## Facts

- Plaintiffs Shelly Martin, Karla Mayfield, and Donna Davis sued AtlantiCare (including AtlantiCare Regional Medical Center) and individual defendants, alleging discrimination and retaliation based on race and ethnicity.
- Martin also asserted wage-and-hour claims, including overtime claims under the Fair Labor Standards Act (FLSA) and New Jersey Wage and Hour Law, and sought to proceed on a collective-action basis for the overtime claims.
- The case was filed in New Jersey state court and removed to the United States District Court for the District of New Jersey.
- Plaintiffs were represented by Kevin Costello and the firm Costello & Mains, P.C.
- Defendants were represented by Morgan, Lewis & Bockius LLP, including attorneys Richard Rosenblatt, Lisa Grosskruetz, and Prashanth Jayachandran.
- While at Morgan Lewis, Grosskruetz performed extensive work on the defense of this case: she billed approximately 108.2 hours, substantially more than the other defense attorneys during the same period, and her work included legal research, document preparation, communications with opposing counsel, and witness-related work.
- Grosskruetz left Morgan Lewis on March 4, 2011, and began working for Costello & Mains on March 7, 2011, while this litigation was still pending.
- Defendants learned of Grosskruetz’s move after noticing her name on plaintiffs’ counsel’s letterhead and moved to disqualify Costello & Mains based on the conflict created by the side-switching attorney.
- Grosskruetz left Costello & Mains on the same day the motion to disqualify was filed.

## Issues

1. Whether Costello & Mains should be disqualified because it employed a side-switching attorney who previously performed substantial defense work for AtlantiCare in the same case.
2. Whether the conflict arising from Grosskruetz’s prior work for AtlantiCare is imputed to Costello & Mains under applicable New Jersey conflict rules applied by the District of New Jersey.
3. Whether the claimed absence of information-sharing, screening efforts, or Grosskruetz’s departure from Costello & Mains after the motion was filed avoids disqualification.

## Decision

- The court granted defendants’ motion to disqualify plaintiffs’ counsel.
- The court found that Grosskruetz performed substantial, substantive work for defendants in this very matter and necessarily had access to defendants’ confidential information and strategy.
- The court concluded that Grosskruetz’s conflict was imputed to Costello & Mains when she joined that firm during the litigation.
- The court rejected arguments that the conflict was cured because Grosskruetz left Costello & Mains after the motion was filed or because the firm asserted she did not share confidences.
- The court ordered Costello & Mains to withdraw and directed plaintiffs to obtain new counsel by a set deadline.

## Legal Principles

- A lawyer who represented a client in a matter may not later represent an adverse party in the same matter (or a substantially related matter) when confidential information from the former representation would be material.
- When a lawyer with a disqualifying conflict joins a firm that is handling the adverse side of the same matter, the conflict is generally imputed to the entire firm to protect former-client confidences and the fairness of the proceeding.
- In a side-switching situation involving the same case, a strong presumption arises that the lawyer obtained confidential information from the former client; disqualification can be ordered without proof that the lawyer actually used or disclosed that information.
- Screening or other protective steps taken only after the move (or only after the conflict is discovered) may be inadequate to prevent firmwide disqualification in the same-matter side-switching context.
- A side-switching lawyer’s later departure from the adverse firm, after joining it during the case, does not by itself remove the risk that confidential information could have been shared and does not automatically prevent disqualification.

## Conclusion

In *Martin v. Atlanticare*, the District of New Jersey disqualified Costello & Mains because it employed a lawyer who had recently done extensive defense work for AtlantiCare in the same pending litigation; the court treated the resulting conflict as imputed to the entire firm and held that after-the-fact measures, including the lawyer’s departure once the motion was filed, did not eliminate the risk to defendants’ confidential information or the fairness of the case.


Martin v. Atlanticare, 2011 WL 5080255 (2011)