Risk Update

Law Firm Disqualification Denied — Appeals Court Rules Details of “Prior Representation” Matters

Appeals Court Vacates Disqualification of Lawyer Where Prior Representation Was Unauthorized” —

  • “A lawyer’s past representation of a manufacturing company in litigation is not grounds to disqualify him from representing a former member of the board of directors who is being sued by the company, a New Jersey appeals court has ruled.”
  • “The attorney, Paul Bucco, was disqualified for representing Vincent Tomei, a director of H&H Manufacturing Co., in a suit by the company, based on his prior representation of both H&H and Tomei in a related case. But the appeals court said the trial judge erred in finding that Bucco represented H&H in the earlier case.”
  • “Although Bucco and his firm entered an appearance on behalf of H&H in the earlier case, they were not authorized to represent the company, and therefore the representation cannot serve as the basis for disqualification, Appellate Division Judges Garry Rothstadt and Arnold Natali Jr. ruled.”
  • “Bucco represents Vincent Tomei in the Camden County case, but H&H moved for his disqualification, claiming the attorney is conflicted out based on his prior representation of H&H and because he is a fact witness in the case. The trial judge ruled for H&H, finding the two matters substantially related.”
  • “On appeal, Rothstadt and Natali said that Vincent Tomei lacked standing to file the Delaware County suit against H&H because its board of directors never approved his filing of the suit. In addition, no attorney-client relationship formed between Bucco and H&H in the prior case, based on the Delaware County court’s findings.”
  • “‘Simply put, Paul Bucco and Davis Bucco did not actually ‘represent’ H&H, they merely alleged they did, and whatever consequences may flow from that inaccurate characterization, such self-serving pronouncements cannot serve as the sole basis for the creation of an attorney-client relationship,’ the appeals court said.”