represented him on appeal from that and another
conviction. The action alleged that the public defenders
conspired with various state officials, including the trial
and appellate judges, to secure the prisoner’s conviction.
The Court concluded that the Public Defenders were not
immune from the liability action, as it alleged intentional
misconduct by virtue of the conspiracy claims.
According to Ferri v. Ackerman, 444 U.S. 193, 100
S.Ct. 402 (1979), federal law does not provide attorneys
appointed to represent indigents in federal criminal trials
with absolute immunity from malpractice suits filed by
their former clients in state courts. The Supreme Court
held that state courts are free to determine whether state
law provides for such immunity in state causes of action.
In State v. Stroger, 97 N.J. 391 (1984), cert. denied,
469 U.S. 1193, 105 S.Ct. 971 (1985), our Supreme
Court held that when records are validly obtained from
an attorney by the disciplinary review board (DRB) in
the course of an ethics audit or an investigation, and the
prosecutor learns of possible criminal implications in an
attorney’s conduct, the DRB, upon proper notice to the
attorney, does not violate mandates of confidentiality,
nor attorney’s constitutional rights, in release to law
enforcement authorities of the attorney’s required
records.
In In Re Kozlov, 79 N.J. 232 (1979), an attorney
appealed an order holding him in contempt in facie curiae
for refusal to disclose his client’s identity who had
knowledge of improper juror conduct. The Court held
that the attorney was entitled to professional shield of
attorney-client privilege where trial court had a less
intrusive source of information available to determine
whether juror’s alleged misconduct warranted a new trial
in a criminal case.
In State v. Mingo, 77 N.J. 576 (1978), defendant’s
expert, who defendant had decided not to call as a
witness, was allowed to testify as a witness for the State,
after the State learned of him from discovery provided by
defendant. Held: the discovery denied defendant the
effective assistance of counsel. To safeguard counsel’s
ability to provide effective assistance, he must be
permitted full investigation latitude, without risk a
“potentially crippling revelation” to the State of
information that he uncovers and chooses not to utilize at
trial.
In the Matter of Joseph L. Nackson, Esq., 114 N.J. 527
(1989), held that the attorney-client privilege barred the
grand jury from compelling the attorney to answer
questions concerning the whereabouts of his client who
was under investigation, when the grand jury had already
returned an indictment charging the client as a fugitive,
when there were other means through which to obtain
the information that the client was a fugitive and to
develop a record in support of an indictment or a
presentment, and when the prosecutor had employed
the grand jury as an investigative arm to obtain
information unrelated to the indictment.V. PRO HAC VICE
Leis v. Flynit, 439 U.S. 438, 99 S.Ct. 698 (1979),
held that there is no federal right that permits an out-of-
state lawyer to appear in state court without meeting the
state’s bar requirements. The Supreme Court upheld a
trial court’s refusal to allow two out-of-state lawyers to
represent defendants in a pending state criminal
obscenity case, stating that the right of an out-of-state
attorney to appear pro hac vice, to be enforceable, must be
derived from statute, legal rule or through a mutually
explicit understanding.According to State v. Chappee, 211 N.J. Super. 321
(App. Div. 1986), certif. denied, 107 N.J. 45 (1986), rev’d
on habeas, Fuller v. Diesslin, 868 F.2d 604 (3d Cir.
1989), cert. denied, 493 U.S. 873 (1989), while
defendant, pursuant to the Sixth Amendment, is
guaranteed the right to counsel, he is not assured an
absolute right to counsel of his choice. As long as the State
is able to provide defendant with effective counsel, there
is no constitutional right to select an attorney who is not
a member of the New Jersey Bar. Moreover, the Court
held that the risk that the presence of out of state counsel
might hinder the orderly processing of the case was a
sufficient countervailing State interest to justify the
court’s decision not to grant counsel of defendant’s
choice. The trial court, therefore, did not abuse its
discretion, pursuant to R. 1:21-2, in denying admission
of defendant’s counsel pro hac vice.VI. CONTEMPT/DISCIPLINARY ACTION
In Matter of Imbriani, 149 N.J. 521 (1997), a former
Superior Court Judge pled guilty to theft under N.J.S.A.
2C:20-9. Although acknowledging the respondent’s
exemplary judicial career, the Court ordered his
disbarment because he pled to an offense based on
personal gain, because the amount of theft was
substantial and the act of theft was not an isolated
incident.