BARKER, GELFAND JAMES NOTICE OF MOTION TO DISQUALIFY PLAINTIFFS'...

IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY - CAMDEN VICINAGE

THOMAS J. HUNT BARBARA HUNT

Plaintiff,

VS.

BOROUGH OF WILDWOOD CREST; Mayor CARL GROON; Chief of Police THOMAS DePAUL; Captain DAVID MAYER; Doctor GARY M GLASS

Civil Action 12-cv-6887 (JEI/ AMD)

Individually and in their official capacities, Jointly, Severally and in the Alternative

Defendants

NOTICE OF MOTION TO DISQUALIFY PLAINTIFFS' COUNSEL

On Behalf of the Defendants, Mayor Carl Groan, Chief of Police Thomas DePaul,

And Captain David Mayer Jointly Severally, and in the Alternative

Todd J. Gelfand, Esquire Attorney ID TG/3528

BARKER, GELFAND & JAMES A Professional Corporation

The Laurelwood Corporate Center 1101 Laurel Oak Road - Suite 110

Voorhees, New Jersey 08043 (856) 874-0555

(856) 344-5193 - Telefax (609) 601-8577 - Alternate Telefax

[email protected]

Case 1:12-cv-06887-JEI-AMD Document 67 Filed 05/20/15 Page 1 of 2 PageID: 2320

PLEASE TAKE NOTICE that the undersigned, on behalf of the

Defendants, Mayor Carl Groon, Chief of Police Thomas DePaul, And

Captain David Mayer, Jointly Severally, and in the Alternative,

shall move before the Honorable Magistrate Judge Ann Marie Donio,

United States District Court, Camden, New Jersey, on a date and

time to be set by the Court for an Order granting Defendants'

motion to disqualify Plaintiffs' counsel.

PLEASE TAKE NOTICE that the undersigned offers the attached

Brief and Exhibits in support of the Motion to Disqualify.


2 By: Todd J. Gel an Esquire

Dated: May 20, 2015

Notice of Motion to Disqualify Plaintiffs' Counsel Page 2 of 2

Hunt v Wildwood Crest, et al.

BARKER, GELFAND & JAMES • A PROFESSIONAL CORPORATION • VOORHEES, NEW JERSEY 08043


IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY - CAMDEN VICINAGE

THOMAS J. HUNT BARBARA HUNT

Plaintiff,

VS.

Civil Action 12-cv-6887 (JEI/ AMD)

BOROUGH OF WILDWOOD CREST; Mayor CARL GROON; Chief of Police THOMAS DePAUL; Captain DAVID MAYER; Doctor GARY M GLASS

Individually and in their official capacities, Jointly, Severally and in the Alternative

Defendants

BRIEF IN SUPPORT OF MOTION TO DISQUALIFY PLAINTIFFS' COUNSEL

On Behalf of the Defendants, Mayor Carl Groon, Chief of Police Thomas DePaul,

And Captain David Mayer Jointly Severally, and in the Alternative


The Laurelwood Corporate Center 1101 Laurel Oak Road - Suite 110

Voorhees, New Jersey 08043 (856) 874-0555

(856) 344-5193 - Telefax (609) 601-8577 - Alternate Telefax

[email protected] On the Brief: Todd J. Gelfand, Esquire Atty ID TG-3528

Case 1:12-cv-06887-JEI-AMD Document 67-1 Filed 05/20/15 Page 1 of 24 PageID: 2322

TABLE OF CONTENTS

I. PREAMBLE 1

II. STATEMENT OF RELEVANT FACTS 6

III. LEGAL ARGUMENT 12

IV. CONCLUSION 20

Table of Contents/ Table of Citations Brief in Support of Motion to Disqualify Plaintiff's Counsel Hunt v Wildwood Crest, et al.

Page 1 of 3



TABLE OF CITATIONS

Century Indemnity Company v Congoleum Corporation, 426 F.3d 675 (3d Cir. 2005) 13 Citing, Local Rule 103.1 (DNJ) 13

Dewey v R.J. Reynolds Tobacco Company, 109 NJ 201 (1988) 13

Citing, Reardon v Marlayne, Inc., 83 NJ 460 (1980) 14

Haggerty v Red Bank Borough Zoning Board of Adjustment, 385 NJ Super 501 (App. Div. 2006) 17

In Re: Corn Derivatives Antitrust Litigation, 748 F.2d 157 (3d Cir. 1984) 19

Kaleta v Clausi,

2003 US Dist. LEXIS 60879 (MD Pa. April 29, 2013) 18

Lamb v Pralex Corporation, 333 F.Supp.2d 361 (DVI July 12, 2004) 14

Citing, Powell v Alabama, 287 US 45 (1932) 14

Paff v Cape May County Prosecutor's Office, CPM-L-265-14 12

Powell v Alabama, 287 US 45 (1932) 14

Reardon v Marlayne, Inc., 83 NJ 460 (1980) 14

Rohn and Haas Company v American Cyanamid Company, 187 F.Supp.2d 221 (DNJ 2001) 13

Citing, Dewey v R.J. Reynolds Tobacco Company, 109 NJ 201 (1988) 13

Table of Contents/ Table of Citations Brief in Support of Motion to Disqualify Plaintiff's Counsel Hunt v Wildwood Crest, et al.

Page 2 of 3



State v Davis, 366 NJ Super 30 (App. Div. 2004) 17

Quoting, Administrative Determinations In Response To The Report and Recommendation of The Supreme Court Commission On The Rules Of Professional Conduct, Commission Comment, RPC 17 17

State Ex Rel S.G., 175 NJ 132 (2003) 14

Table of Contents/ Table of Citations Brief in Support of Motion to Disqualify Plaintiffs Counsel Hunt v Wildwood Crest, et al.

Page 3 of 3

BARKER, GELFAND &JAMES • A PROFESSIONAL CORPORATION • VOORHEES, N EW JERSEY 08043


I. PREAMBLE

The instant brief is in support of the Defendants' motion to

disqualify Plaintiffs' counsel, Michelle J. Douglas, Esquire, from

representing the Plaintiffs, Thomas Hunt and Barbara Hunt, in the

instant matter. The problem stems from the fact that former

Wildwood Crest Police Lieutenant Michael Hawthorne was previously

a defendant in Plaintiff Hunt's lawsuit and one of the primary

alleged wrongdoers. He was also a member of the litigation control

group. Hawthorne has since claimed that the entire matter was an

illegal conspiracy against Plaintiff Hunt which Hawthorne

participated in. In connection with that about face, Hawthorne was

dropped from the suit as a defendant and is now represented by the

same attorney who represents Plaintiff Hunt here, Ms. Douglass.

Hawthorne was represented as a Defendant in the Hunt matter

by a former attorney of the undersigned's firm. Hunt was also part

of the litigation control group not only for the Hunt civil

litigation, but Hawthorne was also a member of the litigation

control group actively involved in assisting Wildwood Crest

special counsel Attorney William G. Blaney in the administrative

disciplinary prosecution of charges against Plaintiff Hunt upon

which Hunt was terminated. Hawthorne actively assisted Blaney on

a day to day basis in the prosecution of those charges. Plaintiff

Hunt was terminated from employment with Wildwood Crest as a result

Brief in Support of Motion to Disqualify Plaintiffs Counsel Hunt v Wildwood Crest, et al.

Page 1 of 20



of that administrative case and his primary contention in this

civil lawsuit is that his termination was an orchestrated, illegal

conspiracy motivated by prohibited retaliation and/or

discrimination.

After years of this related civil and administrative

litigation with a tortured procedural history, a couple of things

happened which led to this tangled web of conflict, all of Lt.

Hawthorne's doing. Lt. Michael Hawthorne separated from service

with the Wildwood Crest Police department and was dropped as a

Defendant by Plaintiff's Hunt. Michael Hawthorne now has

disclosed, through his attorney Michelle Douglass, that Hawthorne

is represented by Ms. Douglass and Ms. Douglass will be suing

Wildwood Crest (cause of action or nature of action to be filed

has not been specifically disclosed) on his behalf.

The matter gets further complicated into a tangled web in

that Hawthorne's separation from service followed Hawthorne's

accusations against Defendants DePaul and Mayer, which allegations

were ultimately investigated by the Office of the County Prosecutor

and subject to an investigation by the governing body of Wildwood

Crest through an appointed investigator who is a retired New Jersey

State Police Major, Major Fallon. Through that investigation, Lt.

Hawthorne alleged in part that the investigation of Sgt. Hunt, the

Plaintiff here, was some sort of witch-hunt frame job by which


Page 2 of 20



Hawthorne participated in bringing false charges against Hunt at

the behest of Defendants DePaul and Mayer.

Lt. Hawthorne performed an "off the grid" investigation of

DePaul and Mayer prior to bringing his allegations against them,

including taking his "evidence" from the police department's

confidential records to his home with no authorization for an

alleged investigation which was unauthorized and not reported

anywhere within the Wildwood Crest Police records or anywhere else.

Lt. Hawthorne also is or was widely recognized within the

department as a department "go-to IT guy" which assisted him in

his access to whatever electronic information he thought he needed

for this "off the grid" investigation of Defendants Mayer and

DePaul.

Despite knowing that Lt. Hawthorne was a defendant in Hunt's

lawsuit previously and also one of the three command staff members

of the police department during the time of the events Plaintiff

Hunt alleges in his lawsuit and thus in the City's litigation, Ms.

Douglass undertook to represent Lt. Hawthorne and for what appears

for sure to be a substantially related matter. Ms. Douglass

appeared and alleged that she represented Lt. Hawthorne in a

related OPRA matter in Superior Court by which a member of the

public sought access to the investigation reports relating to the

investigation stemming from Lt. Hawthorne's allegations of the

Brief in Support of Motion to Disqualify Plaintiff's Counsel Page 3 of 20 Hunt v Wildwood Crest, et al.



conspiracy to terminate Hunt which he had taken part in, among

other things. Ms. Douglass has also stated, however, that she will

filing some sort of lawsuit on behalf of Lt. Hawthorne against the

Borough of Wildwood Crest, despite the fact that Lt. Hawthorne

ultimately voluntarily left the employ Wildwood Crest by written

agreement. That written agreement followed the conclusion of the

County Prosecutor's office's investigation which resulted in

certain "pre-Brady" letters by which the County Prosecutor advised

Wildwood Crest that Lt. Hawthorne had been found to be untruthful

in these matters to an extent that the County Prosecutor felt his

office would have a Brady obligation to disclose to any criminal

defendants in a case involving Lt. Hawthorne that Lt. Hawthorne

has a credibility problem based on this investigation.

In summary, a former Defendant, Lt. Michael Hawthorne, was a

member of Wildwood Crests litigation control group and party to

confidential attorney client communications as an adverse party to

Plaintiff Thomas Hunt throughout the litigation until recently. Lt

Hawthorne was one of the three police administrators who directed

the investigation and prosecution of administrative disciplinary

charges against Plaintiff Sgt. Hunt. At some point in time, he

began a secret off the grid investigation of Defendants DePaul and

Mayer, decided he no longer stood by the charges against Hunt and

alleged that those charges resulted from an illegal conspiracy




which he was necessarily a part of. In the course of turning on

DePaul and Mayer, Lt. Hawthorne performed an off the grid

investigation which included taking confidential police

information from the department for his own personal, unauthorized

use. Lt. Hawthorne also found himself no longer a defendant in

Plaintiff Hunt's lawsuit and represented in one and soon to be two

related matters by the same attorney who previously sued him on

Sgt. Hunt's behalf.

The Borough of Wildwood Crest has every reason to believe

that its confidences shared between its attorneys and Lt.

Hawthorne, while Hawthorne was a defendant in the Hunt matter and

member of the litigation control group, have thus been discussed

with Hawthorne's new attorney who is representing Hawthorne on

related matters, especially given Hawthorne's documented history

of helping himself to whatever confidential police information he

feels entitled to take with him out of the department for his own

off the grid purposes without authorization.

Wildwood Crest and Defendants DePaul and Mayer are thus

alarmed and do not feel they can appropriately defend themselves

in this Hunt case while Hunt continues to be represented by Ms.

Douglass given the fact that their former trusted member of their

litigation control group who was privy to all confidential

communications with counsel both as to this suit and the underlying

Brief in Support of Motion to Disqualify Plaintiffs Counsel Page 5 of 20 Hunt v Wildwood Crest, et al.



administrative termination is now represented by Sgt. Hunt's

attorney. We thus assert that this creates a conflict which

requires Ms. Douglass' disqualification from representing Sgt.

Hunt in this matter. By forming a confidential attorney client

relationship with the former member of the Borough's litigation

control group and having access to confidential information

directly relating to the Hunt litigation, Ms. Douglass has put

herself in a position where she should no longer be permitted to

continue to represent plaintiffs in this matter.

