not required.