Escobar v. Mazie, 460 N.J. Super. 520 (App. Div. 2019). This appeal arose out of an order disqualifying every attorney at the law firm of Mazie Slater Katz & Freeman, LLC except Adam Slater from representing the firm or one of its principals, David Mazie, in defense of this malpractice action. Slater certified that he had had no involvement in the underlying matter. Plaintiff successfully argued in the Law Division that Rule of Professional Conduct 3.7 precluded Mazie and most others at the firm from participating in the defense of depositions because those attorneys would be necessary witnesses at trial, and that there was no hardship since Mazie and the firm already had insurance counsel defending them.
The Appellate Division, on a motion for leave to appeal that the Supreme Court remanded to the appellate panel, reversed in an opinion by Judge Accurso that applied de novo review. The panel noted that attorney disqualification motions are “viewed skeptically in light of their potential abuse to secure tactical advantage.”
RPC 3.7(a) prescribes circumstances in which “[a] lawyer shall not act as advocate at trial in which the lawyer is likely to be a necessary witness.” Relying on Main Event Productions v. Lacy, 220 F. Supp. 2d 353 (D.N.J. 2002), the Law Division stated that depositions are “close enough to the trial proceeding … that it gives rise to the same underlying purpose of the rule of avoiding jury confusion and sorting out what role the lawyer/witness is playing to warrant [disqualification].”
But Judge Accurso pointed out that Main Event actually supported the opposite result. That case stated that “RPC 3.7(a) is a prohibition against acting as an ‘advocate at a trial,'” and had in fact reversed a magistrate judge’s decision “disqualifying a lawyer from participating in pre-trial matters.” That accorded with the plain language of RPC 3.7 quoted above. Thus, it was premature to disqualify any Mazie Slater lawyers at this point in the case. The fact that insurance counsel were also involved did not change things. Judge Accurso observed that “[l]itigants are routinely represented by more than one lawyer in actions in our courts, often when insurance counsel is also representing a defendant as here.”
Judge Accurso went on to offer some guidance in the event that a motion to disqualify were made later in the case. Among other things, she said that Mazie himself, as a named defendant, had the same right as any other person to represent himself, even if he were deemed a “necessary witness.” The firm, too, was to be “treated as other entities appearing in our courts,” and therefore had to appear by counsel.
Finally, Judge Accurso rejected defendants’ argument that RPC 3.7(a)(2), which creates an exception for attorney testimony relating to “the nature and value of legal services” meant that Mazie Slater lawyers could not be disqualified. She noted that that Rule applied only to “the nature and value of legal services rendered in the case” (emphasis by Judge Accurso). Since this malpractice case related to services rendered in the underlying action where the firm represented plaintiff, RPC 3.7(a)(2) was “plainly not applicable.”