State v. Bell

447 A.2d 525, 90 N.J. 163, 1982 N.J. LEXIS 2148

• Court: Supreme Court of New Jersey
• Decided: July 1, 1982
• Status: Published

Opinions

The opinion of the Court was delivered by

O’HERN, J.

Defendants, Gregory Bell and Anthony Pegúese, were convicted on four counts involving the breaking and entry of an apartment dwelling in Englewood. Their sole ground of appeal is that they were denied the effective assistance of counsel because they were both represented by public defenders from the same office.

I.

The case has the following background. On December 7, 1978, at about 10:30 a. m., a neighbor heard an apartment being ransacked. Her call brought the police to the scene. Another neighbor coming home saw two men walking down the street carrying “loads of stuff” in their arms including a pair of bright pink pants on a hanger in a plastic bag, a camera and other equipment. This neighbor noticed the police at the victim’s apartment and gave them a description of the burglars. Soon thereafter, the police observed two men who fit this description entering an alley. The police apprehended the two defendants, one as he came out of the alley, and the other in a nearby tavern. Found on Pegúese were a bottle of perfume, a watch and a gun. Found on Bell was a camera. A stereo, turntable, tape deck, clock and the pink pants were found in the alley. All of the items, with the exception of the gun and the pink pants, were identified as the tenant’s property. When the tenant had her film developed she discovered three photos of the alley, one of which pictured a man identified as Pegúese.

Defendants were indicted in five counts for breaking and entering with intent to steal contrary to N.J.S.A. 2A:94-1, being armed during commission of same contrary to N.J.S.A. 2A:151-5, larceny of goods having a value in excess of $500 contrary to N.J.S.A. 2A:119-2, receiving stolen goods having a value in excess of $500 in violation of N.J.S.A. 2A:139-1, and possession of a burglary tool in violation of N.J.S.A. 2A:94-3.

The trail of the pink pants did not become a significant trial issue until the State’s last witness, a detective, described seeing Bell in a diner at 8:00 a. m. with the pants on a hanger. Both defense counsel objected to the use of previously undisclosed testimony about the morning identification and the pink pants. After a recess both defense counsel moved for a mistrial, alleging for the first time a conflict of interest arising from their office association. Their motions were denied. The defendants were found guilty of all counts except receiving stolen goods. The Appellate Division affirmed the convictions. We granted the defendants’ petitions for certification limited to the question of whether prejudicial conflict exists simply by reason of defendants being represented by staff attorneys from the same public defender’s office. 87 N.J. 365 (1981). We now affirm.

II.

In State v. Land, 73 N.J. 24 (1977), we held that the defense of a husband and wife against narcotics charges by a single attorney deprived the defendants of the effective assistance of counsel. Justice Schreiber said:

In our opinion the preferable rule is that, in the absence of waiver, if a potential conflict of interest exists, prejudice will be presumed resulting in a violation of the New Jersey constitutional provision guaranteeing the assistance of counsel. Art. I, par. 10. We believe that this principle accords with the Supreme Court’s exegesis of the Sixth Amendment. [Id at 35].

In response to Land, we adopted R. 3:8-2, effective September 1979, requiring an attorney or law firm to move before trial for permission to represent more than one defendant in a criminal trial.

In State v. Bellucci, 81 N.J. 531 (1981), we held that pretrial representation of several co-defendants by one attorney prevented the attorney from representing any one of them at trial. In addition, we held it an improper conflict for an attorney to represent one defendant while a partner or associate represents other criminal co-defendants.

In Bellucci, the State did not deny the impropriety of such joint representation, but contended that a conviction should not be reversed on the basis of conflict of interest alone, absent a showing of actual prejudice. We disagreed and adhered to the principle stated in Land: once a potential for conflict exists, prejudice will be presumed in the absence of waiver even if associated private attorneys are involved instead of the same attorney. State v. Bellucci, supra, 81 N.J. at 543.

III.

The question in this case is whether the same potential for conflict exists when the attorneys representing the co-defendants are associates in a public defender’s office. We hold that the same potential does not exist and that multiple representation by public defenders does not in itself give rise to a presumption of prejudice. We reach this conclusion because, save one, the principles and policies that underlay the Bellucci holding do not apply here.

