                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2403-13T4



ELIZABETH A. COMANDO,                       APPROVED FOR PUBLICATION
individually and derivatively
                                                 June 24, 2014
on behalf of 10 CENTRE DRIVE, LLC,
                                              APPELLATE DIVISION
      Plaintiff-Appellant,

v.

MARY F. NUGIEL1 and RCP MANAGEMENT
COMPANY,

      Defendants-Respondents,

and

PRIDE CONSTRUCTION SERVICES, LLC,2

     Defendant.
___________________________________

          Argued May 7, 2014 - Decided June 11, 2014

          Before Judges Lihotz, Maven and Hoffman.

          On appeal from the Superior Court of New
          Jersey, Law Division, Bergen County, Docket
          No. L-5130-13.




1
     The record includes references to defendant Nugiel's former
name, Mary Faith Radcliffe, as she married on September 9, 2011.
2
     Defendant Pride Construction Services is not participating
in this appeal.
            Kevin J. O'Connor argued the cause for
            appellant   (Peckar    &   Abramson,    P.C.,
            attorneys; Mr. O'Connor, on the brief).

            Robert J. Feinberg argued the cause for
            respondents (Giordano, Halleran & Ciesla,
            P.C.,   attorneys;  David   C.  Roberts and
            Michael T. Strouse, on the brief).

      The opinion of the court was delivered by

LIHOTZ, J.A.D.

      On   our   leave   granted,   plaintiff     Elizabeth    A.   Comando,

individually and derivatively on behalf of 10 Centre Drive, LLC

(10   Centre),   a   corporation    she   owns   with   defendant    Mary   F.

Nugiel, appeals from a November 22, 2013 interlocutory order,

denying her motion to disqualify Norris McLaughlin & Marcus,

P.A. (NMM) from providing legal representation to defendants.

Plaintiff argues she was a former client, as NMM provided legal

representation to her in acquiring and securing financing of

real estate.     Further, she alleges she was wrongfully denied the

right to exercise a promised option to acquire an                   ownership

interest    in   defendant   RCP    Management     Company    (RCP),    which

maintained its headquarters in 10 Centre's realty.                  Finally,

Comando asserts NMM's current representation of defendants is

adverse to the interests of 10 Centre, which is also a current

client, noting NMM additionally provided prior representation

including preparation of the twenty-year lease agreement between

RCP, as tenant, and 10 Centre, as landlord.



                                     2                               A-2403-13T4
    Since this matter was argued on May 7, 2014, we issued our

opinion in a related appeal that addressed another provision of

the same order.      Comando v. Nugiel, A-2070-13 (App. Div. May 22,

2014).    In that matter, we determined the provisions of the 10

Centre   Operating     Agreement        required    a   form     of   alternative

dispute resolution once Comando and Nugiel were deadlocked over

whether to sell the realty owned by 10 Centre and leased by RCP

and defendant Pride Construction Services.                Id. at 2.

    Thereafter, we received correspondence, issued on behalf of

NMM by substituted counsel, advising that "as of May 20, 2014,

the Norris McLaughlin & Marcus firm has ceased rendering legal

services to the [d]efendants as it relates to this action in its

entirety."     This materially changed the position NMM previously

had taken, as expressed in an email communication from NMM dated

March    13,   2014,   to    Comando's         counsel,     which     advised      of

substituted    counsel      undertaking        representation,        but     stated

"[NMM]   reserve[d]    the      right     to   continue     to   provide       legal

representation to all of the [d]efendants in this matter, and

[NMM is] not representing . . . that [it would] never have

another conversation with [Nugiel] about this case, or about

other matters."

    Defendants       maintain     that       the   substitution       of    counsel

coupled with the recent representations that NMM's legal advice




                                         3                                  A-2403-13T4
on issues in this litigation has ceased moot Comando's arguments

raised on appeal.          Comando disagrees and presses her claim of

disqualification.         She identifies findings by the motion judge,

which, she asserts, if not reviewed and reversed, will adversely

affect the ongoing litigation.           Specifically, Comando argues the

judge     erroneously       found      NMM     had     not       provided        legal

representation to her.             She also asserts that despite finding

NMM represented 10 Centre, the judge improperly rejected the

asserted corporate derivative claims and suggested instead that

the   complaint     alleges       individual    claims    by     Comando    against

Nugiel.

