O Builders & Associates, Inc. v. Yuna Corporation Of Nj

19 A.3d 966 (2011)

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Nature of the Case

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Facts

P seeking payment for construction renovation and remodeling work performed in a restaurant owned by D filed suit against D. D moved to disqualify P's counsel, Peter Y. Lee, Esq. It turns out that eighteen months earlier, the principal of D, Mrs. Kay Kang had consulted with Lee. Lee met with Mrs. Kang at Mrs. Kang's restaurant, the Baden Baden, in Palisades Park. According to Mrs. Kang, she consulted Lee 'concerning pending litigation and business matters.' She explained that 'there were several litigation matters left behind by my late husband, James Park, relating to two restaurants operating under the 'Baden Baden' trade name.' Her entire description of the substance of that consultation was scant: 'At that time, we discussed extensively about my business history and the pending legal disputes. . . . We discussed various aspects of the Baden Baden business, including its history and its then-present state of affairs, confidentially.' Lee recalls that consultation differently. He states that Mrs. Kang met to discuss problems she was then having with present defense counsel, Michael S. Kimm, Esq., in connection with his handling of and representation in [a specific matter, titled the Koryeo Corp. case].' Mrs. Kang asked that he substitute for Kimm as her counsel in the Koryeo Corp. case, which was scheduled for trial in the Superior Court in one week. Lee 'insisted that [he] could not make any decision until [he] reviewed the files and the court adjourned the trial date for at least 30 days.' He states that 'Mrs. Kang shared no privileged or confidential information with [him] concerning her or defendant's 'business history,' other 'pending legal disputes,' 'financial information' or 'then-present state of affairs[.]'' He reasons that the limitations on their discussions were 'perhaps because all communications admittedly took place in the presence of a mutual friend and third-party, Dr. Lee, and the purpose of our meeting-my representation of Mrs. Kang in the [Koryeo Corp. case]-did not require such information.' The very next day, on February 5, 2008, Lee wrote to Mrs. Kang and declined to represent her in the Koryeo Corp. case for three distinct reasons: (1) the trial was scheduled for February 11, 2008 and already had been adjourned twice, rendering a third adjournment unlikely; (2) although the lawsuit was more than a year old, no discovery -- which he described as 'essential in a litigant's timely and efficient preparation for trial' -- had been conducted; and (3) there was a fundamental deficiency in the complaint, as all available causes of action had not been pled. Other than relating general topics, Dr. Lee's certification contains no specifics as to what was said or discussed. Lee denies anything further of substance was discussed. The trial court denied D's motion to disqualify. The Appellate Division affirmed the denial. It reasoned the two matters are completely unrelated and Kang does not claim that those 'then-present affairs' had anything to do with the present dispute nor does she explain how the allegedly confidential information could be used against her or her company in the instant litigation. D appealed.