The procedure relevant to an application to disqualify counsel under N.J. R. Prof. Conduct 1.9(a) is clear: a motion for disqualification calls for a court to balance competing interests, weighing the need to maintain the highest standards of the profession against a client's right freely to choose his counsel. In that balance, courts must consider that a person's right to retain counsel of his or her choice is limited in that there is no right to demand to be represented by an attorney disqualified because of an ethical requirement. In the process, the initial burden of production--that the lawyers for whom disqualification is sought formerly represented their present adverse party and that the present litigation is materially adverse to the former client--must be borne by the party seeking disqualification.
The law firm had discontinued representing the city and, subsequently, a number of taxpayers retained it to appeal the real estate tax assessments imposed by the city. Asserting that the law firm was privy to the city's confidences and that the law firm's representation of individual taxpayers was substantially related to the law firm's prior representation of the city, the city moved to disqualify the law firm. The New Jersey Tax Court granted the city's motion, and the Appellate Division affirmed, finding that the law firm's representation of individual taxpayers in real estate tax appeals involved substantially related matters in which the taxpayers' interests were materially adverse to the city's interests.
Should the law firm be disqualified?
The court found error, concluding that disqualification of the law firm was unwarranted because, during its representation of the city in 2006-2007, the law firm did not receive confidential information from the city which could be used against it in the prosecution of the 2009 tax appeals adverse to the city, and the facts relevant to the law firm’s prior representation of the city were not relevant and material to its representation of the taxpayers in the tax appeals.