      Following our review, we conclude the record is far too

limited and contains material factual disputes making this court

unable to discern the full extent and nature of NMM's prior

legal   representation       of    Comando,    which   could     only     have    been

determined    following       an    evidentiary      hearing.       The     evidence

certainly shows NMM provided limited legal services to her and

also rendered extensive legal services to 10 Centre, as well as

RCP and Nugiel.      Moreover, in at least one specific transaction,

that is the negotiation of the RCP lease for realty owned by 10

Centre, NMM acted as counsel for the landlord, 10 Centre, and

the tenant, RCP.         The terms of and parties' compliance with that

lease   are   now   at    issue.      Accordingly,       NMM's    continued       dual




                                        4                                   A-2403-13T4
representation of providing legal services to 10 Centre and, up

until recently, rendering legal advice to RCP to defend the

claims raised in this complaint, raises a conflict prohibited by

the Rules of Professional Conduct (RPC).                              Further, the trial

judge erroneously rejected the derivative claims by incorrectly

determining       the      issues       raised           claims       held        by     Comando

individually.

    At this juncture, NMM has removed itself from providing

legal   representation          to    any    party       regarding         this   litigation.

However, with respect to the derivative claims advanced by 10

Centre,     NMM     has     a        continuing          conflict          prohibiting         its

representation of the corporation, while also representing RCP,

which     must     be     waived.             Regarding             Comando's          claim    of

disqualification based on her prior representation, although we

conclude    the    judge    inaccurately               found    NMM    provided        no   legal

representation to her, the record does not allow this court to

fully   assess     the     extent      and    nature           of   that    representation.

Nevertheless,      NMM's     complete        withdrawal             renders    the      question

moot.

                                             I.

    These        facts    are    found       in    the     motion      record.           Comando

commenced employment with RCP on March 1, 2004.                             In exchange for

Comando's     employment         efforts          to     grow       RCP's     business,        she




                                              5                                          A-2403-13T4
received a base salary and additional compensation of one-third

of the net profits generated in "the North Region," to which she

was assigned.      Id. at 3.       Comando also understood she would be

given the opportunity to obtain an ownership interest in RCP.

Ibid.     She contends the parties entered into a Client Purchase

Option Covenant, setting forth the terms upon which she could

purchase the North Region portfolio in the event she or RCP

terminated her employment.

    In 2009, Comando was promoted to Senior Vice President, and

on April 29, 2011, she was named a "Principal" of RCP.                         Ibid.

Comando    avers   that     in     the    ensuing       years     she    contributed

significantly to RCP's expansion in the region and its resulting

increases in revenue.

    In June 2010, Nugiel retained NMM "to represent RCP in

general    corporate     matters    arising      from    time-to-time."        NMM's

June 28, 2010 engagement letter, authored by Jesse P. Nash,

acknowledged NMM had been retained "to represent [RCP] as an

entity"    "for    the    purpose        of:    reviewing       [RCP's]     employee

manual/handbook     and    such    other       legal    matters    for    and/or   on

behalf of [RCP] as may arise from time[-]to[-]time."                      The letter

urged "any shareholder, director, member, partner or officer"

with legal questions regarding particular rights or obligations

to obtain separate counsel.              Nash's letter concluded: "We will




                                          6                                 A-2403-13T4
not represent the interests of any one individual in any way

that   is   in   conflict      with   the       interests        of    the    entity     as   a

whole."

       In early 2011, Comando and Nugiel formed 10 Centre as a

holding company to acquire and manage real property that would

become RCP's headquarters.              According to Nash, Nugiel requested

he and NMM provide legal representation in "(1) the formation of

the limited liability company, (2) preparation of the RCP lease

for the property, (3) preparation of an operating agreement for

[10 Centre], and (4) [assistance] with legal issues surrounding

obtaining the financing needed by [10 Centre] to purchase the

new    headquarters"      for    RCP.           There      is    no     mention    of     the

preparation or existence of a new engagement letter for these

new legal services and nothing to explain what role Comando had

in engaging NMM.

       NMM incorporated 10 Centre and served as its registered

agent.      In preparation of 10 Centre's operating agreement, Nash

acknowledged     he     conducted       conference         calls       with     Nugiel    and

Comando,     summarized     provisions          of   the    drafted       documents,      and

emailed      a   memo     to     both       Nugiel         and        Comando     regarding

modifications of the agreement terms.