II. STATEMENT OF RELEVANT FACTS

1. On or about May 12, 2012, Plaintiff filed a notice of tort

claim with the Borough of Wildwood Crest. (See, Exhibit "1"

Notice of Tort Claim).

2. The following is excerpt from the notice of tort claim,

specifically, question #6:

Indentify all public entities or public employees fby name and position] alleged to have caused the injury or property damage, and specify as to each public entity or employee the exact nature of the act or omission allege to have caused the injury or property damage.

The Borough of Wildwood Crest; Police Chief DePaul; Captain Mayer; Lt. Hawthorne; Mayor Groon - for violation of civil rights and other violations that are detailed in the attached Addendum. (See, Exhibit "1" Notice of Tort Claim).

3. On or about May 11, 2012, Plaintiffs filed a complaint in the


BARKER, GELFAND & JAMES • A PROFESSIONAL CORPORATION • VOORHEES, NE\x/JERsEY 08043


Superior Court of New Jersey, Cape May County. (See, Exhibit

"2" State Court Complaint).

4. On or about January 2, 2013, Plaintiffs' Motion to voluntarily

dismiss the New Jersey Superior Court Complaint was granted.

5. On or about November 6, 2012, Plaintiffs filed the instant

matter in the United States District Court District of New

Jersey. (See, ECF #1 Complaint).

6. The substantive allegations in the dismissed New Jersey

Superior Court Complaint and the Complaint filed in the

District of New Jersey are identical, including the

allegations regarding the wrongful conduct of Lt. Hawthorne.

(See, Exhibit "2" State Court Complaint; and ECF #1

Complaint).

7. Plaintiffs subsequently amended their Complaint on three

occasions; however, the allegations regarding Lt. Hawthorne's

wrongful conduct remain the same, with some additional detail

having been added in the course of the amendments. (See, ECF

#1, #35, #52, #59 Initial Complaint and various Amended

Complaints).

8. The most recent Amended Complaint alleges that "Hawthorne

(who was considered to be aligned with management and Chief

DePaul and in the litigation control group for the Borough as

opposed to the union members) intercepted the December 7,


Page 7 of 20



2009 confidential letter from Schlager. He [Hawthorne]

unethically and inappropriately placed the letter on the desk

of Kevin Yecco." (See, ECF #59 Amended Complaint, para. 25).

9. The most recent Amended Complaint alleges that "[t]he

unethical and inappropriate conduct of Hawthorne and DePaul

in providing a legal document (not intended for his eyes nor,

for certain, the eyes of the Borough's management team),

directly to the management team, including Defendant DePaul

and Mayer, was never sanctioned nor the subject of any

investigation." (See, ECF #59 Amended Complaint, para. 28).

10. The most recent Amended Complaint alleges that "Hunt had gone

to Dispatch and pulled the video from December 7, 2009 which

showed Hawthorne with the letter in hand. Hawthorne lied to

Hunt when he denied giving the letter to management." (See,

ECF #59 Amended Complaint, para. 29).


later admitted that he did get the letter." (See, ECF #59

Amended Complaint, para. 30).

12. The most recent Amended Complaint alleges that "[o]n or about

January 29, 2010, Hunt was in the process of checking roll

call in the squad room, while working dayshift, when Hawthorne

entered the room. Hawthorne walked over to the sign in sheet

where Hunt was sitting and said to Hunt, 'It's a shame that

Brief in Support of Motion to Disqualify Plaintiff's Counsel Hunt v Wildwood Crest, et al.

Page 8 of 20



we have to hate each other.' Hunt replied, 'It's a shame some

people have to think that way.' Hawthorne then threatened

Hunt by stating, 'Last man standing buddy.' Feeling

threatened by Hawthorne's comments, Hunt prepared a

memorandum documenting the conversation and submitted it to

Captain Bradley (copy to Yecco)." (See, ECF #59 Amended

Complaint, para. 43).

13. The most recent Amended Complaint alleges that Hawthorne was

in charge of the Detective Bureau, bore a "grudge" against

Plaintiff and, with the encouragement of the Borough of

Wildwood Crest, Hawthorne monitored Plaintiff, reported on

Plaintiff's activities and retaliated against Plaintiff.

(See, ECF #59 Amended Complaint, para. 58-59).

14. The most recent Amended Complaint alleges that "Gorski and

Hawthorne, apparently concerned that the union contract

committee would not negotiate salary and benefits to their

liking, concocted a story that Hunt had intimidated Gorski

into an attempt to sign the Petition. Hawthorne filed an

official report even though he had no first-hand knowledge of

the telephone conversation between Hunt and Gorski while off

duty and in the privacy of their respective homes." (See, ECF

#59 Amended Complaint, para. 62).

15. The most recent Amended Complaint alleges that Hawthorne




"belittled" Plaintiff during a meeting on or about February

4, 2010. (See, ECF #59 Amended Complaint, para. 68).

16. The most recent Amended Complaint alleges that on or about

January 3, 2011, Lt. Hawthorne handed Plaintiff a note

informing Plaintiff that he had not qualified for his weapon

and until he did qualify he was to either change into civilian

clothes and work administrative tasks or expend accrued time

which was an attempt to "maliciously embarrass" Plaintiff.

(See, ECF #59 Amended Complaint, para. 92, 96).


wrote a report regarding the firearms and gun incident above.

The Chief ordered Hawthorne to re-write the report and omit

critical information, then questioned Hunt about the incident

in an Internal Affairs interview. When Hunt relayed what

actually happened in his exchange with Hawthorne, the Chief

charged Hunt with untruthfulness (because Hunt relayed the

information that was ordered to be omitted in Hawthorne's

report) thereby manipulating the internal affairs

investigation process in an untruthful manner to set up Hunt

for disciplinary charges." (See, ECF #59 Amended Complaint,

para. 97).

18. The most recent Amended Complaint alleges that after

Plaintiff was terminated, he was ordered to return certain




equipment items to the Borough of Wildwood Crest Police

Department, but Plaintiff did not want to return the items

himself, as Plaintiff was "banned" from entering any private

areas of the police station, and he felt having to be at the

station under that condition was a further attempt by the

Defendants to humiliate him. (See, ECF #59 Amended Complaint,

para. 128-29).

19. The most recent Amended Complaint alleges that "Hunt, through

counsel, had a third party legal representative (paralegal)

deliver all items which were packaged and secured safely in

boxes to Defendant Hawthorne at the police department.

Hawthorne maliciously and purposefully refused to accept the

police items so that he and the Defendants could continue to

charge Hunt with manufactured disciplinary charges. Hawthorne

cowardly refused to meet the legal representative at the

police station and instead sent an underling to deliver his

message that he would arrest the legal representative

(paralegal) for delivering police issued equipment (that were

secured and packaged and which were demanded by the police

department to be returned to them) (and for which the

Defendants refused to pick up at Hunt's home or accept

delivery and receipt of same). The conduct of Hawthorne was

outrageous and reprehensible." (See, ECF #59 Amended




Complaint, para. 129).

20. The most recent Amended Complaint alleges that "[s]hortly

after the intimidation tactics of Hawthorne upon the

paralegal (threatened to have her arrested; it should be noted

that the paralegal's husband is a police officer in good

standing), Blaney called and spoke to the paralegal and

apologized for the conduct of Hawthorne. This admission

establishes that Hawthorne and Defendants collectively have

acted, at all times, despicably and in a retaliatory vengeance

against Hunt in violation of the law for which Hawthorne,

DePaul and Mayer have all sworn to uphold." (See, ECF #59

Amended Complaint, para. 131).

21. Recently, it has come to the Defendants' attention that

Plaintiff's counsel, Michel J. Douglas, Esquire, is now

currently representing Lt. Michael Hawthorne in other

matters. (See, Exhibit "3" May 8, 2015, Order in Paff v. Cape

May County Prosecutor's Office, No. CPM-L-265-14).

22. As a result of the Paff matter, certain pre-brady letters

resulting from the investigation into Lt. Hawthorne's off the

grid investigation of Defendants DePaul and Mayer were deemed

public documents.

III. LEGAL ARGUMENT

A lawyer has standing to make a motion to disqualify opposing




counsel where the lawyer believes opposing counsel has violated

the Rules of Professional Conduct. Century Indem. Co. v. Congoleum

Corp. (In re Congoleum Corp.), 426 F.3d 675, 686-87 (3d Cir. 2005).

"The District Court's local rules provide that the rules of

American Bar Association, as revised by the New Jersey Supreme

Court, apply to attorneys practicing before the court 'subject to

such modifications as may be required or permitted by federal

statute, regulation, court rule or decision of law.'" Id. at 687

citing, Local Rule 103.1 (D.N.J.).

"In the absence of a 'definitive state court decision

interpreting the rules as promulgated by the [New Jersey] Supreme

Court, the federal court will proceed to reach its own conclusions

as to the appropriate application of the rules of professional

conduct." Id. A party seeking disqualification must meet a 'heavy

burden' of proof before a court will disqualify an attorney." Rohm

and Haas Co. v. American Cyanamid Co., 187 F. Supp. 2d 221, 226-

27 (D.N.J. 2001) "New Jersey courts engage in a 'painstaking

analysis of the facts' when addressing motions for

disqualification." Id., citing, Dewey v. R.J. Reynolds Tobacco

Co., 109 N.J. 201, 205, 536 A.2d 243 (1988). However, "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." Dewey v. R.J.

Brief in Support of Motion to Disqualify Plaintiff's Counsel Hunt v Wildwood Crest, et al.

Page 13 of 20



Reynolds Tobacco Co., 109 N.J. 201, 218, 536 A.2d 243 (1988)

citing, Reardon v. Marlayne, Inc., 83 N.J. 460, 477, 416 A.2d 852

(1980)).

"The underlying principle in considering motions to

disqualify counsel is safeguarding the integrity of the court

proceedings; the purpose of granting such motions is to eliminate

the threat that the litigation will be tainted." Lamb v. Pralex

Corp., 333 F. Supp. 2d 361, 363, 46 V.I. 213 (D.V.I. July 12, 2004)

(citing, Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L.

Ed. 158 (1932)).

The most basic conflict of interest presented here is pursuant

to RPC 1.7(a) within the general rule of conflicts of interest.

Under that rule, "a lawyer ordinarily may not act as advocate

against a person the lawyer represents in some other matter, even

if it is wholly unrelated." State ex rel. S.G., 175 N.J. 132, 142

(2003); see also, RPC 1.7. In addition, the lawyer has a concurrent

conflict of interest where "there is a significant risk that the

representation of one or more clients will be materially limited

by the lawyer's responsibilities to another client, a former

client, or a third person or by a personal interest of the lawyer."

RPC 1.7(a)(2).

Given the factual background which can only be shorthand

described as "Defendant litigation control group member turned

Brief in Support of Motion to Disqualify Plaintiffs Counsel Hunt v Wildwood Crest, et at.

Page 14 of 20



Plaintiff adverse to Defendants represented by lawyer who

previously sued him and suddenly putative star witness supporting

allegations of conspiratorial retaliation against original

Plaintiff," if Ms. Douglass continues to represent Plaintiff Hunt

here, Ms. Douglass will be required, in Plaintiff Hunt's interests,

to set forth proofs that when Lt. Hawthorne participated in the

litigation control group in the prosecution of administrative

disciplinary charges against Hunt, Hawthorne was lying and playing

along with an illegal conspiracy to get Hunt fired as set forth in

the Hunt Complaint. We hope it is immediately clear that taking

this position with respect to Lt. Hawthorne's role in the Hunt

matter would negatively impact the credibility of Hawthorne's

allegations in Hawthorne's own suit against Wildwood Crest, which

Hawthorne has vowed will be brought by Ms. Douglass on his behalf.

We also assert that R.P.C. 4.2 is implicated here, in that

Plaintiff's counsel is communicating now regularly as part of a

confidential attorney client relationship with Lt. Hawthorne, whom

she knows to have been represented by counsel, my firm, in the

underlying Hunt lawsuit and about matters directly to the Hunt

lawsuit while simultaneously representing Plaintiffs Hunt.

Finally, RPC 8.4 provides that it is professional conduct for

a lawyer to "engage in conduct that is prejudicial to the

administration of justice." Lt. Hawthorne's factual position as it




relates to Plaintiff Hunt's employment case and Lt. Hawthorne's

anticipated testimony has done an absolute about face, we believe

that much is entirely undisputed. Lt. Hawthorne has also received

a benefit from Plaintiff Hunt's counsel connected to his about

face in support of Plaintiff Hunt, in that he now has

representation from Ms. Douglass not only in a directly related

OPRA matter, but he has also obtained a benefit connected to the

change in his factual position and anticipated testimony in that

he now has a lawyer who vows to bring a civil suit on his behalf,

presumably a civil suit which Lt. Hawthorne believes he might

ultimately collect a judgment on.