In Bellucci we set forth three reasons for presuming a conflict where criminal co-defendants are represented by attorneys from the same private law firm. The first is that all firm members typically have access to confidential information. The second is that the entire firm shares an economic interest in the clients of each individual attorney. The third is that “public confidence in the integrity of the Bar would be eroded if conduct proscribed for one lawyer could be performed by his partner.” State v. Bellucci, supra, 81 N.J. at 541.

The second and third reasons for disallowing joint representation by attorneys from the same private firm are closely intertwined. Allowing joint representation by members of the same private firm when the same attorney could not take both cases erodes public confidence primarily because many persons likely will view the two situations as indistinguishable in their benefit to the private firm and its attorneys. Whether one attorney in the firm handles several cases, or several attorneys in the firm each handle one case, the financial benefits to the firm remain the same. In both cases the firm will have an equal incentive to retain defendants as clients in some cases where it disserves the client’s interests.

Public interest firms have no financial incentive in retaining the cases of joint defendants who might thereby be prejudiced. As a consequence, the public does not lose confidence in a rule allowing attorneys in the same office to represent joint defendants, even though a single attorney from that office could not handle the cases. Because “the primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State,” Branti v. Finkel, 445 U.S. 507, 519, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574, 584 (1980), we can expect the public defenders to withdraw from the case whenever joint representation may prejudice their clients. A per se rule requiring counsel from separate offices would therefore needlessly deprive many defendants of competent local public defenders.

In People v. Robinson, 79 Ill.2d 147, 37 Ill.Dec. 267, 402 N.E.2d 157 (1980), the Illinois Supreme Court recently declined to adopt a per se rule of disqualification in cases of multiple representation by a public defender’s office. In such instances the Illinois court requires some showing of a conflict of interest before prejudice to the defendant will be found.

We agree and believe this to be the better view, considering all of the factors involved.¹ We are satisfied that although the subtle influences that arise from public defenders practicing side by side in the same office may present difficulties in maintaining absolute independence,² “the inbred adversary tendencies of [public defense] lawyers are sufficient protection.” People v. Robinson, supra, 402 N.E.2d at 162 (quoting ABA Standards, The Defense Function, Commentary at 212-213 (1971)).

In so holding, we are conscious that lawyers employed by legal aid societies and similar other public service offices have generally been held to the same standards as private lawyers. Opinion 126, 91 N.J.L.J. 257 (1968); Opinion 241, 95 N.J.L.J. 717 (1972). Cf. Opinion 440, 104 N.J.L.J. 449 (1979) (law school clinic having prosecutor and defender units must segregate files). See also Estep v. Johnson, 383 F.Supp. 1323 (D.Conn.1974); Borden v. Borden, 277 A.2d 89 (D.C.App.1971); Flores v. Flores, 598 P. 2d 893 (Alaska Sup.Ct.1979).³ For the most part these cases have involved head to head conflict between parties where the issue was actual conflict, not merely the appearance of conflict. Furthermore, and more importantly, the significant policy values at stake here call for standards appropriate to public interest legal practice.

We have repeatedly stressed the importance of the practice of public interest law in our society. Tp. of Mt. Laurel v. Public Advocate, 83 N.J. 522 (1980). Cf. In re Education Law Center, Inc., 86 N.J. 124 (1981) (allowing public corporation with non-lawyer directors to practice law). In In re Advisory Opinion of Professional Ethics No. 361, 77 N.J. 199 (1978), this Court held that an attorney’s employment in a prosecutor’s office while certain criminal matters were there pending did not disqualify the private law firm with which he subsequently associated from representing parties in those same matters. So long as the former prosecutor had no actual knowledge of, involvement in or responsibility for the matters, the subsequent acceptance of employment by his law firm would not give rise to an improper conflict. The Court explained:

... In balancing the policy considerations in support of the ... view . .. that a broad approach to disqualification will adversely affect the ability of government to recruit young professionals and will interfere with the right of litigants to obtain counsel, as against the dangers incident to conflicts of interest and the appearance of impropriety affecting public confidence in the bar, we conclude that our approach is the more salutary one. [Id., 77 N.J. at 206-07 (emphasis supplied)].

While the principles set out in Bellucci remain applicable to private attorneys, we hold that there is no presumed or per se rule of conflict of interest where deputy public defenders represent multiple defendants.

