conflict exists, prejudice will be presumed in the absence
of waiver, even if associated private attorneys are involved
instead of the same attorney. (Note that this decision was
held to be retroactive in State v. Rogers, supra, 177 N.J.
Super. 365.
See also State v. Oliver, 320 N.J. Super. 405 (App. Div.
1999) (the prophylactic rule of Bellucci not applicable
where there is no conflict of interest among codefendants,
none of the defendants denied the conduct at issue and
the legal arguments pertained to the constitutionality of
ordinances); State v. Scherzer, 301 N.J. Super. 363 (App.
Div. 1997), certif. denied, 151 N.J. 466 (1997) (harmless
error for a codefendant’s attorney to stand in for another
codefendant’s attorney because the trial was a long trial
and because codefendants had same interest and pursued
a common strategy).
In State v. Bell, 90 N.J. 163 (1982), two defendants
were represented at trial by two staff attorneys from the
same Public Defender’s Office. The Court held that in
this case, there is no presumed or “per se” rule of conflict
of interest where deputy public defenders represent
multiple defendants. The Court, however, noted that
should the circumstances demonstrate a potential
conflict of interest and a significant likelihood of
prejudice, the presumption of both an actual conflict of
interest and actual prejudice will arise without the
necessity of proving such prejudice. When a claim of
conflict arises suddenly during trial, the issue is best left
to the sound discretion of the trial court. The Court also
ordered that the procedures set forth in R. 3:8-2 be
followed whenever multiple defendants are to be
represented by separate public defenders from the same
office. The trial court should explore the situation on the
record before trial, and if defense counsel perceives a
potential conflict, this judgment should be accorded
substantial deference. The Court also recommended that
in such cases the assignment of the defense of codefendant
to out-side pool counsel be the norm, or where
unavailable, assign deputy public defenders from an
adjoining county. (Note: R. 3:8-2 was amended in 1995
to prescribe a time frame for the making of the joint-
representation motion, which is no later than the
arraignment/states conference. However, the rule
provides that the trial court may entertain such a motion
at anytime on good cause shown).
In In Re Garber, 95 N.J. 597 (1984), an attorney
represented a “gangland style” murder eyewitness in
proceedings leading to that witness’ recantation of his
identification of a person whom the attorney represented
in the past and presently represented in matters
unrelated to the murder indictment. The attorney also
maintained social and business relationships with the
uncle of the person identified, the uncle reputedly being
connected with organized crime. Garber held that the
attorney was clearly and convincingly guilty of an actual
and acute conflict of interest, and acted in a patently
unethical manner. The attorney also committed an
ethical violation because he fostered the appearance of
such a conflict.In Matter of Inquiry to Advisory Committee, 130 N.J.
431 (1992), a full-time police officer in the Township of
Cherry Hill was also a member of the New Jersey and
Pennsylvania bars. The issue before the Court was
whether an appearance of impropriety arose from the
police officer joining a law firm and the firm representing
criminal defendants in cases originating in Cherry Hill.
The Court ruled that the firm could not represent private
clients in such criminal matters. Because the officer
intended to remain a full-time police officer during his
association with the law firm and because police officers
are visible components of the administration of justice in
their respective communities, the question posed
virtually answered itself -- as long as the police officer
remained a Cherry Hill police officer, no firm with which
he is associated may represent private clients in Cherry
Hill Municipal Court or in criminal matters arising in
Cherry Hill.In State v. Norman, 151 N.J. 5 (1997), two attorneys
who were involved in representing the defendants shared
office space, eventually became partners, and were paid
their fees by one of the defendants. One defendant’s
attorney appeared at the other defendant’s arraignment,
and representation of one defendant on direct appeal
continued after the formation of the attorney’s
partnership. When the conflict of issue claim arose on
post-conviction relief, one Appellate Division panel
granted the defendant before it a new trial; another panel
denied relief to the other defendant. The Supreme Court
held that while no partnership existed during the
defendants’ trials, it found a substantial risk of prejudice
to one defendant paying attorney fees for both himself
and his codefendant. The Court reversed the denial of
PCR to that defendant whose attorney was paid by the
codefendant. See also, State v. Murray, 162 N.J. 240, 249-
251 (2000) (even though defendant’s PCR application
time-barred, he was entitled to an evidentiary hearing on
whether an actual conflict on the part of trial counsel
existed).In State v. Clark, 162 N.J. 201 (2000), defendant
was represented by designated counsel at his jury trial.