the attorney’s indictment while trying defendant’s case,
the attorney did not enter into a plea bargain in his own
behalf with the prosecutors trying defendant’s case
during the pendency of defendant’s trial, and the
attorney was highly competent in the area of criminal law
for which he was representing a defendant.
In State v. Catanoso, 222 N.J. Super. 641 (Law Div.
1987), the trial court disqualified an attorney from
representing defendant when such representation
presented a conflict of interest with the attorney’s
previous representation of the State’s chief witness.
Defendant’s interests were materially adverse to the
interests of the former client because the current
representation might have necessitated the disclosure of
certain confidences made by the former client to the
attorney. R.P.C. 1.9(a)(1). Such representation also
would give rise to the appearance of impropriety. R.P.C.
1.7(c)(2).
In State v. Sanders, 260 N.J. Super. 491 (App. Div.
1992), defendants were tried jointly and an attorney who
had represented Sanders at a bail proceeding was
permitted, over Sanders’ objection, to represent Sanders’
codefendant at trial. The Appellate Division found that
the attorney’s representation of defendant at the bail
hearing constituted “representation” under R.P.C. 1.9.
Thus, the attorney could not act as counsel for the
codefendant in the same proceeding. The preferable rule
is that when there is a conflict under R.P.C. 1.9,
prejudice is presumed.
In State v. Muniz, 260 N.J. Super. 309 (App. Div.
1992), the trial court granted the State’s application to
disqualify the Office of the Public Defender as counsel for
defendant in a homicide prosecution because the office
had represented the homicide victim in another criminal
matter. The trial court had directed the Public Defender
to “pool” defendant’s case to outside counsel. The
Appellate Division ruled that the Public Defender’s
Office was not disqualified.
In State v. Salentre, 275 N.J. Super. 410 (App. Div.
1994), certif. denied, 138 N.J. 269 (1994), the
prosecutor notified the defense that five of its witnesses
against defendant could be his codefendants, who all had
pled guilty. One codefendant did testify, and all of the
codefendants had been represented by the Office of the
Public Defender. Defendant’s attorney made a motion
to be relieved as counsel, citing a perceived conflict. The
Appellate Division upheld the trial court’s denial of the
motion. There were no grounds for automatic
disqualification, and defendant presented no evidence of
actual conflict.State v. Bruno, 326 N.J. Super. 322 (App. Div. 1999),
affirmed the denial of the State’s motion to disqualify a
law firm from representing the defendant. The law firm
had represented the lead detective in defendant’s
criminal trial in a prior civil matter. The Appellate
Division found that when defendant hired the law firm,
the detective was not a current client of the firm, so there
was no actual conflict of interest. There was no
appearance of impropriety because the firm’s representa-
tion of the detective was limited, and no evidence from
the civil trial could be used to cross-examine the detective
at defendant’s criminal trial.In State v. Needham, 298 N.J. Super. 100 (Law Div.
1996), the trial court found a conflict on the part of
defense counsel who had represented the State’s principal
witness, a police officer, in an internal affairs
investigation. The court found that the public’s
confidence in the system would be undermined since it
might view the officer as unfairly aiding the defendant or
that defense counsel would not vigorously cross-examine
his former client or that defense counsel would use
confidential information.III. FIRST AMENDMENT - COMMENTS BY ATTORNEYS ON PENDING CASE
State v. Carter, 143 N.J. Super. 405 (App. Div.
1976), after remand rev’d, 144 N.J. Super. 302 (App. Div.
1976), was a murder prosecution retrial, where the trial
court issued an order limiting public comment by
“defendants, all attorneys, associates of the attorneys
preparing for trial, agents, servants and employees,” It
was held invalid for (1) failure to include exception in
DR7-107, which permits quotations from or references
to public record, and (2) failure to make adequate
showing of need. Specific findings that there is a
reasonable likelihood of prejudicial publicity which
would make empaneling an impartial jury difficult was
held to be necessary prior to entry of order.
See also R.P.C. 3.6.IV. PRIVILEGE
In Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820
(1984), an Oregon prisoner brought an action for
punitive damages under federal law against an Oregon
public defender who represented him at one of his trials
and against another Oregon public defender who