NOT FOR PUBLICATION

PER CURIAM.

By leave granted, defendants, The Quiznos Franchise Company, The Quizno's Franchise Company, LLC, f/k/a The Quizno's Corporation, Quizno's Franchising, LLC, Quizno's Franchising II, LLC, QFA Royalties, LLC, The Quizno's Master, LLC, Larry Hill, John Barry, and Eli Chediak (collectively "defendants"), appeal from the trial court order denying their motion, pursuant to Rules 1.9 and 1.10 of the Rules of Professional Conduct (RPC), to disqualify the law firm, Marks & Klein, LLP ("M&K"), from representing plaintiffs, Meena Mody, as executrix of the estate of Jasvant Mody, and Mukesh Mody. We reverse.

M&K has represented franchisees of Quiznos, a restaurant chain, for more than seven years. In 2006 and 2007, M&K filed four complaints against Quiznos related to claims by current and former Quiznos operators. The litigation involved allegations related to Quiznos' business model, system, and pre-sale disclosures. During the course of the litigation, M&K sought class certification. The proposed class included all former and current Quiznos franchisees as well as "franchisees who signed franchise agreements but never operated a restaurant." The parties eventually reached a global settlement that resulted in the four complaints being consolidated and a class certified, by agreement, for settlement purposes. On August 13, 2010, the court granted M&K's motion to approve the settlement, and final judgment was entered. Plaintiffs in the present matter, although representatives of the class that was certified, opted out of the class.

The firms Cheng Cohen, LLC, and Perkins Coie, LLP, were counsel for Quiznos during this prior litigation. Andrew Bleiman was an associate at Cheng Cohen during the litigation and was one of the attorneys involved. Within months of the settlement, Bleiman left Cheng Cohen and joined M&K. On May 12, 2011, M&K commenced the underlying action on behalf of plaintiffs. The complaint raises allegations similar to those in the settled matter and included as defendants the same Quiznos defendants named in the settled action.

In a letter to plaintiffs' counsel, Justin M. Klein, dated June 29, 2011, Quiznos' attorney, Leonard H. MacPhee, raised the issue of Bleiman's prior representation of Quiznos-related entities. The letter, in relevant part, stated:

M&K did not voluntarily withdraw. In lieu of filing an answer, defendants, on August 5, 2011, moved to dismiss the complaint, which motion was denied by the court. Thereafter, on September 29, 2011, defendants filed their motion to disqualify M&K.

In ruling on defendants' motion, the motion judge found the underlying matter and the settled matters were substantially related. The judge noted the "similarity in the drafting of the complaints themselves are substantial" and that "Bleiman has represented Quiznos in matters that are nearly identical to the instant action[.]" The judge also found it "clear that Mr. Bleiman acquired information protected by RPC 1.6" and "was entrusted with confidential information, proprietary attorney/client and work product privileged documents and information." The judge thus concluded that all the requirements for Bleiman's personal disqualification pursuant to RPC 1.9 had been met.

Turning to the issue of M&K's disqualification, the judge next found that although Bleiman was substantially involved in the prior litigation, he was "not persuaded that [Bleiman] had primary responsibility in the prior matter." He therefore considered whether there had been compliance with the requirements of screening pursuant to RPC 1.10 and found that M&K complied in part, leading him to conclude: "While the notice in this matter could have been more prompt[] and detailed, I'm satisfied that there is substantial compliance. And any delay or lack of detail was not unduly prejudicial and does not warrant the sanction of disqualification. I'm also persuaded that Mr. Bleiman has been screened." Based upon these findings, the judge denied defendants' motion to disqualify M&K.

The present appeal followed.

On appeal, defendants raise the following points:

We begin our discussion by recognizing that "[d]isqualification of counsel is a harsh discretionary remedy which must be used sparingly." Cavallaro v. Jamco Prop. Mgmt., 334 N.J.Super. 557, 572 (App. Div. 2000). It thus requires a court to "balance competing interests, weighing the need to maintain the highest standards of the profession against a client's right freely to choose his counsel." Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988) (internal quotations and citations omitted). Nonetheless, "New Jersey strictly construes RPC 1.9. Consequently, `[i]f there be any doubt as to the propriety of an attorney's representation of a client, such doubt must be resolved in favor of disqualification.'" Herbert v. Haytaian, 292 N.J.Super. 426, 438-39 (App. Div. 1996) (quoting Reardon v. Marlayne, Inc., 83 N.J. 460, 471 (1980)).