Some aspect of the benefits which Lt. Hawthorne has come to

following and seemingly as a consequence of Hawthorne's perplexing

about face reversal on the issue of whether or not Sgt. Hunt was

terminated on legitimate disciplinary infractions, particularly

that he now has Ms. Douglass filing a lawsuit on his behalf, might

be fairly characterized as a "contingent" financial benefit.

Certainly nothing guarantees the Hawthorne suit will ultimately be

successful, especially where his own version of events starts from

his participation in an illegal conspiracy, but a contingent

benefit is a benefit nonetheless. As to the fact of his dismissal

as a defendant in the Hunt litigation, by contrast, there can be

no reasonable dispute but that Hawthorne received a significant,

Brief in Support of Motion to Disqualify Plaintiff's Counsel Page 16 of 20 1-lunt v Wildwood Crest, et al.



material benefit from Plaintiff Hunt and Attorney Douglass in

connection with the about face of his testimony.

Certainly there is at a bare minimum and indisputable

appearance of impropriety. Plaintiff may predictably point out

that the "appearance of impropriety" was to some extent undermined

through New Jersey decisional law. The appearance of impropriety

standard, however, has only been undermined as a rule applicable

for purposes of disciplining an attorney, but the doctrine has not

been eliminated for purposes of considering disqualification

issues. In appropriate cases courts have continued to rely upon

and consider the appearance of impropriety in a given relationship.

See e.g. Haggerty v. Red Bank Borough Zoning Board of Adjustment,

385 N.J. Super. 501, 516-517 (App. Div. 2006).

In fact, in State v. Davis, 366 N.J.Super. 30, 44 (App. Div.

2004), decided after the effective date of the elimination of the

appearance of impropriety standard, the Appellate Division

specifically held that the standard was eliminated only as a basis

for attorney discipline. The limitation on the appearance of

impropriety standard as a basis for attorney discipline was

specifically held to provide no limitation on "the Court's

constitutional power over practice and procedure through which the

judiciary may control the conduct of attorneys in judicial

proceedings." Id., quoting, Administrative Determinations In


BARKER, GELFAND 64. JAMES • A PROFESSIONAL CORPORATION • VOORHEES, NEW JERSEY 08043


Response To The Report And Recommendation Of The Supreme Court

Commission On The Rules Of Professional Conduct, Commission

Comment, RPC 1.7.

This matter indeed presents a tangled web which cannot

reasonably be expected to be a common occurrence. It cannot be

every day that a sworn law enforcement officer vigorously

participates in another officer's termination case, gets sued by

the terminated officer over it, then flip flops and claims that

the entire termination was an illegal conspiracy of which he was

a part, gets dropped as a defendant in the initial lawsuit, and

then becomes represented in his own civil suit against the

remaining defendants. Given the uniqueness of the situation, it is

not surprising that we have been unable to find cases which neatly

parallel the situation factually. In addition to the general

appearance of impropriety, however, other case law generally

supports Ms. Douglass' disqualification here.

In Kaleta v. Clausi, 2013 U.S. Dist. LEXIS 60879 (M.D.Pa.

April 29, 2013) for example as related to the instant matter, the

Court expressed concern for whether a client of an attorney is in

a position to have disclosed client confidences to an adverse

attorney, which the Court found "would militate in favor of

disqualification." Id. at *29- *30.

As the Third Circuit has explained, the Model Rules'




equivalent of R.P.C. 1.9 exists for the purpose of preventing "even

the potential that a former client's confidences and secrets may

be used against him," to maintain "public confidence in the

integrity of the bar," and to fulfill a client's rightful

expectation of "the loyalty of his attorney in the matter for which

he is retained." In re Corn Derivatives Antitrust Litigation, 748

F.2d 157, 162 (3d Cir. 1984).

In summary, Ms. Douglass' representation of Defendant's

former litigation control group member coincident with dropping

the suit against the former control group member and representing

him separately preparing to sue on his behalf creates an

impermissible conflict. As a consequence of the impermissible

conflict, Ms. Douglass should be disqualified from representing

Plaintiffs Hunt. There is no way to cure whatever attorney client

privileged communications have already been shared by Lt.

Hawthorne with Ms. Douglass which directly relate to the Hunt

matter. Even if Hawthorne claims not to have shared any such

confidences, he is an untruthful person whose word the remaining

defendants cannot be reasonably expected to accept. Hawthorne went

all along with the case assisting with the administrative

prosecution and with defense of the civil litigation, only to later

claim it was all a big illegal conspiratorial act of discrimination

and retaliation. After that, we posit the remaining defendants

Brief in Support of Motion to Disqualify Plaintiffs Counsel Page 19 of 20 Hunt v Wildwood Crest, et at.



By: Todd J. Gelfand, Esqui e

Dated: May 20, 2015

cannot be faulted for not being willing to discuss that the

confidences shared with their counsel have not been disclosed by

Hawthorne to the attorney who is now about to sue them on

Hawthorne's behalf while still suing on Hunt's behalf.

As such, the remaining defendants ask the Court to disqualify

Ms. Douglass from further representation of Plaintiff Hunt in this

matter.

IV. CONCLUSION

For the reasons articulated herein, it is respectfully

requested that the Court disqualify Plaintiff's counsel, Michelle

Douglas, Esquire, from representing Plaintiff in the instant

matter.

Respectfully Submitted,

BARKER, GELFAND & JAMES a Professional Corporation




My Rights Lawyers, LLC

Michelle J. Douglass, Esq. 424 Bethel Road Somers Point, NJ 08244 Phone 609 7883595 Facsimile 609 7883599 Email: [email protected] Attorneys for Thomas J. Hunt and Barbara Hunt

IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEYCAMDEN VICINAGE

THOMAS J. HUNT and BARBARA HUNT,

Plaintiffs,

vs. BOROUGH of WILDWOOD CREST, Mayor CARL GROON, Chief of Police THOMAS DEPAUL, Doctor GARY M. GLASS, individually and in their official capacities, JOINTLY , SEVERALLY and the ALTERNATIVE, and, INDEPENDENTLY,

Defendants.

Civil Action No. 1:12cv06887JEIAMD

CERTIFICATION OF MICHAEL

HAWTHORNE

I, Michael Hawthorne, of full age and sound mind, do hereby certify as follows:

1. I make this certification in support of my position that I was never in a “litigation control

group” with Wildwood Crest, Thomas DePaul and David Mayer as I understand the

phrase to mean. I never had any decision making power, control or ability to influence

any act or decision that was made pertaining to Hunt’s disciplinary matter or civil

litigation. I was a sergeant at the time the disciplinary charges against Hunt were being

1


orchestrated (20102011) and became a lieutenant during the pendency of the disciplinary

action (September 2011).

2. In fact, I was considered to be just the opposite of someone who is “included” as part of a

“litigation control group” representative. I was adverse to the interests of DePaul and

Mayer who were in the “litigation control group” and whose actions were representative

of the Borough of Wildwood Crest.

3. As early as June 2007 I have been on the “outs” with Chief DePaul as a result of a failed

outside business venture we had together; we owned and operated a Carvel/Cinnabon

store. Thereafter, DePaul relegated me to his chauffeur requiring me to drive him to the

local meetings he attended; DePaul further harassed me by treating me so poorly within

the Department to the point that thenCaptain Bradley noticed and commented to me about

it regularly.

4. I am aware that the term “litigation control group” is defined by a rule of professional

conduct. I have read RPC 1.13. I do not fall within the definition of someone who is

within the litigation control group as it pertained to Tom Hunt’s disciplinary or litigation

matters. RPC 1.13 says:

(a) A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders or other constituents. For the purposes of RPC 4.2 and 4.3, however, the organization's lawyer shall be deemed to represent not only the organizational entity but also the members of its litigation control group. Members of the litigation control group shall be deemed to include current agents and employeesresponsible for, or significantly involved in, the determination of the organization's legal position in the matter whether or not in litigation, provided, however, that "significant involvement" requires involvement greater, and other than, the supplying of factual information or data respecting the matter. Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organization's lawyer butmay at any time disavow said representation.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the

organization is engaged in action, intends to act or refuses to act in a matter related to the

2


representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:

(1) asking reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate

authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the

seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.

(c) When the organization's highest authority insists upon action, or refuses to take action, that is

clearly a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer may take further remedial action that the lawyer reasonably believes to be in the best interest of the organization. Such action may include revealing information otherwise protected by RPC 1.6 only if the lawyer reasonably believes that:

(1) the highest authority in the organization has acted to further the personal or financial interests of

members of that authority which are in conflict with the interests of the organization; and (2) revealing the information is necessary in the best interest of the organization. (d) In dealing with an organization's directors, officers, employees, members, shareholders or other

constituents, a lawyer shall explain the identity of the client when the lawyer believes that such explanation is necessary to avoid misunderstanding on their part.

(e) A lawyer representing an organization may also represent any of its directors, officers, employees,

members, shareholders or other constituents, subject to the provisions of RPC 1.7. If the organization's consent to the dual representation is required by RPC 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented or by the shareholders.

(f) For purposes of this rule "organization" includes any corporation, partnership, association, joint

stock company, union, trust, pension fund, unincorporated association, proprietorship or other business entity, state or local government or political subdivision thereof, or nonprofit organization

3


5. I was not responsible for, or significantly involved in, the determination of the

organization's legal position in the matter. DePaul and Mayer were responsible and

significantly involved in the determination of Wildwood Crest’s legal position as it

pertained to Tom Hunt. I was a sergeant at the time who made known my position that

while I was obligated to provide the fact information they sought, I was going to do so in a

truthful manner.

6. On August 29, 2011, September 23, 2011 and April 5, 2012 Defendants Groon and

DePaul filed disciplinary complaints against Hunt which led to his termination from

employment on April 5, 2012. Captain Mayer served Hunt with all three disciplinary

complaints. Exhibit E, August 29, 2011, September 23, 2011 and April 5, 2012

Preliminary Notices of Disciplinary Action

7. I supplied some factual data with regard to Hunt’s disciplinary matter. Period.

8. I did not have any say in the determination of the position adopted by the Borough

through Chief DePaul and Captain Mayer. I did not initiate the disciplinary action. I did

not draft the charges. I was not consulted in the drafting of the charges. After the

disciplinary complaints were served on Hunt, I disagreed with their position that

disciplinary measures were warranted against Hunt. I was involved as a fact witness and

made my disagreements known throughout the pendency of the disciplinary process

against Hunt.

9. I did not bring the disciplinary charges. I did not determine whether the charges were or

should have been brought against Hunt. I did not draft the disciplinary charges against

Hunt. My understanding is that the disciplinary charges were drafted by William Blaney at

4


the request of DePaul. The disciplinary charges were authorized and signed by Mayor Carl

Groon as the appointing authority. I had no role in the authorization of the disciplinary

charges against Hunt. Mayer served the charges on Hunt. I had no role in the service of the

disciplinary complaints on Hunt.

10. I was questioned by legal counsel William Blaney about my knowledge of the disciplinary

charges against Hunt in the presence of Chief DePaul and Captain Mayer so that they

could review, monitor and attempt to influence my testimony.

11. I assume that Blaney also questioned other fact witnesses about the allegations contained

in the three (3) sets of disciplinary charges against Hunt. I made it clear, however, that I

did not agree with what DePaul and Mayer wanted me to say and that I would testify

honestly and in the manner in which I believed the events to have occurred. This

infuriated DePaul and Mayer who would not speak to me for weeks on end.

12. DePaul was aware that Hunt and I did not get along. I think that we had a rocky

relationship because Hunt perceived me as competition for promotions and thought I was

friends with DePaul. After Hunt reported DePaul’s overtime violations, DePaul did

everything in his power to aggravate an already tense relationship between me and Hunt. I

think that Hunt was unaware of the bad relationship between DePaul and I. I think Hunt

assumed that me and DePaul were good friends and business partners.

13. Once Tom Hunt brought his lawsuit and named me, initially, as a defendant, I was

contacted by Joseph Scott of the Barker Law firm where Todd Gelfand works. I have

never met Todd Gelfand and I have never talked to him nor communicated with him. He

5


did not contact me at any time to determine if I ever had any control or responsibility over

the decision making process regarding Hunt’s disciplinary or litigation matters.

14. Joseph Scott was an attorney retained by the Joint Insurance to represent the governmental

defendants, the Borough of Wildwood Crest, Chief DePaul, Captain Mayer and myself

against the charges brought by Tom Hunt in the State Court lawsuit he filed in May 2012.