       Nash also assisted with the preparation, modification and

execution of an "agreement for purchase and sale" of the realty




                                            7                                      A-2403-13T4
ultimately     acquired   by     10    Centre.          In   the    purchase   of    the

realty, Nash assisted with the preparation, review and execution

of   several   agreements       related     to    the    intricate      multi-million

dollar    acquisition     and    the    financing        and   re-financing       of    a

bridge loan.     It is unclear whether he provided individual legal

advice to Nugiel regarding this transaction, while also acting

as 10 Centre's counsel.               Nash also drafted a lease agreement

allowing RCP to lease the property acquired by 10 Centre for

twenty years at a flat rent.

      In this regard, Nash insists he took direction from Nugiel

and "never gave [] Comando any personal advice or counsel on

those issues."     This assertion contradicts his claim of serving

as counsel for the corporation not its members and also his

written representations contained in an opinion letter delivered

to   TD   Bank    in    respect        of   the    highly          complex   financing

arrangement.     In issuing his legal opinion, Nash stated NMM

            acted as special counsel to 10 Centre Drive,
            LLC    (the   "Borrower"),   RCP    Management
            Company, Inc. (the "Equity Guarantor") and
            Mary Faith Radcliffe and Elizabeth Comando
            (each,    an   "Individual   Guarantor"    and
            collectively, the "Individual Guarantors")
            in connection with the closing . . . of a
            $1,500,000   mortgage   loan   from   you   to
            Borrower (the "First Mortgage Loan") and a
            $350,000 bridge loan from you to Borrower
            (the "Bridge Loan, and together with the
            First Mortgage Loan, the "Loan Facilities").




                                            8                                  A-2403-13T4
    NMM    maintains   the   opinion         letter    does     not   evince   legal

representation was provided to Comando.                 Nash alleges he fully

informed Comando he was not her lawyer, as reflected in his memo

accompanying   transmittal        of    10     Centre's       proposed   operating

agreement, in which he stated:

                As an initial matter (and as you both
           know) I must stress that I represent
           [Nugiel] and RCP [] in several matters.    I
           have drafted the attached based on your
           instructions,   but  I   do   not  represent
           [Comando] in connection with these matters.
           [Comando], this operating agreement is a
           complicated document, I advise you to obtain
           separate counsel to advise you and advocate
           for your interests in connection with the
           attached. Review of this cover note is not
           a substitute for a careful review of the
           attached with your own counsel.   Please let
           me know if you would like me to refer an
           attorney to you.

                . . . .

                I have received a lot of feedback from
           you both, and I attempted to harmonize all
           of this feedback into a single set of terms,
           but this was not always possible.

Nash certified that at the time he sent this document, Comando

"clearly   communicated      to        [him]    that      she    understood      and

acknowledged the fact that [Nash] was not acting as her counsel

in connection with the subject series of transactions."                        Nugiel

also certified to her recollection of Nash's statements in an

unspecified phone conference that Comando "was not represented




                                         9                                 A-2403-13T4
by   NMM   in    connection        with   the    formation    of   10   Centre[],     or

preparation of its operating agreement."

       Comando disputes Nash's assertions of limited involvement

on her behalf.           She maintains she and Nugiel were "sitting at

the table" with Nash "when 10 Centre was formed and the lease

was negotiated and filed."                 On or about July 5, 2011, Nash,

Nugiel and Comando discussed the initial draft of the operating

agreement and its terms during a conference call.                       In an e-mail

dated July 6, 2011, Nash sent the updated version to both Nugiel

and Comando, requesting they review the document and provide him

with   any      further     comments.       Comando    sent    Nash     her   personal

financial statement to be used when negotiating the mortgage and

requested       he   keep    the    documents     confidential.         Further,     she

relied     on    NMM's      July   19,    2011    opinion    letter     to    TD   Bank,

including several representations that applied to her.                             Among

these were the loan documents "constituted a legal, valid and

binding obligation of each [o]bligor" and that the execution of

the document "by each [o]bligor . . . d[id] not violate . . .

any applicable judgment, order, writ, injunction or decree known

to [NMM] of any court or other governmental authority."                        Comando

also supplied a September 14, 2011 email sent regarding an SBA

loan for 10 Centre, in which she identified Nash as her counsel.