Whether the motion judge properly denied defendants' disqualification motion invokes our de novo plenary review in light of the fact that a decision on such a motion is made as a matter of law. City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010). The decision requires that we "recognize and... consider that `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.'" Twenty-First Century Rail Corp. v. N.J. Transit Corp., ___ N.J.___, ___ (2012) (slip op. at 23) (quoting Dewey, supra, 109 N.J. at 218). A client may, however, be granted an exception from the consequences of such a conflict where the requirements of RPC 1.10 apply and have been met. The portions of RPC 1.10 relevant to our discussion provide:

RPC 1.0 sets forth definitions of terminology referenced throughout the RPCs. "Primary responsibility" is defined as: "actual participation in the management and direction of the matter at the policy-making level or responsibility at the operational level as manifested by the continuous day-to-day responsibility for litigation or transaction decisions." RPC 1.0(h).

Plaintiffs have not cross-appealed the motion judge's finding that a clear conflict of interest pursuant to RPC 1.9(a) and (b) was created as a result of Bleiman's prior representation of Quiznos while employed by Cheng Cohen and his current association with M&K. Therefore, we confine our discussion to the motion judge's finding that Bleiman was not an attorney with primary responsibility and that he had been properly screened.

In the certification submitted in support of defendants' motion, Fredric A. Cohen, defendants' counsel, stated that the defense team in the prior litigation consisted of several lawyers from two firms: Cheng Cohen and Perkins Coie, with the three lawyers most actively involved being MacPhee, Bleiman, and himself. He described the nature of Bleiman's responsibilities as follows:

Bleiman, in his certification submitted in opposition to the disqualification motion, did not dispute Cohen's characterization of his involvement in the litigation. Rather, he focused upon the fact that he "never had the direct authority to implement policy-making decisions on behalf of... [d]efendants that affected the overall course of the Quiznos litigation." In addition, he stated "most day-to-day decisions [he] was involved in had to be first approved by Fredric Cohen, Leonard MacPhee, or representatives of the Quiznos' legal department[.]"

Nothing in the definition of "primary responsibility," however, requires "direct authority to implement policy decisions." It merely requires actual participation in the management and direction of the matter at the policy-making level. Bleiman does not dispute that he worked directly with Cohen and MacPhee, who clearly functioned at the policy-making level throughout the litigation. Moreover, given the nature of his participation in pre-trial discovery and settlement negotiations, all evidenced by the more than 952 billable hours charged to Quiznos between 2006 and 2007, this participation was consistent with "continuous day-to-day responsibility for litigation... decisions." RPC 1.0(h). As such, the motion judge erred, as a matter of law, when he concluded Bleiman was not an attorney with primary responsibility within the meaning of RPC 1.0(h).

In view of our conclusion that Bleiman was an attorney with primary responsibility in the prior litigation, it is unnecessary to discuss whether the motion judge erred in concluding Bleiman was properly screened. Suffice it to say, however, the motion judge's finding that he was properly screened is not supported by the record.

The 2004 amendments to the RPCs permit a law firm to represent a client notwithstanding a conflict of interest created by one of its attorney's prior representation of a former client, as long as the lawyer was an attorney without primary responsibility in the prior matter, the attorney has been properly screened, and written notice has been provided to the former client. Proper screening under the RPC requires establishing "appropriate written procedures." RPC 1.10(f).

M&K acknowledges that it was representing plaintiffs before Bleiman joined the firm. Nonetheless, it is undisputed that it developed no written screening procedures either before or after Bleiman joined the firm. The screening procedure it adopted was oral. Nor did M&K provide written notice to Quiznos as required by RPC 1.10(c)(3). RPC 1.0(o) states: "`written' denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail."

The clear and unambiguous language of the terms contained in RPC 1.0(h) and (o) leave no room for the conclusion that an oral screening constitutes proper screening, as the motion judge found. Moreover, to be compliant, the screening must not only be in writing, but it must also be "timely." RPC 1.10(c)(2). Because M&K was already representing plaintiffs when Bleiman joined the team, it is inexplicable that written procedures were not established at the outset. Thus, even if Bleiman had not been an attorney with primary responsibility in the prior litigation, disqualification for non-compliance with the RPC's screening procedures was an additional basis upon which to have granted defendants' motion.

Finally, we find no merit to plaintiffs' contention that defendants waived their right to seek disqualification of M&K because they first filed a motion to dismiss. Plaintiffs raise this argument for the first time in this appeal and we therefore decline to address it, Neider v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973), other than to note that had defendants' motion been granted, the issue of Bleiman's conflict of interest may have been moot.

Reversed and remanded for the entry of an order disqualifying M&K from further representation of plaintiffs.