15. I did speak to Joseph Scott shortly after the State Court complaint was filed by Tom Hunt

which was in May or June 2012 to review the allegations of the Complaint. I explained to

Scott that most of the allegations by Hunt that were directed at DePaul and Mayer,

including my suspicions about the falsification of evidence against Hunt by DePaul and

Mayer were true. Mr. Scott told me that he believed that it would be best for me to obtain

my own attorney.

16. Later, DePaul told me that I would not be afforded an attorney through the Borough’s

insurance company, the Joint Insurance Fund, because it would not look good and that we

would need to present a “unified” front. I did not agree so I set out to retain legal counsel

on my own. I retained Alan Epstein, an attorney located in Philadelphia of the Spector,

Gadon & Rosen law firm.

17. Mr. Epstein did not need to file any response on my behalf in the State court action

because it was dismissed and I was never named as a defendant again. I believe that I

would not have been named as a defendant in the first place had Hunt knew and

understood that the actions for which he complained in his Complaint as it pertained to me

were actions, in reality, that were taken by me at the direction of the Chief; or, that were

not, in reality, how he perceived them to be.

6


18. I understand that Hunt simply did not have all of the facts in his possession at the time he

filed his Complaint. Had I been questioned by his legal counsel at the time, Hunt would

have learned that DePaul and Mayer went out of their way to orchestrate the disciplinary

charges against him in order to terminate his employment. The disciplinary appeal was

also dismissed so I never had the opportunity to testify in that proceeding either.

19. I believe that Ms. Douglass is the best attorney to represent me given the fact that she also

represents Thomas Hunt in this federal case. Ms. Douglass understands this convoluted

history and is familiar with the parties. I have asked her to join my case with that of

Hunt’s case since the facts are overlapping. 1

20. Hunt’s case and mine are also similar in that I too began to experience a pattern of

retaliatory disciplinary actions and was threatened with having to submit to a psychiatric

fitness for duty evaluation as an abusive retaliatory tactic. DePaul threatened to send me

for a psychiatric FFDE because I objected to a Memo that he and Mayer used against Hunt

in his disciplinary action because I suspected it was manufactured. DePaul stated that I

must be going “nuts” to think he would do something like that. (Evidently, neither I nor

Hunt are “nuts” because the memo was deemed by the Cape May County Prosecutor

sufficiently tainted that he issued a “Brady” letter against Mayer for the manufacturing of

it; and as to me for not coming forward sooner with my suspicions). It should be noted 2

1 My legal claims, however, are restricted to naming others, (not the Wildwood Crest because I entered into a Settlement Agreement with the Wildwood Crest), such as the Cape May County Prosecutor as Defendants for causing a “Brady” letter to issue to Mayor Groon and Chief DePaul in which Prosecutor Taylor asserted that I was untruthful in not disclosing (sooner) the falsification by Mayer and DePaul of documents to use against Hunt in the disciplinary proceeding. A “Brady” letter from the Prosecutor is the kiss of death to a police officer who is rendered useless in that he is prevented from testifying in any criminal matter because the Prosecutor provides the criminal defense attorney with evidence that the arresting officer has been untruthful and therefore his credibility is forever damaged.

2 In this case, Prosecutor Taylor made a determination about my truthfulness without ever talking to me or

affording me a hearing or any of the requisite due process rights associated with “Brady” determinations; and

7


that Hunt was in fact ordered to a psychiatric fitness for duty evaluation which formed the

basis of one of the three sets of disciplinary charges against him, to wit, “fitness for duty.”

21. My career as a police officer was ended, just like Hunt’s, after I reported and complained

about DePaul and Mayer misappropriating DV Grant money, stealing time and

manufacturing evidence against Tom Hunt in an effort to terminate his employment.

22. I therefore sought out and asked Ms. Douglass to represent me sometime in April 2015.

23. Ms. Douglass initially did not want to accept my case and would not talk to me. I was

looking for legal counsel in New Jersey who would be able to quickly understand the facts

and issues in my case. Mr. Epstein was not licensed to practice law in New Jersey but

agreed to represent me for purposes of providing employment law advice to guide me in

reporting the illegal conduct I suspected by DePaul and Mayer.

24. I also needed representation later on for purposes of representing my interests in the

disciplinary matter seeking my termination from employment and brought against me by

Wildwood Crest for having reported the wrongdoing within the Department. I therefore

hired David Meyer, Esq. Also, Meyer represented me initially in the lawsuit brought by

John Paff against the Cape May County Prosecutor’s Office which sought to obtain the

investigatory documents I provided to the Cape May County Prosecutor’s office.

moreover, the reason for these actions by Taylor was to eliminate me from the position of lieutenant to allow the promotion of his nephew Wildwood Crest Officer Lloyd.Officer Lloyd was indeed promoted. The conflict and ethical ramifications abound for Prosecutor Taylor. See,Brady v. Maryland,373 U.S. 83 (1963)(Police officers who have been dishonest are sometimes referred to as "Brady cops." Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity). Putting a label like “liar” to somebody, however, should require being able to prove that convincingly. Taylor’s unchecked application of the label “liar” on me was made without affording me notice and a hearing before he notified Wildwood Crest; Wildwood Crest in turn suspended me without pay and eventually pressured my termination from employment. It turns out, Taylor’s unchecked “Brady” determination was motivated by his desire to advance the promotional career of his nephew.

8


25. At the time I retained David Meyer, Esq. I did not know but I later learned that his wife

worked as the Executive Secretary for Cape May County Legal Counsel, James Arsenault,

Esq. who represents the Cape May County Prosecutor’s Office. I believed that to be a

conflict and did not feel comfortable in maintaining an attorneyclient relationship with

Meyer in light of this fact.

26. I asked Alan Epstein to speak to Ms. Douglass on my behalf to better understand the

reason for my request that she represent me. After speaking to Mr. Epstein, Ms. Douglass

contacted me for purposes of vetting me to determine whether she would be ethically

permitted to undertake representation on my behalf.

27. Ms. Douglass wanted to make sure that there was not a conflict in representing me and

Mr. Hunt. She asked me whether I believed that I had ever been represented by any

attorney in the Hunt litigation. I stated that I was not represented by an attorney, including

Mr. William Blaney and Mr. Joseph Scott. Although Scott had apparently filed an Answer

on my behalf in the State court lawsuit, I advised Ms. Douglass that Mr. Scott told me to

get my own attorney due to the conflict presented by my position which was adverse to

the Borough. I explained that I also had no control or responsibility for the disciplinary

charges which were filed against Hunt and that the charges were the doings of Chief

DePaul and Captain Mayer. Grron simply signed off on the charges and would have had

no knowledge of any of the substantive allegations except for what he was told by DePaul.

28. By way of background, I was hired as a police officer for the Borough of Wildwood Crest,

where I live, in December 1989. I became a sergeant on the police department in May,

1999 and was again promoted in September 2011 to the rank of lieutenant. My career with

9


the Borough of Wildwood Crest Department was without blemish until disciplinary

charges were brought against me after I reported what I believed to be criminal

misconduct by Chief Thomas DePaul and Captain David Mayer.

29. On or about September 17, 2013 I went to the Cape May County Prosecutor’s Office to

report what I reasonably believed to be criminal conduct. On May 21, 2014 disciplinary

charges are brought against me by Wildwood Crest. On June 27, 2014 I entered into the

Settlement Agreement and Release with Wildwood Crest whereby all charges were

dismissed and I retired in good standing.

30. The fact is that I am not and never have been in the “litigation control group” on behalf of

Wildwood Crest but was, in reality, and continue to be in an adversarial position to

Defendants. A fact which was unbeknownst to Hunt and Ms. Douglass until

approximately a little more than one month ago.

31. Mr. Gelfand is also without personal knowledge about the nature of the actual role and

relationship between myself and the Defendants Wildwood Crest, DePaul and David

Mayer. This is so because Gelfand has not been the attorney of record until recently in this

civil litigation filed by Hunt for his wrongful termination from employment. Joseph Scott

also of the Barker Law Firm, was the predecessor attorney in the civil litigation on behalf

of the Defendants before he retired from the practice of law and left the Barker Law Firm.

32. Mr. Scott attempted to interview me regarding the subject of Hunt’s State lawsuit but

when he discovered that I was adverse to his client’s position and always had been, he

immediately advised me to seek other legal counsel.

10


33. I did seek other legal counsel but before that attorney could enter an appearance on my

behalf, the State lawsuit was dismissed in 2012 and apparently moved to Federal Court

which did not include me nor Mayer as named Defendants.

34. Gelfand obviously also lacks a firm understanding of what my intentions are with regard

to pursuing civil litigation against Wildwood Crest because he was not an attorney

representing any party in the Paff (OPRA) litigation before the New Jersey Superior

Court nor was he ever present during any of those proceedings before the Honorable

Nelson B. Johnson, J.S.C. I also have never talked to the man.

35. On April 21, 2015 Ms. Douglass filed a substitution of attorney on behalf of me in the

case, John Paff v. Cape May County Prosecutor’s Office, Docket No.: ATLL26514; an

action filed by concerned citizen, John Paff, under the Open Public Records Act and the

common law right to access of government records.

36. Paff sought the disclosure from the Cape May County Prosecutor’s office of documents

that related to an internal affairs complaint and subsequent investigation initiated by

Hawthorne into alleged criminal conduct by DePaul and Mayer.

37. On May 8, 2015 I attended oral argument with Ms. Douglass on the Paff Order to Show

Cause application. I heard Ms. Douglass respond to a question by Judge Johnson

indicating that I was going to be filing a lawsuit. The identities of the intended defendants

and the type of cause of action was not addressed. I am not understanding how it is that

Mr. Gelfand, who was not present at thePaff Order to Show Cause hearing, jumped to the

11


conclusion that I intend to file suit against Wildwood Crest. I do intend to file suit but not

against the Borough of Wildwood Crest. 3

38. In March 2014 Hunt was called to the Cape May County Prosecutor’s office to answer

questions as part of an investigation that was initiated by me into alleged criminal

wrongdoing by DePaul and Mayer.

39. In or about April 2015 I contacted Ms. Douglass to request representation in the action

filed in Cape May County Superior Court filed by John Paff. Paff is a wellknown

citizen’s activist and advocate for Open Government having filed more than 700 Open

Public Records Act requests Paff sought disclosure of the internal affairs complaint filed

by Hawthorne and all of the related investigatory materials in the possession of the Cape

May County Prosecutor’s Office.

40. For instance, Hunt thought that I took a confidential letter all on my own to the Chief who

then turned it over to Business Administrator Kevin Yecco during tense union contract

negotiations that were happening around December 2009. At the time of the contract

union negotiations of which Hunt was the lead negotiator, PBA Local 59 attorney, Chuck

Schlager prepared a letter addressed to Mr. Richard D’Amico, Jr., Unit Representative.

The letter set forth confidential strategy regarding the union’s responses to the Borough’s

contract proposals as well as insight by Schlager regarding the proposed contract by the

union. The letter was intercepted but Hunt believed that it was me who independently

3 I resigned from employment as a lieutenant of the Borough of Wildwood Crest Police Department in June 2014 as part of a negotiated settlement agreement whereby Hawthorne released his civil claims against the Borough of Wildwood Crest. This fact too must not be known to Gelfand since he was not the attorney representing the Borough of Wildwood Crest or any of the parties in that underlying matter. Gelfand’s ignorance of the Hawthorne Settlement Agreement and Release provides the only reasonable explanation as to his erroneous assumption and proffer to this Court that Hawthorne will have his “own suit against Wildwood Crest.”

12


intercepted the letter from the fax machine and gave it to DePaul.ECF Doc. No. 59, ¶ 25

Not so. I was handed the letter by clerk Jim Bailey who retrieved it from the Department’s

fax machine. I did not know its contents. The Chief took it from me and gave it to Yecco.

Afterwards, DePaul apologized to me and told me that it made me look like an “as*hole”

in front of the men.

41. Also, there are allegations in Hunt’s Complaint regarding the January 2011 retrieval of

Hunt’s service weapon, which is also factually incorrect in that it was not me who

instigated any of it. In actuality and what Hunt did not know at the time he filed his

Amended Complaint (in February 2015), was that I strongly disagreed with and objected

to Mayer’s memo to Hunt about turning over his service weapon. DePaul became furious

with me and would not speak to me for weeks. DePaul ordered me to revise my original

report several times and each time I objected but I complied fearing insubordination

charges. After this, we. constantly argued about actions that I thought were retaliatory

against Hunt.