                                            10                                 A-2403-13T4
       Nugiel and Comando's relationship deteriorated.                                 Comando

alleges difficulties and disagreements arose between Comando and

Nugiel regarding RCP's finances and Nugiel's absence from the

office.       Comando        resigned        from     RCP    on    April    1,     2013.      She

thereafter initiated this litigation.

       By letter dated June 18, 2013, Comando's counsel expressed

his    position          "[Nash]        and         [NMM]     are        conflict[ed]        from

representing any party in relation to these disputes[.]"                                      She

thereafter moved for NMM's disqualification, alleging violations

of RPCs 1.7, 1.9 and 3.7.                    Following argument, the motion judge

rejected      Comando's        assertions,           finding       she    "never    sought     or

received any legal advice from [NMM] in connection with the

issuance      of   the       opinion      letter"       to    TD    Bank    and     emphasized

Comando was "advised repeatedly throughout the process of [10

Centre's]      formation          and    financing          that    she    was   [not]      [sic]

represented        by    [NMM]      and       that     she     should      retain     her     own

attorney."          The        judge         also     rejected        Comando's       asserted

derivative     claims        on    behalf      10     Centre,       concluding      they     were

direct    claims        by   Comando         against    Nugiel       because      Comando     and

Nugiel were 10 Centre's sole shareholders.

       Comando moved for interlocutory review.                             We granted leave

to    allow   consideration             of    the    request       for    disqualification.

While the matter was pending, Comando moved to supplement the




                                                11                                     A-2403-13T4
record      stating      documents    finally        released     by    defendants        in

compliance      with      discovery    demands       supported         her    request     to

reverse the trial court's order.                  She attached emails reflecting

NMM billing statements sent to her and Nugiel for fees rendered

for the real estate matter, including RCP's lease, billed to 10

Centre for payment; NMM trust account ledgers showing monies

paid by Comando and 10 Centre apparently for legal services

rendered to RCP; emails discussing substantive provisions of the

financial documents, including the need to execute a release and

Nash's opinion about doing so; correspondence from NMM to third

parties confirming its representation of 10 Centre; and emails

from Nash to Comando discussing 10 Centre's tax appeals.

        Defendant opposed the motion as moot and, alternatively,

cross-moved to supplement the record with the email from Nash

stating NMM was no longer trial counsel for defendants in the

litigation.        The email also advised NMM "reserve[d] the right to

continue      to    provide     legal        representation       to         all   of    the

[d]efendants       in    this   matter,      and    [NMM   was]    not       representing

.   .   .   that   [it    would]     never    have    another     conversation          with

[Nugiel] about this case, or about other matters."3



3
     The inclusion of references to these materials signals our
decision to grant the motion and cross-motion to supplement the
record.



                                             12                                    A-2403-13T4
                                         II.

      The   review     of   a   motion   for    disqualification       requires    a

court "to balance competing interests, weighing the 'need to

maintain the highest standards of the profession' against 'a

client's right to freely choose his [or her] counsel.'"                      Dewey

v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988) (quoting

Gov't of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir.

1978)).     "[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.'"        Ibid. (quoting Reardon v. Marlayne, Inc., 83

N.J. 460, 477 (1980)).             Our review of "an order granting or

denying a disqualification motion invokes . . . de novo plenary

review . . . ."        Twenty-First Century Rail Corp. v. N.J. Transit

Corp., 210 N.J. 264, 274 (2012).

      Comando         identifies         several          bases   to      support

disqualification.       We start with her argument that NMM's ongoing

representation of 10 Centre precluded its representation of RCP

in   any    adverse    transaction.           RPC   1.7    addresses   concurrent

conflicts of interests and provides in pertinent part:

             (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:




                                         13                               A-2403-13T4
         (1) the representation of one client will be
         directly adverse to another client; or

         (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.

