Legal Memorandum: Right to Freely Choose Counsel in NJ

Issue: Under New Jersey law, does a person’s right to freely choose counsel allow them to choose an attorney who previously represented a governmental entity?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Right to choose counsel; High standards of the legal profession; Burden
Jurisdiction: New Jersey
Cited Cases: 109 N.J. 201; 386 N.J. Super. 71
Cited Statutes: None
Date: 03/01/2015

Generally a person seeking legal counsel has a “right freely to choose” his or her counsel.  City of Atlantic City v. Trupos, 201 N.J. at 462 (citing Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988)).  That right must be balanced against the interest in maintaining high standards of the legal profession.  Id.  In striking that balance, the person’s right to choose counsel is outweighed by an ethical requirement that disqualifies the attorney.  Id.  Thus, on a motion to disqualify, the party seeking disqualification bears the burden of showing that it was represented by the attorney and that the current litigation is materially adverse to that party/former client.  Id. (citing Dewey, 109 N.J. at 221-22).  If that burden is met, the attorney and current client must show that the matters are not the same or substantially related.  Id. The burden of persuasion remains on the moving party.  Id. (citing N.J. Div. of Youth & Family Servs. v. V.J., 386 N.J. Super. 71, 75 (Ch. Div. 2004)).


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