42. The above and other facts as alleged in Hunt’s Complaint as it pertains to me were based

on Hunt’s perception, albeit mistaken perception as it turns out, that I was participating

with DePaul and Mayer. The bad acts as alleged by Hunt in his Complaint occurred, but

those bad acts were at the direction and instigation of DePaul and Mayer, not me. I

thought then and I think now that DePaul and Mayer were purposefully retaliating against

Hunt because Hunt publicly disclosed the overtime violations and the Chief keeping two

sets of time and attendance books during the contract negotiations.

13


43. In early 2012, I also began to notice other improprieties such as fraudulent use of grant

money that was intended for Domestic Violence use, not to be used as a personal slush

fund of Mayer. I was not going to participate in any cover ups and I informed Mayer of 4

this as well as telling him that I was no longer going to serve as the chauffeur for he and

DePaul so that they could get intoxicated while attending meetings.

44. Shortly afterwards, I got called into Mayer’s office by DePaul and in Mayer’s presence,

DePaul threatened me by saying he controlled my enrollment to the FBI Leeda Training.

DePaul was so angry he was spitting at the mouth screaming at me that I had no business

complaining about anything. DePaul advised me that if it was a mistake that I had become

a Lieutenant, he could fix that because he was “great at fixing things” and said “look what

I did to Hunt.” DePaul told me that if I wanted to take him on, he’s ready because he has

“enough time to retire but you don’t.” DePaul ended the meeting by ripping up the FBI

Training paperwork for me and telling me never to question the Domestic Violence Grant

again and walked out of the office.

45. It was about this time that William Blaney, attorney for Wildwood Crest for purposes of

prosecuting the disciplinary charges against Hunt, began to have meetings with me to

review the charges about the matters I was involved. The prep meetings took place in the

presence of DePaul and Mayer. DePaul and Mayer wanted to hear what I had to say about

the charges because they did not trust me, not because I was in their “litigation control

group.”

4 Hunt also suspected Mayer to be misappropriating the DV Grant monies and reported same to the Cape May County Prosecutor’s office and the Federal Justice Department. Exhibit B

14


46. I was certainly well aware that I was not a part of any decision making process as it

pertained to management let alone as it pertained to the disciplinary process against Hunt.

During the prep meetings, I was frequently interrupted by argumentative outbursts by

DePaul because he was not happy with my factual recollections.

47. The disciplinary hearing for Hunt started on September 12, 2012 (unbeknownst to Hunt),

Mayer and I were not even talking at this time. I had also complained to DePaul that

Mayer was rarely in the office in the summer months although he was scheduled to work.

I saw Mayer working his fruit stand truck business many times in the summer months

when he was supposed to be at work and while he was on the clock for the Borough.

48. DePaul barely talked to me except in an attempt to influence my testimony against Hunt. 5

We were constantly fighting. I think that I was on the verge of a nervous breakdown and

thought my career would soon be over because I was not going to lie.

49. Contrary to Gelfand’s supposition, I was not “one of the three police administrators who

directed the investigation and prosecution of administrative disciplinary charges against

Plaintiff Sgt. Hunt.” (Def. Br. 34).

50. It is true that that I began an “investigation of Defendants DePaul and Mayer” because I

suspected they were engaging in illegal conduct and I wanted to secure proof of it.

Gelfand claims that the investigation by me was “unauthorized” but he doesn’t even

consider the fact that the Wildwood Crest Police Department, as small as it was, did not

have an internal affairs investigation division and that investigations would have to be all

“authorized” by the Chief or Captainthe very men I suspected of wrongdoing. It makes

5 I never testified in the disciplinary proceeding because it was terminated by the withdrawal from the Office of Administrative Law and the Civil Service Commission.

15


little sense to portray my investigation as an “offthe grid” illegitimate investigation when

I was attempting to carefully secure proof in order to legitimately take my concerns to an

outside agency.

51. I can only be considered as adverse to the goal and interests of DePaul and Mayer who

were the sole perpetrators of the disciplinary action against Hunt.

52. The Borough of Wildwood Crest does not nor should not have any real reason to believe

that any “confidences” were shared with me because they did not share any confidences.

Instead, I was asked to participate in a disciplinary proceeding against Hunt they brought

against him. I made abundantly clear that I was not a part of their game plan when I

objected to their requests to change my recollections, and, eventually I gathered up enough

evidence and went to the Cape May County Prosecutor’s Office to report DePaul and

Mayer for criminal wrongdoing.

53. Even more insulting, bordering on purposeful misrepresentation to this Court, is the

assertion that I participated in the Hunt civil litigation as part of the “litigation control

group.” I met with Joseph Scott, the attorney retained on behalf of the Joint Insurance

Fund to represent collectively the Borough of Wildwood Crest, Groon, DePaul, Mayer and

Hawthorne in the civil litigation by Hunt initially filed in the State Court. At the time, I

conveyed my thoughts to Scott that DePaul and Mayer were wrong and many of the

allegations by Hunt were accurate.

54. At that point, Scott advised Hawthorne that he needed to obtain other counsel.Idid indeed

obtain other counsel but not before the State Court action was dismissed. Groon as the 6

6 I retained attorney Alan Epstein from Philadelphia for advice after I went to the Cape May County Prosecutor with reports of criminal wrongdoing by DePaul, and Mayer. I later retained David Meyer, Esq. to represent me with regard to the disciplinary action against me that came out my going to the Cape May County Prosecutor and

16


Michael Hawthorne

agency.

Mayor and DePaul as the Chief of Police are the policymakers for the Borough of

Wildwood Crest, not me-as is obvious by their ousting me too from my job for not

participating in their plan to wrongfully terminate Hunt and engaging in what I believed

to be criminal conduct in misusing government grant moneys intended for a domestic

violence program, stealing time and manufacturing fabricated evidence against Hunt.

I certify that the above statements are true to the best of my knowledge and if any statements are

willfully false, I may be subject to punishment.

Date: May 27, 2015

for the Paff v. Cape May County Prosecutor's Office, Order to Show Cause OPRA challenge. I terminated my relationship with attorney Meyer after I learned that Meyer's wife was the direct secretary to Cape May County Counsel and Meyer failed to immediately disclose this to me. Thereafter, I contacted attorney Michelle Douglass to represent my interests in the Paff matter.

17


My Rights Lawyers, LLC

Michelle J. Douglass, Esq. 424 Bethel Road Somers Point, NJ 08244 Phone 609 7883595 Facsimile 609 7883599 Email: [email protected] Attorneys for Thomas J. Hunt and Barbara Hunt

IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEYCAMDEN VICINAGE

THOMAS J. HUNT and BARBARA HUNT,

Plaintiffs,

vs. BOROUGH of WILDWOOD CREST, Mayor CARL GROON, Chief of Police THOMAS DEPAUL, Doctor GARY M. GLASS, individually and in their official capacities, JOINTLY , SEVERALLY and the ALTERNATIVE, and, INDEPENDENTLY,

Defendants.

Civil Action No. 1:12cv06887JEIAMD

PLAINTIFFS’ OPPOSITION

STATEMENT TO DEFENDANTS’ MOTION TO DISQUALIFY

COUNSEL

POSITION STATEMENT

Defendants’ counsel argues for the disqualification of Plaintiff’s counsel citing to R.P.C.

1.7 (a)(2), 4.2 (and implicitly 1.13) and 8.4 (d). The Defense makes a number of conclusions not

supported by fact in a rush to remove Plaintiff’s counsel. Motions to disqualify must be viewed

with a wary eye to prevent abuse as a litigation tactic. See, 40TH ABA NATIONAL

CONFERENCE ON PROFESSIONAL RESPONSIBILITY; american barconference on


professional responsibility; FoleyCiccantelli v. Bishop’s Grove Condo. Ass’n, 797 N.W.2d 789,

804 (Wis. 2011) (Motions to disqualify could be used as a litigation tactic).

The R.P.C.s Called Into Question By Defense Counsel

Defendants argue that Plaintiffs’ counsel must be disqualified from representing the

Hunts in this case because of her recent entry of representation of Michael Hawthorne

(Hawthorne). Hawthorne, Defendants loosely claim, was part of the “litigation control group”

for the organization (Borough of Wildwood Crest) with respect to the disciplinary action and

civil litigation by Hunt in this case, and as such, Plaintiffs’ counsel is conflicted out of continued

representation of Plaintiffs in this case pursuant to R.P.C. 1.7(a) (2), 4.2 and 8.4(d).

RPC 1.7 (a) (2) provides:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation

involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(2) there is a significant risk that the representation of one or more clients will be materially

limited by the lawyer's responsibilities to another client, a former client, or a third person or by a

personal interest of the lawyer.

RPC 4.2. provides:

In representing a client, a lawyer shall not communicate about the subject of the representation

with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be

represented by another lawyer in the matter, including members of an organization's litigation

control group as defined by RPC 1.13, unless the lawyer has the consent of the other lawyer, or

is authorized by law or court order to do so, or unless the sole purpose of the communication is

to ascertain whether the person is in fact represented. Reasonable diligence shall include, but not

1


be limited to, a specific inquiry of the person as to whether that person is represented by counsel.

Nothing in this rule shall, however, preclude a lawyer from counseling or representing a member

or former member of an organization's litigation control group who seeks independent legal

advice.

R.P.C. 1.13 defines “litigation control group” as follows:

Members of the litigation control group shall be deemed to include current agents and employees

responsible for, or significantly involved in, the determination of the organization's legal position

in the matter whether or not in litigation, provided, however, that "significant involvement"

requires involvement greater, and other than, the supplying of factual information or data

respecting the matter.

R.P.C. 8.4 (d) provides:

It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice.

Plaintiffs’ counsel breached none of the above rules as argued by Defense counsel.

The representation of the Hunts and Hawthorne does not pose a “significant risk” that

such representation will “materially” limit counsel’s responsibilities to either client (both of

whom have consented to the dual representation) nor to a third party. Hawthorne is not and never

has been in the Defendants’ “litigation control group” and is therefore someone with whom

Plaintiff’s counsel may communicate and represent. Finally, the representation of the Hunts and

Hawthorne is not prejudicial to the administration of justice. Indeed, the representation of the

Hunts and Hawthorne is beneficial to the administration of justice in that the alignment of their

respective interests is bound to efficiently produce the disclosure of ultimate justice: the truth.

2


Litigation Tactic, Defense Counsel’s Ignorance of the Facts Prevents Disqualification

The filing of this motion without a proper factual predicate calls into question the good

faith of Defense counsel and highlights the question of motive: litigation tactic? Defendants’

counsel postulates without proof that Michael Hawthorne was in the “litigation control group.”

Defendants’ counsel also erroneously assumes that Hawthorne is going to bring a lawsuit

against the Borough of Wildwood Crest. These faulty statements by Defense counsel might be

explained by the fact that Mr. Gelfand was not the counsel of record for Defendants for any part

of the preceding administrative disciplinary matter against Thomas Hunt (Hunt).

Mr. Gelfand actually has no fact information to credibly support his argument that

Hawthorne was in the “litigation control group” during the administrative proceedings which

were brought by Defendants Mayor Carl Groon (Groon) and Chief Thomas DePaul (DePaul),

not Hawthorne, against Thomas Hunt. Groon and DePaul were responsible for the termination of

Hunt’s employment, not Hawthorne. Hawthorne is not and never has been a member of the

Defendants’ “litigation control group” to terminate Hunt. Indeed, just the opposite is true.

The Defendants were represented by attorney William Blaney, not Gelfand, for the

prosecution of the administrative disciplinary charges against Hunt. The fact is that Hawthorne 1

was not and never was in the “litigation control group” with respect to the disciplinary action,but

was, in reality, and continues to be in an adversarial position to Defendants. A fact which was

1 On October 29, 2012 Plaintiff withdrew his disciplinary appeal from the Office of Administrative Law in order to pursue his claims in toto through civil litigation in order to gain the benefit of the full panoply of civil litigation discovery processes such as depositions, not typically afforded to parties in administrative disciplinary proceedings and due to a recent New Jersey Supreme Court decision which seemed, at the time, to warrant the joining of all related claims in one forum.See, Winters v. North Hudson Regional Fire & Rescue, decided September 13, 2012, 212 N.J. 67 (2012). In February 2013 Defendants filed an appeal with the New Jersey Appellate Court challenging Plaintiff’s decision to withdraw from the administrative forum. In December 2014, the New Jersey Appellate Court rejected Defendants’ challenge. Plaintiff was thereafter permitted to resume his civil litigation against Defendants in this Court. See ECF Doc. No. 53, 54

3


unbeknownst to Hunt and the undersigned until approximately a little more than one month ago.

Exhibit A, Hawthorne Certification and Exhibit B, Hunt Certification. This point will be

explored more fully below.