         (b) Notwithstanding the    existence of a
         concurrent  conflict of     interest  under
         paragraph (a), a lawyer    may represent a
         client if:

         (1) each affected client gives informed
         consent, confirmed in writing, after full
         disclosure and consultation. . . . When the
         lawyer represents multiple clients in a
         single   matter,   the   consultation  shall
         include   an   explanation  of   the  common
         representation and the advantages and risks
         involved;

         (2) the lawyer reasonably believes that the
         lawyer will be able to provide competent and
         diligent representation to each affected
         client;

         (3) the representation is not prohibited by
         law; and

         (4) the representation does not involve the
         assertion of a claim by one client against
         another client represented by the lawyer in
         the same litigation or other proceeding
         before a tribunal.

    This rule is easily applied in the context of litigation.

See Kevin H. Michels, New Jersey Attorney Ethics – The Law of

New Jersey Lawyering, § 19:2-1 at 407 (2012) ("RPC 1.7(a)(1)

clearly prohibits the representation of opposing parties in the




                              14                        A-2403-13T4
same    litigation.").          See        also   N.J.      Advisory         Comm.       on

Professional      Ethics     Op.      362       (1977)     (holding          a    lawyer

representing both a union and an individual member of that union

had to withdraw from representation of both clients upon the

individual's filing a grievance against the union).                     We conclude

the    rule's   proscriptions       must    equally      apply   to   transactional

matters, and a concurrent conflict of interest arises when "the

representation of one client will be directly adverse to another

client."    RPC 1.7(a)(1).

       "RPC 1.7 is rooted in the concept that '[n]o man can serve

two masters,' Raymond L. Wise, Legal Ethics 272-73 (1970), and,

it has been suggested that employment should be declined if

there is a question whether the representation will create an

adversity of interest between two clients."                  State ex rel. S.G.,

175 N.J. 132, 139 (2003).           This principle applies here.

                                           A.

       Focusing on the corporate entities, NMM is counsel to RCP

and 10 Centre.      There is no engagement letter explaining NMM's

role    regarding   10     Centre     or    authorizing      the      firm       to    take

direction from Nugiel when acting on behalf of 10 Centre.                               The

twenty-year lease presents adverse interests between Nugiel and

RCP on one hand, and 10 Centre on the other, because lease terms

favorable to RCP may well be detrimental to 10 Centre.                                There




                                           15                                    A-2403-13T4
was no evidence of a waiver by all clients when preparing the

lease between 10 Centre and RCP, which would include Comando who

was a fifty percent member of 10 Centre.            See In re Dolan, 76

N.J. 1, 11, 13 (1978) (finding representation of a mortgagor and

mortgagee in a transaction is a direct conflict of interest

requiring informed consent of the clients, particularly in light

of "the possibility that as between buyer and developer-seller

there   may   ripen   some    disagreement    respecting     the   physical

condition of the premises").

    Further, the documents submitted strongly suggest Nash took

direction only from Nugiel on these matters, but she was one of

the two equal members of 10 Centre.           The complaint challenges

Nugiel's actions as detrimental to the interest of 10 Centre and

as favoring those of RCP.       It also asserts the rent paid by RCP

was not based on fair market value, a claim that appears to

strike at the heart of the potential conflict of interest and

implicates    financial      detriment   to    10   Centre     which     has

significant debt service that must be met.          See Michels, supra,

§ 19:3-1 at 440 ("RPC 1.7(a)(2) may be implicated when a lawyer

proposes to represent two or more persons with an interest in

the same object, occurrence, or transaction.").

    Also, allegations such as minority shareholder oppression,

wrongful disposition of excess funds received by 10 Centre in




                                    16                             A-2403-13T4
the SBA loan closing, and diversion of profits based on Nugiel's

refusal to release the details of 10 Centre's financial affairs,

are problematic to NMM which purports to currently represent 10

Centre, as well as RCP and Nugiel.4               "RPC 1.7 reflects 'the

fundamental understanding that an attorney will give complete

and undivided loyalty to the client [and] should be able to

advise the client in such a way as to protect the client's

interests,    utilizing     his   professional     training,            ability   and

judgment     to    the   utmost.'"        J.G.   Ries        &    Sons,    Inc.      v.

Spectraserv, Inc., 384 N.J. Super. 216, 223 (App. Div. 2006)

(alteration in original) (quoting State ex rel. S.G., supra, 175

N.J. at 139).

    Prior     to   its   recent   withdrawal     from    all      representation,

NMM's role in this litigation as counsel for Nugiel and RCP

against Comando and 10 Centre presented prima facie evidence of

a concurrent conflict of interest, waivable only by informed

written consent, which has never been presented.                      RPC 1.7(b)(1).

