E.R. v. J.N.B.
129 A.3d 521
| Pa. Super. Ct. | 2015Background
- Child born in 2010; parents (Mother J.N.B. and Father E.R.) shared legal custody with Mother having primary physical custody under earlier orders and Father limited weekend/weekday visits.
- Father sought repeated modifications (2011–2013); interim expansion of his custodial time was entered in 2012; Father again sought equal custody in April 2013.
- Attorney Joseph Maher entered appearance for Father in May 2013; Mother moved to disqualify Maher on June 25, 2013, asserting Maher had previously represented her in unrelated matters and possessed confidential information relevant to custody/support.
- Trial court disqualified Maher by order (June 27, 2013); Maher nonetheless continued to act and was later held in contempt and fined; he also filed an appeal of the disqualification which was quashed as interlocutory.
- Custody trial occurred December 3–4, 2013 (Father pro se); trial court granted Mother primary physical custody and limited Father's custody to supervised visits; Father appealed both the disqualification and custody modification orders.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether trial court erred in disqualifying Father’s counsel (RPC 1.9) | Maher’s prior representations of Mother were not substantially related; no confidential info that Father didn’t already know; Mother waived objection and failed to comply with local rule | Maher learned Mother’s financial and emotional background in prior matters that are substantially related and would materially advance Father’s position; Mother did not consent to new representation | Court affirmed disqualification: substantial risk of misuse of confidential info made disqualification necessary to protect fair trial rights |
| Whether precluded counsel may continue to represent client on appeal and in related matters | Reliance on Vertical Resources and Vaccone to support continued representation on appeal | Disqualification does not authorize precluded counsel to continue representing client beyond appealing the disqualification order; those cases address appealability timing, not ongoing representation | Court condemned Maher’s continued representation beyond appealing the disqualification order, but addressed merits to avoid punishing Father |
| Whether trial court abused discretion in modifying custody and imposing supervised visits | Father argued supervised-only custody was based improperly on unproven NY criminal charges and violated presumption of innocence | Mother showed concerns about Father’s stability, limited parenting history, failure to follow court-ordered psychological evaluation, and safety concerns (including the NY incident and prior convictions); court weighed §5328 factors and favored Mother | Court affirmed custody modification: trial court’s findings were supported by competent evidence and supervised custody was appropriate in child’s best interests |
| Whether Mother’s motion to disqualify was procedurally deficient under local rules (waiver) | Mother failed to file supporting brief as required by Lehigh County Rule 208.3(b), so she waived the objection | Trial court had discretion to refuse to strike/deny motion; substantive conflict justified disqualification despite procedural irregularity | Court rejected waiver argument and found no abuse of discretion in proceeding with Mother’s motion |
Key Cases Cited
- Vertical Resources, Inc. v. Bramlett, 887 A.2d 1193 (Pa. Super. 2005) (disqualification appealability may be treated as collateral order under unique facts)
- Vaccone v. Syken, 899 A.2d 1103 (Pa. 2006) (orders disqualifying counsel are usually interlocutory; Vertical Resources is fact-specific)
- Karch v. Karch, 879 A.2d 1272 (Pa. Super. 2005) (disqualifying counsel order quashed as interlocutory in custody/divorce context)
- Weber v. Lancaster Newspapers, Inc., 878 A.2d 63 (Pa. Super. 2005) (standard for disqualification: balance right to counsel of choice against need to prevent ethical violations)
- S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014) (best-interest standard and application of custody factors under 23 Pa.C.S. § 5328)