Mr. Gelfand (Gelfand) is also without personal knowledge about the nature of the actual

role and relationship between Hawthorne and the Defendants Wildwood Crest, DePaul and

David Mayer (Mayer). This is so because Gelfand has not been the attorney of record in either

the administrative disciplinary matter or the civil litigation brought by Hunt challenging his

termination from employment. It was not until recently that Gelfand undertook representation of

the Defendants in this civil litigation filed by Hunt for his wrongful termination from

employment as a police officer with an unblemished twenty one year career with the Borough of

Wildwood Crestuntil he spoke out against Chief DePaul’s violations of the Fair Labor Standards

Act (FLSA). Joseph Scott also of the Barker Law Firm, was the predecessor attorney in the civil

litigation on behalf of the Defendants before he retired from the practice of law and left the

Barker Law Firm. Exhibit A, Certification of Hawthorne.

Contrary to Gelfand’s assertion, his firm does not represent Hawthorne. Indeed,

Gelfand’s law firm had no business at any time representing Hawthorne nor for that matter,

should Gelfand’s law firm be representing DePaul and Mayer in this case. Hawthorne made

known to Mr. Scott that he was adverse to the interests of Defendants in terminating Hunt’s

employment. Hawthorne also made clear to Mr. Scott that he was not in agreement with

Defendants’ litigation position and that he believed that they were not justified, legally, in

terminating Hunt’s position. Exhibit A.

4


It has of late also become blatantly evident that DePaul and Mayer, whom Hawthorne

claims fabricated evidence against Hunt with regard to the disciplinary charges against Hunt, are 2

in an adverse position to the Borough of Wildwood Crest.SeeR.P.C. 1.13 (b)(If a lawyer for an

organization knows that an officer, employee or other person associated with the organization is

engaged in action, intends to act or refuses to act in a matter related to the representation that is

a violation of a legal obligation to the organization, or a violation of law which reasonably

might be imputed to the organization, and is likely to result in substantial injury to the

organization, the lawyer shall proceed as is reasonably necessary in the best interest of the

organization. In determining how to proceed, the lawyer shall give due consideration to the

seriousness of the violation and its consequences, the scope and nature of the lawyer's

representation, the responsibility in the organization and the apparent motivation of the person

involved, the policies of the organization concerning such matters and any other relevant

considerations. Any measures taken shall be designed to minimize disruption of the organization

and the risk of revealing information relating to the representation to persons outside the

organization.)

The facts here precluded,unequivocally, Mr. Scott (Scott) and Gelfand’s law firm from

representing Hawthorne. Scott attempted to interview Hawthorne regarding the subject of this

lawsuit when he discovered that Hawthorne was adverse to his client’s position and always had

2 The Cape May County Prosecutor’s Office has also apparently determined that Mayer fabricated evidence against Hunt and has issued a “Brady”letter against Mayer.A “Brady” letter from the Prosecutor is the kiss of death to a police officer who is rendered useless in that he is prevented from testifying in any criminal matter because the Prosecutor provides the criminal defense attorney with evidence that the arresting officer has been untruthful and therefore his credibility is forever damaged.

See, Brady v. Maryland, 373 U.S. 83 (1963)(Police officers who have been dishonest are sometimes referred to as "Brady cops." Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity). Mayer was permitted to resign and avoided disciplinary charges against him.

5


been. Scott immediately advised Hawthorne to seek other legal counsel. Exhibit A, Hawthorne

Certification.

Hawthorne did seek other legal counsel but before that attorney could enter an

appearance on Hawthorne’s behalf, the State lawsuit was moved to Federal Court by way of

motion. Exhibit A. The newly filed Federal lawsuit did not include Hawthorne nor Mayer who

were both previously named Defendants in the State Court lawsuit. See ECF Doc. No. 35; 3

Defendants’ Exhibit “2”

Finally, Gelfand obviously also lacks a firm understanding of what Hawthorne’s

intentions are with regard to pursuing civil litigation against Wildwood Crest because he was not

an attorney representing any party in the Paff(OPRA) litigation before the New Jersey Superior

Court nor was he ever present during any of those proceedings before the Honorable Nelson B.

Johnson, J.S.C.

On April 21, 2015 the undersigned filed a substitution of attorney on behalf of

Hawthorne in that case (John Paff v. Cape May County Prosecutor’s Office, Docket No.:

ATLL26514; an action filed by concerned citizen, John Paff, under the Open Public Records

Act and the common law right to access of government records). Exhibit C, April 21, 2015

Substitution of Attorney by Michelle J. Douglass, Esq. to replace David Meyer, Esq.Paff sought

the disclosure from the Cape May County Prosecutor’s office of documents that related to an

internal affairs complaint and subsequent investigation initiated by Hawthorne into alleged

criminal conduct by DePaul and Mayer. Exhibit A, Hawthorne Certification

3 Gelfand insinuates that Hawthorne was dropped as Defendants when the State court case was dismissed to file in Federal court in exchange for his becoming a witness for Hunt. Not true. Both defendants, Hawthorne and Mayer were dropped upon the filing of the Federal lawsuit.ECF Doc. No.1. Hunt dismissed the defendants he believed were not the policymakers for the Borough of Wildwood Crest in order to reduce the number of named defendants.Exhibit B, Hunt Certification

6


On May 8, 2015 at oral argument on the Paff Order to Show Cause application, the

undersigned, as an aside, indicated to Judge Johnson simply that litigation was going to be taken

by Hawthorne. Exhibit A. The identities of the intended defendants and the type of cause of

action was not addressed.Exhibit A. Yet, despite the fact that Gelfand was not present at thePaff

Order to Show Cause hearing, he asserts that he learned of the comment made by the

undersigned from an undisclosed source; he thereafter quickly jumped to the conclusion that

Hawthorne intends to file suit against Wildwood Crest. Gelfand is wrong in his assumption.

Hawthorne does intend to file suit but not against the Borough of Wildwood Crest. 4

Defense counsel invests much energy pointing out the complexities of this case using

descriptors such as “tortured procedural history” and “tangled web of conflict” which is highly

indicative of his apparent misunderstanding of the facts and which lends itself to further

explanation for his unsupported and faulty conclusions that Hawthorne was a member of the

“litigation control group” and about Hawthorne’s “own suit against Wildwood Crest.” (Def. Br.

8)

PROCEDURAL STATEMENT

Procedural Facts Pertinent to the Defense Disqualification Motion

On April 5, 2012 Hunt was terminated from employment with Wildwood Crest. ECF

Doc. No. 35

4 Hawthorne resigned from employment as a lieutenant of the Borough of Wildwood Crest Police Department in June 2014 as part of a negotiated settlement agreement whereby Hawthorne released his civil claims against the Borough of Wildwood Crest. Exhibit A. This fact too must not be known to Gelfand since he was not the attorney representing the Borough of Wildwood Crest or any of the parties in that underlying matter. Gelfand’s ignorance of the Hawthorne Settlement Agreement and Release provides the only reasonable explanation as to his erroneous assumption and proffer to this Court that Hawthorne will have his “own suit against Wildwood Crest.”

7


On May 11, 2012 Hunt filed a lawsuit in State Court for alleged illegal termination from

employment. (Defendants’ Exhibit “2”)

In September 2012 through October 2012 the administrative appeal on the disciplinary

charges against Hunt started and was underway. On October 29, 2012 Hunt withdrew the

disciplinary appeal. Exhibit D, October 29, 2013 withdrawal letter.

On November 6, 2012 Hunt filed his Complaint in Federal Court pursuant to Court Order

permitting the dismissal of the State Court action and transfer to Federal Court. ECF Doc. No. 1

On February 22, 2013 Defendants filed an appeal with the New Jersey Superior Court

appealing from the New Jersey Civil Service Commission Order permitting Plaintiff to withdraw

his disciplinary appeal in order to pursue all claims in one forum, to wit, Federal Court.Exhibit

D, February 22, 2013 Notice of Appeal

On March 21, 2013 Defendants filed a Motion to Dismiss and to State the Federal lawsuit

pending the outcome of the New Jersey Superior Court Appellate action. ECF Docs. Nos. 13, 14

On August 6, 2013 Defendants filed a motion for summary judgment. ECF Doc. No. 23

On October 10, 2013 Plaintiff filed an Amended Complaint. ECF Doc. No 35

On December 20, 2013 the Court entered an Order dismissing this case without prejudice

pending the outcome of the New Jersey Superior Court Appeal. ECF Doc. No. 45

On December 22, 2014 Plaintiff filed a motion to reopen this Federal action. ECF Doc.

No. 53

On January 21, 2015 the Court entered an Order granting Plaintiff’s motion to reopen the

case. ECF Doc.No. 54

8


On February 27, 2015 Plaintiff filed an Amended Complaint based on newly discovered

information and added Captain David Mayer back into the litigation as a named party Defendant.

The new fact allegations that Hunt had learned as a result of being interviewed by the Cape May

County Prosecutor’s Office are contained in the Amended Complaint at paragraphs 44 through 5

54 and are as follows:

viii. The January 23, 2010 Manufactured Memo; DePaul and Mayer Engage in the Creation of False Evidence; Cape May County Prosecutor Later Conducts an Investigation Regarding the Memo and Determines Mayer to be Untruthful

44.) In or about 2010, the Borough Defendants determined that Hunt would

not be permitted to return to his assignment as the School Resource Officer (“SRO”). Later, Defendant Mayer asserted to Dr. Glass, as part of an FFDE in which the Defendants ordered Hunt to attend, that Hunt had been removed as the SRO as part of a disciplinary action in order to paint a picture, falsely, that Hunt had a troubled history.

45.) DePaul and Mayer manufactured a memo dated January 23, 2010,

which contains the name of Captain Bradley as the author. In fact, DePaul and Mayer are the authors of the memo and they falsified the date of the memo. The memo dated January 23, 2010 was not authored by Captain Bradley. It was prepared by DePaul and Mayer. The memo which is dated January 23, 2010 was actually created in 2011 in preparation for a disciplinary hearing against Hunt. It was intended to be used as (false) evidence in the hearing.

46.) The “January 23, 2010 Memo” was supposedly issued by Captain

Bradley purportedly because of “recent suspension” regarding the “Flynn matter” (as explained above).In July 2009, some six (6) months prior, the “Flynn incident” took place in which an internal affairs investigation notice was given to Hunt in December 2009. (Hunt received notice of an internal affairs investigation regarding the Flynn matter on December 18, 2009, was interviewed on January 19, 2010, issued a PNDA dated January 29, 2010 for the first time alerting him to a

5 On September 17, 2013 Hawthorne had filed a complaint with the Cape May County Prosecutor’s Office alleging criminal conduct by DePaul and Mayer which also triggered an internal affairs investigation by the Borough of Wildwood Crest requiring Wildwood Crest to hire an outside private investigator by the name of James Fallon due to the allegations of wrongdoing against the Chief and Captain. An internal affairs investigation ensued.

9


possible 4 day suspension; and a FNDA dated March 18, 2010 imposing a 4 day suspension).

47.) The socalled July 2009 “Flynn incident” gave rise to a four (4) day

suspension in April 2010 against Hunt. Although two (2) other officers, including Flynn were involved in the arrest, no one other than Hunt was singled out for discipline. However, most important, is the fact that Captain Bradley could not have known, in January 2010, that Hunt had “recently received a suspension” regarding the July 2009 “Flynn incident” because Hunt had not been disciplined until April 2010.

48.) The January 23, 2010 memo was not an error in the date. Clearly, the

January 23, 2010 Memo did not contain a typographical error involving the year, that is, the memo was not prepared by Captain Bradley in January 2011, since Captain Bradley had opted to retire in November 2010 following his arrest for DUI in October 2010.

49.) Hunt has learned that the January 23, 2010 memo was a manufactured

and false piece of evidence against him through an investigation ultimately conducted by the Cape May County Prosecutor’s office (“CMCPO”) initiated by Lieutenant Hawthorne. Hawthorne reported that the memo was fake.

50.) On or about March 2014 the CMCPO initiated an investigation, inter

alia, the January 23, 2010 memo. 51.) Upon information and belief, the Cape May County Prosecutor

substantiated that the January 23, 2010 memo was a fraud and issued a “PreBrady” letter to Mayer. The PreBrady letter puts Mayer and the Wildwood Crest Police Department on notice that the CMCPO is required to provide any criminal defendant in a case in which Mayer is a witness, that it has found Mayer to be untruthful.

ix. Attorney Gelfand is a Witness as to the Falsified January 23, 2010

Memo 52.) During the investigation by the CMCPO, attorney Todd Gelfand was

requested to turn over certain discovery materials in this case to the CMCPO.