Further,   NMM's     continued    representation        of       10    Centre   in   a

transactional capacity will not diminish the adverseness between

RCP and 10 Centre.          Nugiel, in her corporate capacity as a

member of 10 Centre, is alleged to have wrongfully controlled 10

4
     NMM currently provides legal representation to 10 Centre in
its general business affairs, is involved in pending tax
appeals, and acts as its registered agent.



                                     17                                     A-2403-13T4
Centre's financial affairs to aid RCP and harm 10 Centre.                                        NMM's

legal     representation           of   Nugiel          and    RCP        impinges        upon     its

allegiance      to     protect          10    Centre's            interests          raising        "a

significant risk that the representation of one or more clients

[would] be materially limited by the lawyer's responsibilities

to another client."                NMM's loyalty to Nugiel and RCP prefers

their interest to the competing interests of 10 Centre.                                           This

may not continue.        RPC 1.7(a)(2).

       The    motion    judge's         characterization                 of    the     derivative

claims as a "red herring" is erroneous.                              He failed to analyze

the    claims   and     their       impact     on       10    Centre,         as    well    as    its

creditors.      The complaint asserts Nugiel breached her fiduciary

duty    in   carrying        out    her      responsibilities                 as    "an    officer,

director     and/or     shareholder          of     .    .    .     10    Centre      [],"       which

resulted in the failure to further the interests of 10 Centre in

favor   of    RCP;     the    improper        management            and    operation        of    the

corporation     and     its    finances;          and     the       improper        diversion      of

funds   away    from    10    Centre         "for       personal         and/or      non-business

purposes."       The action by Nugiel on behalf of 10 Centre, if

proven,      would    reveal       actual      harm          done    to       the    corporation,

impinging its ability to operate and satisfy its debts.

       We reject as unpersuasive defendants' analogy between the

facts at hand and those in Kira Inc. v. All Star Maint. Inc.,




                                              18                                           A-2403-13T4
267 Fed. App'x 352 (5th Cir. 2008).                   There, in concluding no

conflict of interest arose in rendering legal services to the

parties, the court relied directly on the jury verdict rejecting

as meritless the plaintiff's underlying claims.                  Id. at 356.     We

cannot do the same in this newly commenced matter.

    More apt to these facts is the Court's holding in In re

Berkowitz, 136 N.J. 134 (1994).                 In that matter, an attorney

represented     a   client    seeking       a    zoning    variance    on      land

contiguous to the property of a client represented by another

attorney at the firm.        Id. at 135-36.           The second client would

be adversely affected if the first client's application were

granted.     Id. at 135.     The Court reprimanded both attorneys, who

it found failed to fully disclose the potential conflict to the

clients, noting "the decision of whether to oppose the proposed

zoning would obviously create a division of loyalties between

[the attorneys] and their clients."              Id. at 144.

    We conclude the motion judge erred in rejecting Comando's

derivative     claims   on    behalf    of       10    Centre,    without      even

considering the need for further development of the facts and

circumstances surrounding her assertions, along with the nature

of NMM's actual representation of these clients.                  Further, NMM's

ongoing representation of Nugiel individually, RCP and 10 Centre




                                       19                               A-2403-13T4
on   a    transactional       basis        presents     a     concurrent      conflict        in

contravention of RPC 1.7(a).

                                              B.

         The record is less clear on the claims of conflict asserted

by   Comando       individually.            Contrary        to      the    motion       judge's

statement,        NMM    provided     at     least      limited       representation          to

Comando in the course of the loan transactions.                               NMM does not

dispute     it    represented        itself        to   the      lenders     as     Comando's

counsel     for    the     purpose    of     effectuating         the      closing      of   the

identified        loans.       NMM's        attempts        to    minimize        the     facts

regarding this representation are rejected.                               By their nature,

opinion letters are instruments of negotiation "made to induce

reliance," such that the law recognizes a duty owed to third

persons in preparing such documents.                        Banco Popular N. Am. v.

Gandi,      184    N.J.    161,      183     (2005).          See     also    Petrillo        v.

Bachenberg, 139 N.J. 472, 485 (1985).

