Herbert v. Haytaian
292 N.J. Super. 426, 678 A.2d 1183 (1996)
Rule of Law:
An attorney may be disqualified from representing a client if an attorney-client relationship previously existed with an adverse party in a substantially related matter, or if the representation creates an appearance of impropriety, even if no formal retention agreement or fee payment occurred.
Facts:
- In January 1993, Garabed Haytaian, then Speaker of the New Jersey General Assembly and Vice-Chairman of the Legislative Services Commission, received an anonymous letter alleging sexual harassment and a hostile work environment in the bi-partisan State Office of Legislative Services (OLS).
- Haytaian directed Barbara S. Hutcheon, Chief Counsel for the New Jersey Assembly Majority Office, to retain outside counsel to investigate the allegations.
- On February 11, 1993, Hutcheon contacted attorney Neil Mullin, who agreed to conduct the investigation after agreeing that all conversations and work would be confidential and protected by attorney-client privilege.
- Hutcheon disclosed confidential information to Mullin regarding Haytaian's concerns, the specifics of the allegations, proposed strategies, and the legal obligations of Haytaian and the Committee.
- Mullin sent a 'PERSONAL AND CONFIDENTIAL' letter to Haytaian on March 3, 1993, confirming his retention and outlining his investigative plan, emphasizing that his notes and report would be attorney work product and privileged.
- The Legislative Services Commission later decided that special counsel was not needed, and Hutcheon informed Mullin on March 11, 1993, asking him to return the documents previously sent.
- From July 1994 to October 1995, Beth Herbert, an employee in the Assembly Majority Office, alleged that Garabed Haytaian subjected her to severe and pervasive sexual harassment, creating a hostile and offensive working environment.
Procedural Posture:
- In January 1996, Beth Herbert (plaintiff), represented by the Mullin firm, filed a civil action against Garabed Haytaian and the State of New Jersey (defendants), alleging sexual harassment and a hostile work environment.
- Defendants Garabed Haytaian and the State of New Jersey filed a motion seeking to disqualify the Mullin firm from representing Herbert.
- The trial judge, Judge Ferentz, found an appearance of impropriety and entered an order disqualifying Mullin and his law firm.
- Plaintiff Beth Herbert filed a motion for leave to appeal the disqualification order to the Superior Court of New Jersey, Appellate Division.
- The Superior Court of New Jersey, Appellate Division, granted plaintiff's motion for leave to appeal.
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Issue:
Does an attorney's prior preliminary consultation with a state entity regarding a sexual harassment investigation create an attorney-client relationship, and if so, does the attorney's subsequent representation of a plaintiff suing that state entity and its former official for sexual harassment constitute a conflict of interest or an appearance of impropriety requiring disqualification?
Opinions:
Majority - Humphreys, J.A.D.
Yes, an attorney's prior preliminary consultation with a state entity regarding a sexual harassment investigation does create an attorney-client relationship, and the attorney's subsequent representation of a plaintiff suing that state entity and its former official for sexual harassment constitutes both an actual conflict of interest and an appearance of impropriety, requiring disqualification. The court found that an attorney-client relationship was clearly established between Mullin and the State of New Jersey (representing Haytaian and the Commission). This relationship arose from Mullin being consulted by Hutcheon to undertake an investigation, his agreement to do so, and the subsequent confidential conversations during which he received information and provided advice, despite not being formally retained or paid. The court cited precedent stating that an attorney-client relationship may be implied from preliminary consultations where a person seeks advice within an attorney's competence, and the attorney agrees to give it. Under RPC 1.9, Mullin cannot represent a party in a substantially related matter where the new party's interests are materially adverse to a former client, nor can he use information to the former client's disadvantage. The court determined that Herbert's current sexual harassment lawsuit against Haytaian and the State was substantially related to Mullin's prior consultation regarding sexual harassment in a state office, as information from the prior consultation (e.g., about anti-harassment policies, State's response strategies, or 'upper management' involvement) could significantly assist Herbert in establishing the State's liability. Furthermore, Mullin breached his duty of confidentiality by admitting he disclosed information from the anonymous letter to Herbert to help her defend against the disqualification motion, demonstrating a preference for his current client's interests over his former client's. The court also concluded that an appearance of impropriety existed under RPC 1.7(c)(2) and RPC 1.9(b), as an 'ordinary knowledgeable citizen' would perceive a substantial risk of disservice given Mullin's prior role investigating sexual harassment for the State under Haytaian's oversight and his subsequent representation of a plaintiff alleging harassment against Haytaian and the State. New Jersey law strictly construes these rules and resolves any doubt in favor of disqualification to uphold the highest ethical standards of the legal profession.
Analysis:
This case reinforces the broad scope of the attorney-client relationship, establishing that it can arise from preliminary consultations, even without formal retention or fee payment. It demonstrates the strict application of conflict of interest rules (RPC 1.9) and the appearance of impropriety doctrine (RPC 1.7(c)(2)) in New Jersey, particularly when a lawyer 'side-switches' to represent an adverse party in a substantially related matter. The decision has significant implications for attorneys, highlighting the stringent duty to protect former client confidences and the importance of avoiding even the perception of conflict, especially in sensitive areas like sexual harassment investigations for public entities. Future cases will likely cite this case to support disqualification motions where an attorney has had any prior meaningful contact with an adverse party on a related subject matter, regardless of the formality of the initial engagement.