10


53.) In particular, Gelfand turned over a document that appears to be the same memo as dated January 23, 2010 with the exception of the date. The Gelfand memo is dated, however, January 29, 2010.

54.) It is believed that DePaul and Mayer fabricated yet another memo, this

time, dated January 29, 2010. Why? Because Defendants realized that the date on the initial memo, i.e., January 23, 2010, was not logical because there had not even been a suspension against Hunt for the Flynn incident until January 29, 2010. Recall, the January 23, 2010 Memo refers to a “recent” suspension regarding the Flynn incident.

ECF Doc.No. 59

In March 2014 Hunt was called to the Cape May County Prosecutor’s office to answer

questions as part of an investigation that was initiated by Hawthorne into alleged criminal

wrongdoing by DePaul and Mayer. Exhibits A, B. Following Hunt’s interview in March 2014,

Todd Gelfand was asked to participate in the Cape May County Prosecutor’s Office investigation

and to provide certain materials he had received from Defendants. Hunt was reinterviewed by

the Cape May County Prosecutor’s Office regarding a memo dated January 29, 2010 that was

provided by Gelfand to the Cape May County Prosecutor. In short, Hunt learned that there were

two (2) documents that were fabricated by DePaul and Mayer that fraudulently formed the basis

of disciplinary action against Hunt. Hawthorne had reported the Defendants’ manufacturing of

this evidence to the Cape May County Prosecutor in September 2013. Exhibits A, B

The Amended Complaint provides notice to attorney Gelfand that he is a witness in this

case.Nonetheless Gelfand chose to continue as counsel of record in this action and refiled the

motion for summary judgment that had been filed before the Order of Dismissal without

prejudice but which had never been reached or decided by the Court. ECF Doc No. 64

Thereafter, Gelfand filed this application.

11


In or about April 2015 Hawthorne contacted the undersigned’s office to request

representation in the action filed in Cape May County Superior Court filed by John Paff, a

wellknown citizen’s activist and advocate for Open Government having filed more than 700

Open Public Records Act requests See,

http://www.njspotlight.com/stories/14/02/26/profilethemanwhomakessuregovernmentwork

srightoutintheopen/ Paff sought disclosure of the internal affairs complaint filed by

Hawthorne and all of the related investigatory materials in the possession of theCape May

County Prosecutor’s Office.

FACTUAL STATEMENT

Facts Pertinent to the Defense Disqualification Motion

On August 29, 2011, September 23, 2011 and April 5, 2012 Defendants Groon and

DePaul filed the disciplinary complaints against Hunt which led to his termination from

employment on April 5, 2012. Captain Mayer served Hunt with all three disciplinary complaints.

Exhibit E, August 29, 2011, September 23, 2011 and April 5, 2012 Preliminary Notices of

Disciplinary Action

As early as June 2007 Hawthorne had been on the “outs” with Chief DePaul as a result of

a failed outside business venture they had (they owned and operated a Carvel/Cinnabon store

together). Thereafter, DePaul made Hawthorne into his chauffeur requiring Hawthorne to drive

DePaul to the local meetings the Chief attended; DePaul further harassed Hawthorne by treating

him poorly within the Department to the point that thenCaptain Bradley noticed and commented

to Hawthorne about it regularly. Exhibit A

12


DePaul was aware that Hawthorne and Hunt did not get along. Exhibit A Hawthorne

attributes the rocky relationship to Hunt’s perception that he would not be given a fair

opportunity in the promotional context due to his perception that Hawthorne was a friend with

DePaul because of their business venture. Exhibit A Following Hunt’s disclosure of DePaul’s

illegal wage and hour practices in December 2009, DePaul did everything in his power to

aggravate an already tense relationship between Hawthorne and Hunt. Exhibit A Hunt was

unaware that DePaul and Hawthorne actually had a bad relationship.Exhibit B Hunt erroneously

assumed that some of the bad acts he complained of as asserted in his Complaint were the doings

of Hawthorne.

For instance, as alleged in Hunt’s Complaint, on December 7, 2009 at the time of the

contract union negotiations of which Hunt was the lead negotiator, PBA Local 59 attorney,

Chuck Schlager prepared a letter addressed to Mr. Richard D’Amico, Jr., Unit Representative.

ECF Doc. No. 59, ¶¶ 2430 The letter set forth confidential strategy regarding the union’s

responses to the Borough’s contract proposals as well as insight by Schlager regarding the

proposed contract by the union. ECF Doc. No. 59, ¶¶ 2430 The December 7, 2009 letter was

intended to provide legal guidance to D’Amico and the union contract negotiation committee for

the next scheduled contract negotiation session which was scheduled for December 18, 2009.

ECF Doc. No. 59, ¶¶ 2430 The letter was intercepted but Hunt believed that it was Hawthorne

who independently intercepted the letter from the fax machine and gave it to DePaul.ECF Doc.

No. 59, ¶ 25 Not so. Exhibit A Hawthorne was given the letter by Clerk Jim Bailey who

retrieved the letter from the fax machine. Exhibit A DePaul then grabbed the letter from

Hawthorne’s hands and delivered it Borough Administrator, Kevin Yecco.Exhibit A Hawthorne

13


did nothing wrong. DePaul did. DePaul knew the letter contained confidential information and

ethically he had the obligation to not read it, not use it and to return it to its intended recipient.

Exhibit A

Indeed, the allegations in Hunt’s Complaint regarding the January 2011 retrieval of

Hunt’s service weapon, also is incorrect in that it was not Hawthorne who instigated any of it.

ECF Doc. No. 59, ¶¶ 9297 In actuality and what Hunt did not know at the time he filed his

Amended Complaint (in February 2015), was that Hawthorne objected to Mayer’s memo to Hunt

about turning over the service weapon. Exhibit A DePaul became furious with Hawthorne and

would not speak to Hawthorne for weeks. Exhibit A DePaul ordered Hawthorne to revise his

original report several times and each time Hawthorne objected. Exhibit A DePaul and

Hawthorne thereafter were in near constant arguments about actions Hawthorne knew to be

retaliatory against Hunt. Exhibit A

The above and other facts as alleged in Hunt’s Complaint as it pertains to Hawthorne

were based on Hunt’s perception, albeit mistaken perception as it turns out, that Hawthorne was

closely aligned to DePaul and Mayer. The bad acts as alleged by Hunt in his Complaint occurred,

but those bad acts were at the direction and instigation of DePaul and Mayer who held the intent

to retaliate against Hunt. Exhibit A

In early 2012, Hawthorne also began to notice other improprieties such as the fraudulent

use of grant money that was intended for Domestic Violence use, not to be used as a personal

slush fund of Mayer. Exhibit A Hawthorne told Mayer he was not going to participate in any 6

6 Hunt also suspected Mayer to be misappropriating the DV Grant monies and reported same to the Cape May County Prosecutor’s office and the Federal Justice Department. Exhibit B

14


cover ups and that he was no longer going to serve as the chauffeur to DePaul and Mayer so that

they could get intoxicated while defrauding the government. Exhibit A

Shortly after, Hawthorne got called into Mayer’s office by DePaul and in Mayer’s

presence, DePaul threatened Hawthorne’s enrollment to the FBI Leeda Training. Exhibit A

DePaul was so angry he was spitting at the mouth screaming to Hawthorne that he had no

business complaining about anything. Exhibit A DePaul advised Hawthorne that if it was a

mistake that Hawthorne had become a Lieutenant, he could fix that because he was “great at

fixing things” and said “look what I did to Hunt.” Exhibit A DePaul told Hawthorne that if

Hawthorne wanted to take him on, he’s ready because he has “enough time to retire but you

[Hawthorne] don’t.” Exhibit A DePaul ended the meeting by ripping up the FBI Training

paperwork for Hawthorne, told Hawthorne to never question the Domestic Violence Grant again

and walked out of the office. Exhibit A

It was about this time that William Blaney, attorney for Wildwood Crest for purposes of

prosecuting the disciplinary charges against Hunt, began to have meetings with Hawthorne to

review the charges in so far as Hawthorne was involved. Exhibit A The meetings to prep

Hawthorne took place in the presence of DePaul and Mayer. Exhibit A DePaul and Mayer

wanted to hear what Hawthorne had to say about the charges, not because Hawthorne was in a

“litigation control group,” but because they did not trust Hawthorne. Exhibit A Indeed,

Hawthorne was well aware that he was not a part of any decision making process as it pertained

to management let alone as it pertained to the disciplinary process against Hunt. Exhibit A

During the meetings, Hawthorne was frequently interrupted by argumentative outbursts by

DePaul who attempted to influence Hawthorne. Exhibit A

15


The disciplinary hearing for Hunt started on September 12, 2012. Mayer and Hawthorne

were not even talking at this time (unbeknownst to Hunt). Exhibit A Hawthorne had also

complained to DePaul that Mayer was rarely in the office in the summer months although he was

scheduled to work. Exhibit A Instead, Hawthorne observed Mayer working his fruit stand truck

business while on the clock for the Borough. Exhibit A

DePaul barely talked to Hawthorne except in an attempt to influence Hawthorne’s

testimony against Hunt. Exhibit A DePaul and Hawthorne were constantly fighting. Exhibit A 7

Hawthorne was on the verge of a nervous breakdown and thought his career would soon be over

because he was not going to lie. Exhibit A

Contrary to Gelfand’s unsupported supposition, Hawthorne was not “one of the three

police administrators who directed the investigation and prosecution of administrative

disciplinary charges against Plaintiff Sgt. Hunt.” (Def. Br. 34);Exhibit A It is true that “at some

point” Hawthorne began an “investigation of Defendants DePaul and Mayer” because

Hawthorne had all along suspected that DePaul and Mayer were engaging in illegal conduct and

he sought to secure proof of it. Exhibit A

Gelfand claims that the investigation by Hawthorne was “unauthorized” without

recognizing the pivotal fact that the Wildwood Crest Police Department, as small as it was, did

not have an internal affairs investigation division and that any such investigation would have to

be “authorized” by the Chief or Captainthe very men he suspected of wrongdoing. Exhibit A It

makes little sense to portray Hawthorne’s investigation as an “offthe grid” illegitimate

investigation when Hawthorne was a bona fide conscientious police officer attempting to

7 Hawthorne never testified in the disciplinary proceeding because it was terminated by the withdrawal from the Office of Administrative Law and the Civil Service Commission.

16


carefully secure proof of his suspicions in order to legitimately take his concerns to an outside

agency.

Hawthorne was so very adverse to the goal and interests of DePaul and Mayerthe sole

perpetrators of the disciplinary action against Hunt that it is disingenuous at best to characterize

Hawthorne as part of the “litigation control group.”Exhibit A

The Borough of Wildwood Crest does not nor should not have any reason to believe that

any “confidences” were shared with Hawthorne because they did not share any confidences.

Exhibit A Instead, Hawthorne made abundantly clear that he was not a part of their game plan.

He objected to their actions, eventually gathered up enough evidence and went to the Cape May

County Prosecutor’s Office to report DePaul and Mayer for criminal wrongdoing. Exhibit A

Even more insulting, bordering on purposeful misrepresentation to this Court, is the

assertion that Hawthorne in any meaningful manner participated in this civil litigation as part of

the “litigation control group.” Exhibit A Hawthorne met with Joseph Scott, the attorney retained

on behalf of the Joint Insurance Fund to represent collectively the Borough of Wildwood Crest,

Groon, DePaul, Mayer and Hawthorne in the civil litigation by Hunt initially filed in the State

Court. Exhibit A At the time, Hawthorne conveyed his thoughts to Scott that DePaul and Mayer

were wrong and many of the allegations by Hunt were accurate. Exhibit A

At that point, Scott advised Hawthorne that he needed to obtain other counsel. Exhibit A

Scott and his law firm had no business from that point forward in representing

Hawthorne. See R.P.C. 1.13 (b).

17


Hawthorne did indeed obtain other counsel but not before the State Court action was

dismissed. Exhibit A The Federal court action was filed but did not name Hawthorne nor Mayer 8

as Defendants.Exhibit A Hunt believed it sufficient to name only the policymakers on behalf of

the Borough of Wildwood Crest as Defendants, therefore Groon as the Mayor and DePaul as the

Chief of Police remained as named Defendants along with the Borough of Wildwood Crest.

Exhibit B

LEGAL STATEMENT

RPC 1.7(a) refers to “concurrent” (i.e., contemporaneous) conflicts of two sorts, derived

from former RPC 1.7(a) and (b): conflicts involving “directly adverse” client interests and

conflicts involving representation that is “materially limited” by the lawyer’s responsibilities to

others or by the lawyer’s own interests. Directly adverse situations are obvious, such as an

employer and employee.