         "[I]f the prior and the subsequent matters are indeed the

same, the representation, absent written consent of the former

client, is prohibited."              Twenty-First Century Rail Corp., supra,

210 N.J. at 276 (holding RPC 1.9(a) prohibited representation

where an opinion letter reflected counsel's awareness of the

adverseness of the current and former clients' positions in the

same dispute).           Comando as a former client bears the burden of




                                              20                                     A-2403-13T4
production of showing "that by application of RPC 1.9 [she]

previously       had     been    represented          by     the    attorney        whose

disqualification is sought."               City of Atl. City v. Trupos, 201

N.J. 447, 462 (2010).            If she successfully provides necessary

proofs,   "the    burden     shifts     to      the   attorney(s)     sought       to    be

disqualified to demonstrate that the matter . . . in which he or

[she or] they represented the former client are not the same or

substantially          related   to     the      controversy        in     which        the

disqualification motion is brought."                  Id. at 463.

       However, the record is insufficient to determine whether

that    prior     representation        created        a    present       conflict       of

interest, proscribed by RPC 1.9(a).5                  The filed certifications do

not    provide     conclusive         documentation,         but    rely     on      oral

representations, which are disputed.                       Further, the record as

presented    cannot        support     a     determination         that    the      prior

representation was sufficiently related to the current disputes.


5
    RPC 1.9(a) provides:

            A lawyer who has represented a client in a
            matter   shall   not   thereafter   represent
            another   client    in   the   same    or   a
            substantially related matter in which that
            client's interests are materially adverse to
            the interests of the former client unless
            the former client gives informed consent
            confirmed in writing.




                                           21                                    A-2403-13T4
See Trupos, supra, 201 N.J. at 467 (holding RPC 1.9(a) bars

representation of a client against a former client where "facts

relevant      to     the    prior    representation         are    both    relevant      and

material       to     the    subsequent       representation").              Perhaps      an

evidentiary hearing could have fleshed out the competing oral

assertions      and     determined      the      extent     of    the    attorney-client

relationship, but we conclude that such an effort is no longer

necessary.          Although we reject as unsupported the trial judge's

finding that no representation was provided to Comando by NMM,

in light of NMM's current withdrawal, the issue is moot.

       "Mootness       is     a     threshold      justiciability          determination

rooted in the notion that judicial power is to be exercised only

when a party is immediately threatened with harm."                               Betancourt

v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010)

(citation      omitted).          "'A   case     is   technically         moot    when   the

original issue presented has been resolved, at least concerning

the parties who initiated the litigation.'"                             Ibid.     (quoting

DeVesa    v.       Dorsey,    134    N.J.     420,    428    (1993)       (Pollock,      J.,

concurring) (citation omitted)).                  In other words, "[a]n issue is

'moot' when the decision sought in a matter, when rendered, can

have     no    practical          effect    on     the      existing       controversy."

Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58




                                            22                                     A-2403-13T4
(App.   Div.   2006)   (internal     quotation    marks     and    citation

omitted).

                                    C.

     Comando also contends NMM should be disqualified because

Nash could be called to testify at an ensuing trial.6                   Even

though it is unclear how Nash's testimony supports or refutes

the remaining claims, this too is moot.7

                                   III.

     In summary, the motion judge's order denying the motion for

disqualification   regarding   10    Centre's    derivative    claims    was

grounded on erroneous legal conclusions.          The conflict between

10 Centre and RCP may continue depending on               NMM's continued

6
     Under RPC 3.7(a):

                 [a] lawyer shall not act as advocate at
            a trial in which the lawyer is likely to be
            a necessary witness unless:

                 (1) the    testimony     relates     to      an
            uncontested issue;

                 (2) the    testimony relates  to   the
            nature and value of legal services rendered
            in the case; or

                 (3) disqualification of the lawyer
            would work substantial hardship on the
            client.
7
     Defendants argue Comando's delay in moving for NMM's
disqualification is a waiver. The facts refute this claim. We
will not provide an extended discussion of the issue because
defendants did not file a cross-appeal.



                                    23                             A-2403-13T4
representation of these entities and Nugiel.   Disqualification

based on Comando's claim of past representation is moot as is

the assertion Nash may be a necessary witness at trial.      These

claims are dismissed.

    Dismissed in part and reversed in part.




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