Wednesday, April 14, 2021

The Taint Remains

The New Jersey Appellate Division affirmed a disqualification where the prospective client had consulted with the lawyer many years ago

The parties never married, but shared a long-term, romantic relationship from approximately June 2000 to March 2013. During this time, the parties purchased a home, cohabitated, and raised their daughter together. Defendant did not want to marry but promised to financially support plaintiff, who quit her job to raise their daughter.

During the parties' relationship, defendant allegedly made threats to leave plaintiff. For this reason, in 2005, plaintiff sought legal advice from attorney Vincent Celli of Celli, Schlossberg, De Meo, & Guisti, P.C. (the Celli firm) about her right to financial support from defendant if the parties ever ended their relationship without marrying. Plaintiff expressed concerns about defendant threatening to leave her, resisting marriage, and potentially misrepresenting his income and assets. Plaintiff also disclosed to Mr. Celli the parties' financial arrangements, lifestyles, assets, and income. Specifically, plaintiff disclosed the parties' acquisition of their home and handling of finances. Given this information, Mr. Celli explained to plaintiff the concept of palimony and her right to support, estimated plaintiff's potential relief, and advised plaintiff not to marry defendant; if the parties married and divorced, a court would exclude the pre-marriage years in calculating plaintiff's relief.

She retained other counsel to file the palimony case, which resulted in a settlement agreement.

Thereafter, defendant retained the services of Mr. Celli. On September 3, 2019, Mr. Celli filed a motion for defendant to vacate the final judgement pursuant to Rule 4:50-1, re-open discovery, and set aside the settlement agreement. Defendant alleged he discovered, after entry of the final judgment, that plaintiff intentionally misrepresented and concealed her income and assets during settlement negotiations.

Disqualification was granted

the court found a disqualifying conflict based upon plaintiff disclosing to Mr. Celli "significantly harmful" information, specifically about the parties' finances and defendant's continued promises of support, "substantially related" to the issues involved in Mr. Celli's representation of defendant in challenging the final judgment. The court gave particular weight to the 2013 email wherein plaintiff confirmed she relied upon Mr. Celli's advice in her relationship with defendant.

The court here agreed

Defendant contends the motion court erroneously disqualified the Celli firm because plaintiff failed to provide the information disclosed to Mr. Celli with specificity and any disclosed information would be discoverable. We disagree.

The court explains the principles of obligations to a prospective client

Applying these principles, we conclude the motion court correctly determined that plaintiff disclosed to Mr. Celli significantly harmful information substantially related to this litigation. Plaintiff disclosed to Mr. Celli her views and concerns about the parties' relationship, financial arrangements, lifestyles, assets, and income. This information was, and remains, substantially related to this litigation; the disclosed information was material to plaintiff's claim for palimony, the same issue at the heart of this litigation. Palimony centers on promises of continued support and the relationship between the parties, Levine v. Konvitz, 383 N.J. Super. 1, 3 (App. Div. 2006), and plaintiff disclosed such information to Mr. Celli. Though disclosed nine years before the plaintiff's alleged misrepresentation, the information is nonetheless substantially related, covering the parties' finances for the first four years of their relationship that would form the basis for their settlement agreement.

Moreover, the disclosed information could be used against plaintiff in this litigation. Specifically, plaintiff disclosed information and personal concerns about the parties' relationship and financial arrangements. This information informed Mr. Celli's advice and provides, at least in part, insight into plaintiff's motivations in her relationship with defendant, relevant for years after the disclosure. Defendant, who would not otherwise have access to plaintiff's personal thoughts, could use this information against plaintiff in challenging her palimony award or in future settlement negotiations. We find no basis to disturb the motion court's determination that the disclosed information is, therefore substantially related to this litigation and significantly harmful to plaintiff, creating a disqualifying conflict.

(Mike Frisch(

https://lawprofessors.typepad.com/legal_profession/2021/04/the-new-jersey-appellate-division-during-the-parties-relationship-defendant-allegedly-made-threats-to-leave-plaintiff-for.html

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