IY.

The above notwithstanding, 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.⁴ See State v. Land, supra, 73 N.J. at 24; cf. State v. Bellucci, supra, 81 N.J. at 547 (Handler, J., concurring in result but disagreeing as to per se rule). We must therefore consider the record in this case to see if there was a significant likelihood of prejudice. We find there was not.

Defense counsel saw no conflict prior to trial. There was no Green hearing.⁵ However, on the third day of trial, the State, without prior disclosure, sought to introduce a detective’s testimony regarding his sighting of Bell and the pink pants on the morning of the burglary. Defense counsel claimed surprise but the prosecutor asserted that he had no knowledge of this evidence until that morning. After a Wade hearing,⁶ the court ruled the evidence admissible. Peguese’s attorney asked for a mistrial on the basis of this ruling or “in the alternative ... for a continuance of just one hour to allow us to drive out to the diner.” The court granted that continuance. When the trial resumed the officer’s evidence was admitted without further objection. No issue of conflict was presented to the court. Both defense counsel cross-examined the detective. Indeed, it was Peguese’s attorney who sharply cross-examined the detective on the fact that his investigative report contained no reference to observation of the pink pants in the diner. Bell’s attorney cross-examined briefly and the court recessed for lunch.

Not until the afternoon session, after the cross-examination was completed, did both defense attorneys raise the issue of conflict. They claimed that the conflict had arisen by virtue of the newly revealed dissimilarity in the nature of the State’s case against each defendant. They based this claim on the fact that defendant Bell alone, without defendant Pegúese, was seen accompanied by his pink trousers several hours before the burglary. No further explanation was given as to how a conflict had developed from this alleged dissimilarity. The court denied the motion for a mistrial.

We fail to see the conflict. The confidentiality of the information was not at issue. The attorney defending Pegúese was unfettered in his ability to respond to this new information. Bell could hardly seek to claim a tactical trial problem related to co-defendant. Its real burden lay not in any conflict but in its surprise. As noted, the trial court permitted an adjournment to allow counsel to check out the incident but denied a mistrial because the nondisclosure was inadvertent. Two privately re-tamed lawyers would have faced the same problems of trial tactics at that time.

At no time, either at trial or on appeal, have defendants suggested what either trial attorney might have done differently once the conflict arose. Neither defendant took the stand. Peguese’s attorney stated that this was his usual trial strategy. Contrast this with Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), where a trial court had ordered one public defender to represent three criminal defendants. He could cross-examine none although their interests differed. Cf. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (attorney representing two defendants voluntarily refrained from cross-examining prosecution witness because of feared adverse effect on one co-defendant).

The Appellate Division found no such encumbered representation here. We agree.

Y.

To guarantee maximum confidence in the integrity of the criminal judicial process and to protect rights of defendants, the procedures set forth in R. 3:8-2 shall henceforth be followed when multiple defendants are to be represented by separate deputy public defenders from the same office. The court should explore the situation on the record before trial and elicit from counsel an appraisal of any potential for conflict. If defense counsel perceives a potential conflict, this judgment should be accorded substantial deference by the trial court. As the United States Supreme Court observed, “[a]n attorney representing two defendants in a criminal matter is in the best position, professionally and ethically, to determine when a conflict of interest exists or will probably develop in the course of a trial.”⁷ Holloway v. Arkansas, supra, 435 U.S. at 485, 98 S.Ct. at 1179, 55 L.Ed.2d at 435 (quoting State v. Davis, 514 P.2d 1025, 1027 (Ariz.1973)).

The procedure customarily followed by the New Jersey Public Defender—assignment of the defense of co-defendants to outside pool counsel—shall be the norm.⁸ Even this has inherent limitations due to the necessity of relying upon a common investigative staff. Cf. State v. Canery, 144 N.J.Super. 527 (App.Div.1976) (assignment of single investigator to co-defendants with conflicting interests could result in deprivation of right to effective assistance of counsel). The next preferable course is to assign deputy public defenders from an adjoining county. While no one of these alternatives completely eliminates the ongoing relationship between the designated counsel and the public defender’s office, a higher degree of independence will obtain. If the only resort to provide counsel to an indigent defendant is within the local office, there must be guidelines in place to guarantee confidentiality and restrict access to individual files.⁹

We are satisfied that the New Jersey Public Defender is sensitive to the need to appoint outside counsel in cases of potential conflict. N.J.S.A. 2A:158A-9, creating his office, provides in pertinent part:

In any case where the matter involved requires some special experience or skill not available on the professional staff, the Public Defender shall engage counsel on a case basis ... Counsel shall also be engaged on a case basis whenever needed to meet case load demands, or to provide independent counsel to multiple defendants whose interests may be in conflict.

