A lawyer who spent two years defending PIP claims as an in-house lawyer for an automobile insurer was not precluded from handling the same type of claim against the carrier when she moved to a private law firm.
The Appellate Division on Monday found no basis for a blanket disqualification of Allison Kurtz or her new firm, Massood & Bronsnick of Wayne, in Personal Injury Protection cases against Citizens United Reciprocal Exchange.
“CURE failed to demonstrate that Kurtz had acquired confidential information that could be used against CURE in future PIP matters,” the court wrote in CURE v. Kurtz, A-4330-11.
Allegations that Kurtz had knowledge of CURE’s business practices, litigation strategies and staff personalities were found to be “too imprecise and general” to meet the high standard required for disqualification, which requires that the matters be substantially related.
Kurtz started working for CURE in October 2009, mostly in defense of PIP arbitrations. By the time she left, she had handled about 180 such cases, some of them filed by the Massood firm.
In November 2011, she gave notice that Dec. 5 would be her last day but she did not tell CURE where she was going. She began on Dec. 14 at Massood, where personnel were instructed that she was not to be assigned to any CURE claims during her first year.
Nevertheless, during her first month, CURE received form letters from Forthright — the company that administers New Jersey’s PIP arbitration program — stating that Kurtz was the lawyer assigned to two claims against it.
When CURE contacted the firm, it got a letter back saying Kurtz’s listing on the two matters was a clerical mistake. The firm said it had taken precautions to ensure Kurtz was “properly walled-off” from CURE cases.
But it happened again, on Jan. 11, 2012, when CURE got another form letter from Forthright stating Kurtz was on a third case. The firm once more blamed it on a clerical error, telling CURE that Kurtz never received or reviewed the files in any of the three cases and had no role or responsibility regarding them.
CURE demanded that the firm withdraw from all pending PIP cases against it. The firm refused on Jan. 26, 2012, insisting that Kurtz “never had any involvement whatsoever” in any CURE matter and that her designation as counsel on the three files were mistakes that had been corrected.
Not satisfied, CURE filed a complaint and order to show cause in Mercer County Superior Court on Feb. 9, 2012, seeking to prevent Kurtz and the firm from representing anybody whose interests were adverse to it in a PIP case.
The request was based on Rules of Professional Conduct 1.9, which governs duties to former clients, and 1.10, which imputes a disqualification for conflict of interest to a lawyer’s entire firm, under some circumstances.
CURE contended that Kurtz’s in-house training had given her intimate knowledge of its confidential and proprietary business information and practices regarding billing, claims handling, underwriting guidelines and PIP eligibility investigations, and that she had heard discussions of specific pending cases at weekly litigation strategy meetings.
It also argued that in working closely with other CURE lawyers and adjusters, she had learned settlement strategies and CURE’s “parameters and tolerances.” As a result, she allegedly had “specific sensitive, confidential information which could be used against CURE in the future.”
In response, Kurtz certified that she did not learn anything confidential about new cases filed since she left CURE. She pointed out that although different PIP cases might involve the same medical procedures or legal issues — e.g., whether a procedure was medically necessary or the correct billing code was used — each was won or lost based on its own unique facts, the available medical records and the interpretation of statutes and regulations. It did not depend on confidential information or strategies.
Where the issue is whether a medical provider has been reimbursed at the customary and reasonable rate, CURE, like other PIP carriers, uses publicly available national databases, she said.
Senior partner Joseph Massood certified that side-switching is common for PIP lawyers, especially younger ones looking for experience. He also said PIP arbitrations are simple, routine matters and the firm, having litigated against CURE for years, already knew its litigation strategies and settlement parameters.
Superior Court Judge Douglas Hurd denied disqualification because CURE did not specify information shared with Kurtz that could be used against it.
Appeals Judges Jose Fuentes, Victor Ashrafi and Margaret Hayden agreed, saying CURE failed to specify any such information even under a protective order or to relate it to pending cases.
The lawyer for Kurtz and the firm, A. Ross Pearlson, of Wolff & Samson in West Orange, says “if the court were to find that every PIP matter were related to every other PIP matter, it would severely restrict attorneys in their mobility.”
The Massood firm’s Andrew Bronsnick says Kurtz, to play safe, has not yet worked on any CURE matters. He was unsure how long that will continue.
CURE’s lawyer, Sonya Bright of Princeton’s Bright & Sponder, did not return a call.
An author and lecturer on legal malpractice, Bennett Wasserman of Davis Saperstein & Salomon in Teaneck, says disqualifying lawyers is getting harder and harder and “unless you can come up with a specific piece of confidential information utilized in a specific case, I don’t think you’re going to prevail.”