RPC 1.7(b) allows for the curing of concurrent conflicts. The curing process involves two

elements: 1) client consent to the conflict, and 2) the lawyer’s belief that the representation will

not be impaired by the conflict.

Hanntz v. Shiley, Inc., a Div. of Pfizer, Inc.,766 F.Supp. 258, 269270 (D.N.J. 1991). In

Hanntz, the Court, adopted the ABA's Formal Opinion and held that Rule 4.2 does not prohibit

ex parte communication with former employees of a corporate adversary. Several courts

considering this precise issue have adopted the decision reached in Hanntz. See e.g., Shearson

8 Hawthorne retained attorney Alan Epstein from Philadelphia for advice after he went to the Cape May County Prosecutor with reports of criminal wrongdoing by DePaul, and Mayer. Hawthorne later retained David Meyer, Esq. to represent him with regard to the Paff v. Cape May County Prosecutor’s Office, Order to Show Cause OPRA challenge. Hawthorne terminated his relationship with attorney Meyer after Hawthorne learned that Meyer's wife was the direct secretary to Cape May County Counsel and Meyer failed to immediately disclose this to Hawthorne. Thereafter, Hawthorne contacted attorney Michelle Douglass to represent his interests in the Paff matter.

18


- Lehman Bros., Inc. v. Wasatch Bank, 139 F.R.D. 412, 418 (D.Utah 1991); DuBois v. Gradco

Systems, Inc., 136 F.R.D. 341, 345 (D.Conn. 1991); Action Air Freight, Inc. v. Pilot Air Freight

Corp., 769 F.Supp. 899 (E.D.Pa. 1991); Monsanto Co. v. Aetna Casualty Surety Co., 593 A.2d

1013, 1016 (Del.Super.Ct. 1990). Where appropriate, courts often afford litigants latitude in

conducting discovery. Reading Rule 4.2 otherwise would needlessly hamper plaintiff's factual

discovery under Fed.R.Civ.P. 26 without promoting any of the concerns Rule 4.2 seeks to

address.

"Proof of such discrimination is always difficult. Defendants of even minimal

sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating

it…”. Riordan v. Kempiners, 831 F.2d 690, 699 (7th Cir. 1987). “Although not the dispositive

factor, the fact that this is a discrimination action supports flexibility in the discovery process.”

Goff v. Wheaton Industries, 45 F.R.D. 351 (D.N.J. 1992). Prior to engaging in any substantive ex

parte communications about the "subject of the representation," counsel is obligated to determine

if the witness was in the "litigation control group" within the meaning of R.P.C. 1.13(a) or

otherwise represented by counsel. See R.P.C. 4.2 . This does not imply that an attorney must

determine whether a person is in the litigation control group or otherwise represented by counsel

before initiating contact. Michaels v. Woodland, 988 F.Supp. 468 (D.N.J.1997) To the contrary,

Judge Rosen's opinion recognizes that an attorney must first determine whether a person is in the

litigation control group or otherwise represented by counsel prior to engaging in any substantive

ex parte communications not before initiating contact with an individual.

Once the approaching attorney has ascertained that a person is not in the litigation control

group or otherwise represented by counsel, the attorney's ethical obligations are not over. In

19


other words, the attorney is not free under the RPCs to then engage in a substantive conversation

with the potential witness, especially one that is employed by an organization.

The approaching attorney must consider the requirements of R.P.C. 4.3, which further

addresses an attorney's communications with an "unrepresented person" and "employees of an

organization." Thus, assuming at this point that the attorney has established to his satisfaction

that the person is neither represented by individual counsel nor in a litigation control group, the

approaching attorney must, first and foremost, not appear "disinterested." See New Jersey Rules

Of Professional Conduct Rule 4.3 (West 2000). If the attorney "knows or reasonably should

know" that the unrepresented person misunderstands their role in the case, the attorney has an

obligation pursuant to R.P.C. 4.3 to correct the misunderstanding. See Id. Furthermore, if the

person to whom the attorney is speaking is an employee of an organization (but not a member of

the litigation control group), the attorney must again exercise reasonable diligence in

determining whether the person is actually represented by the organization's attorney pursuant to

1.13(e) or has a right to such representation. See Id. If the approaching attorney ascertains that

the person is neither actually represented by the organization's attorney nor has a right to such

representation, the attorney has an obligation to "make known to the person that insofar as the

lawyer understands, the person is not being represented by the organization's attorney." Id.

"The underlying principle in considering motions to disqualify counsel is safeguarding

the integrity of the court proceedings; the purpose of granting such motions is to eliminate the

threat that the litigation will be tainted."Lamb v. Pralex Corp., 333 F. Supp. 2d 361, 363, 46 V.I.

213 (D.V.I. July 12, 2004)(citing, Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L. Ed.

158 (1932)).

20


-

- -

Motions to disqualify are viewed with disfavor as disqualification is a drastic remedy

with often farreaching, sometimes devastating implications. Alexander v. Primerica Holdings,

Inc., 822 F.Supp. 1099, 1114 (D.N.J.1993). A party seeking to disqualify counsel carries a heavy

burden and must satisfy a high standard of proof. Id.

The Court of Appeals for the Third Circuit has noted that "[a]lthough disqualification

ordinarily is the result of a finding that a disciplinary rule prohibits an attorney’s appearance in a

case, disqualification never is automatic." U.S. v. Miller, 624 F.2d 1198, 1201 (3d Cir.1980).

The question of whether disqualification is appropriate is committed to the sound discretion of

the district court, which "means that the court should disqualify an attorney only when it

determines, on the facts of the particular case, that disqualification is an appropriate means of

enforcing the applicable disciplinary rule." Id.Wyeth v. Abbott Laboratories, 692 F.Supp.2d 453

(D.N.J. 2010).

Indeed, as other courts in this district have stated, "[m]otions to disqualify are viewed

with `disfavor' and disqualification is considered a `drastic measure which courts should hesitate

to impose except when absolutely necessary.'" Carlyle Towers, 944 F.Supp. at 345 (quoting

Alexander v. Primerica Holdings, Inc., 822 F.Supp. 1099 1114 (D.N.J.1993)).

"Disqualification questions are intensely factspecific, and it is essential to approach such

problems with a keen sense of practicality as well as a precise picture of the underlying facts."

Carlyle Towers, 944 F.Supp. at 345 (quoting Gould, Inc. v. Mitsui Mining & Smelting Co., 738

F.Supp. 1121, 1124 (N.D.Ohio 1990)). "Because disqualification during pending litigation is an

extreme measure, courts must closely scrutinize the facts of each case to avoid injustice." In re

Cendant Corp. Securities Litigation, 124 F. Supp 2d 235, 249 (D.N.J. 2000). In ruling on such a

21


motion, courts should "consider the ends that the disciplinary rule is designed to serve and any

countervailing policies, such as permitting a litigant to retain the counsel of his choice and

enabling attorneys to practice without excessive restrictions." Miller, supra, 624 F.2d at 1201.

Notably, "ethical rules should not be blindly applied without consideration of the relative

hardships." Carlyle Towers, 944 F.Supp. at 345 (quoting Gould, 738 F.Supp. at 1124); see also

Cendant Corp., 124 F.Supp.2d at 249 ("courts must closely scrutinize the facts . . . [and] balance

the hardships to the client whose lawyer is sought to be disqualified against potential harm to the

adversary should the attorney be permitted to proceed.").

A court must "exercise extreme caution not to act under the misguided belief that

disqualification raises the standard of legal ethics and the public's respect; the opposition effect is

just as likely—encouragement of vexatious tactics, which increase public cynicism about the

administration of justice." Id. (quoting Gould, 738 F.Supp. at 1126).

In this case, Defendants are unable to identify any confidential information accessible to

Hawthorne that could be used in the Hunt case. There simply is no violation of R.P.C.1.7.

Defendants cannot clearly and precisely identify the “significant risk that the representation of

one or more clients (Hunts) will be materially limited by the lawyer's responsibilities to another

client (Hawthorne), a former client (not applicable), or a third person (Borough of Wildwood

Crest, DePaul and Mayer) or by a personal interest of the lawyer (not applicable),” because

there is none.

In this matter, there is not a significant risk that the continued representation of the Hunts

will be materially limited by the undersigned’s responsibilities to Hawthorne or to the

Defendants. Hawthorne is not and never was a member of the Defendants’ “litigation control

22


group.” The “litigation control group” is defined at R.P.C. 1.13. Hawthorne is very obviously not

a member of the “litigation control group.” He was not responsible for the discipline or

termination of Tom Hunt (the subject matter of this litigation and that of the disciplinary

administrative matter). Hawthorne was not only not significantly involved in the determination

of the organization's legal position here, he was significantly opposed to its position. There was

therefore no breach of duty under R.P.C. 4.2

Moreover, the undersigned took every precaution to ensure compliance with the RPCs.

Hawthorne contacted the undersigned. The undersigned did not contact nor reach out to

Hawthorne.

Hawthorne sought out the representation by the undersigned because he believed that she

was best suited to represent him given the fact that she understood the myriad of facts and

nuances of these interrelated matters. What’s more, after Hawthorne contacted the undersigned, a

careful and thorough vetting took place to determine whether there were any possible conflicts.

Hawthorne unmistakably confirmed that he was not in the litigation control group at any time

relevant to the Hunt matters and he further confirmed that he was not in possession of any

general or specific confidences that would compromise the position of the Defendants.

Finally, R.P.C. 8.4 is not implicated because the undersigned did no prejudice

administration of justice. There has been no misrepresentation of the status of this or any other

matter, no unreasonable delay caused by the undersigned, no dishonesty or fraud and no attempt

to conceal nor attempt to violate the rules of professional conduct or ethics.

It is disconcerting to respond to the within disqualification application in the face of the

irony that the conflict and violation of the RPCs poses for Defense counsel. Mr. Gelfand’s

23


continued representation of any of the Defendants is especially troublesome because of the

ramifications presented by the actions his clients DePaul and Mayer in falsifying evidence in this

case which is obviously and painfully a conflict to that of his legal obligations to his client, the

Borough of Wildwood Crest. The conflict presented by Mr. Gelfand’s participation in the

criminal investigation into the conduct of DePaul and Mayer making him a fact witness cannot

square with his legal obligations to all three defendants in this case.

CONCLUSION

In any event, it is respectfully requested that the Court deny Defendants’ motion to

disqualify and leave for another day the ethical considerations associated with Mr. Gelfand's

continued representation of any and/or all three defendants in this case.

Date: May 28, 2015 Respectfully submitted,

/s/ Michelle J. Douglass

Michelle J. Douglass, Esq.

24


1

[Doc. No. 69]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE THOMAS J. HUNT and BARBARA HUNT, Plaintiffs, v. BOROUGH OF WILDWOOD CREST, et al., Defendants.

Civil No. 12-6887 (JEI/AMD)

ORDER ON INFORMAL APPLICATION

This matter comes before the Court by way of

Defendants Borough of Wildwood Crest, Mayor Carl Groon, Chief of

Police Thomas DePaul, and Captain David Mayer’s informal letter

application for an extension of time to file a reply brief to

the pending motion to disqualify [Doc. No. 67]. (See Letter

[Doc. No. 69].) Plaintiffs Thomas J. Hunt and Barbara Hunt

(hereinafter, “Plaintiffs”) object to the extension, and

Defendant Dr. Gary M. Glass takes no position on the requested

extension. The Court conducted a telephone status conference on

the record on June 8, 2015 and noted the following appearances:

Michelle Douglass, Esquire, appearing on behalf of Plaintiffs;

Todd J. Gelfand, Esquire appearing on behalf of Defendants


2

Borough of Wildwood Crest, Mayor Carl Groon, Chief of Police

Thomas DePaul, and Captain David Mayer; and Jennifer Cooley,

Esquire, appearing on behalf of Dr. Gary M. Glass. For the

reasons set forth on the record, and for good cause shown,

IT IS on this 8th day of June 2015:

ORDERED that Defendants Borough of Wildwood Crest,

Mayor Carl Groon, Chief of Police Thomas DePaul, and Captain

David Mayer’s informal letter application for an extension of

time to file a reply brief [Doc. No. 69] shall be, and is

hereby, GRANTED; and it is further

ORDERED that Defendants Borough of Wildwood Crest,

Mayor Carl Groon, Chief of Police Thomas DePaul, and Captain

David Mayer shall file by no later than June 15, 2015 any reply

brief to the pending motion to disqualify [Doc. No. 67]; and it

is further

ORDERED that any sur-reply brief to the pending motion

to disqualify [Doc. No. 67] shall be filed by no later than June

22, 2015.

s/ Ann Marie Donio ANN MARIE DONIO UNITED STATES MAGISTRATE JUDGE cc: Hon. Joseph E. Irenas


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