In cases such as this, involving a claim of conflict that arises suddenly in the course of trial, the matter is best left to the trial court’s sound discretion.

The judgment of the Appellate Division is affirmed.

1 See Lowenthal, “Joint Representation in Criminal Cases: A Critical Appraisal,” 64 Va.L.Rev. 939 (1978). But see Allen v. District Court, 184 Colo. 202, 519 P.2d 351 (1974) (with an existing conflict of interest between a welfare recipient and a Welfare Department employee, the State Public Defender should not have been ordered to defend both against fraud and embezzlement charges); Turner v. State, 340 So.2d 132 (Fla.Dist.Ct.App. 1976) (public defender’s office relieved as counsel for one defendant because of a conflict of interest between his defense and that of another co-defendant); Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979) (a divided Pennsylvania Supreme Court appeared to adopt a per se rule of conflict for public defenders representing co-defendants but the facts of the case demonstrate an actual conflict between two brothers, each of whom was counseled by public defenders from the same office. One brother was charged with the other brother’s crime. The latter was counseled by a public defender to refuse to exonerate his brother by admitting guilt).

2 Thus, if the case requires one public defender to attack the trial competence of a fellow office member, the balance is clearly in favor of outside counsel. Angarano v. United States, 329 A.2d 453 (D.C.App.1974).

3 The Alaska court suggested that Legal Services attorneys could properly represent both sides of a civil litigation provided that adequate measures were adopted regarding confidentiality of records, access to files, supervision and physical separation of offices. Id., 598 P.2d at 896-97.

4 Federal courts have taken a different approach in this area, holding that only “an actual conflict of interest [that] adversely affected .. . [the] lawyer’s performance” would constitute a violation of the Sixth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); but see id. at 350, 100 S.Ct. at 1790, 64 L.Ed.2d at 348 (Brennan, J., concurring) (suggesting that a “significant possibility” of conflict creates a presumption of prejudice), and Wood v. Georgia, 450 U.S. 261, 271-273, 101 S.Ct. 1097, 1103-1104, 67 L.Ed.2d 220, 230-31 (1981) (an apparent “possibility of conflict” imposes on the trial court a duty to inquire further).

5 Under State v. Green, 129 N.J.Super. 157 (App.Div.1974), whenever an instance of dual representation appears, it is appropriate for the court to conduct an inquiry at the earliest convenient time to determine whether or not all defendants thus represented have been fully informed of the potential hazards of such a course and to take appropriate action.

6 The prosecutor requested the hearing to demonstrate that the officer was able to make an independent identification of Bell and that there were no impermissibly suggestive procedures. U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

7 Of course, such a claim of conflict must be timely made. Cuyler v. Sullivan, supra, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (no timely claim of conflict made); Turner v. State, 340 So.2d 132 (Fla.Dist.Ct.App.1979) (public defender’s pretrial motion for separate counsel should have been granted).

8 The United States Supreme Court has observed:

Seventy percent of the public defender offices responding to a recent survey reported a strong policy against undertaking multiple representation in criminal cases. Forty-nine percent of the offices responding never undertake such representation. Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va.L.Rev. 939, 950, and n. 40 (1978). The private bar may be less alert to the importance of avoiding multiple representation in criminal cases. See Geer, Representation of Multiple Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119, 152-157 (1978); Lowenthal, supra, at 961-963. [Cuyler v. Sullivan, supra, 446 U.S. at 346, n. 11 [100 S.Ct. at 1717] (quoting ABA Project on Standards for Criminal Justice, Defense Function § 3.5(b) (App. Draft 1971)].

9 See Advisory Committee on Professional Ethics Opinion No. 329, 99 N.J.L.J. 433 (1976) (procedures to avoid potential conflict when a government attorney joins a private law firm which represents parties in ongoing litigation involving the attorney’s former employer).