State of New Jersey v. David Hudson ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2943-14T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
December 21, 2015
v.
APPELLATE DIVISION
DAVID HUDSON,
Defendant-Respondent.
_______________________________
Argued October 26, 2015 - Decided December 21, 2015
Before Judges Lihotz, Fasciale1 and Nugent.
On appeal from an interlocutory order of
Superior Court of New Jersey, Law Division,
Essex County, Indictment No. 14-07-1810.
Alfred V. Gellene argued the cause for
appellant (Fusco & Macaluso Partners, LLC,
attorneys; Mr. Gellene, on the brief).
Lucille M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney;
Ms. Rosano, of counsel and on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
1
Judge Fasciale did not participate in oral argument. He
joins the opinion with counsel's consent. R. 2:13-2(b).
Defendant David Hudson, a Newark police officer, was
indicted on July 18, 2014, charged with third-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree
possession of a weapon with purpose to use it unlawfully against
another, N.J.S.A. 2C:39-4(a); and official misconduct, N.J.S.A.
2C:30-2(b). The charges stem from a road rage incident, during
which defendant allegedly followed the victim to his home and
threatened him with a gun. Newark Police Officers Thomas
Hernandez and Queen Bates responded to the victim's 9-1-1 call
and the Newark Police Department principally conducted the
criminal investigation supporting the indictment.
Defendant retained Anthony Fusco and his firm Fusco &
Macaluso Partners, LLC to provide his legal representation. The
State moved to disqualify counsel and his firm asserting Fusco
had an actual and apparent conflict of interest because he was
counsel for the New Jersey Fraternal Order of Police Lodge
(FOP), the union representing Newark Police Officers, and
because Fusco previously represented a Newark officer involved
in the investigation. The trial judge agreed and concluded
Fusco was disqualified from serving as criminal defense counsel
because of the apparent conflict, which created an appearance of
impropriety.
2 A-2943-14T4
On our leave granted, defendant appeals from the January
14, 2015 order memorializing this determination, arguing:
POINT ONE
MR. FUSCO'S RELATIONSHIP WITH THE NJFOP DOES
NOT DISQUALIFY HIM OR HIS FIRM FROM
REPRESENTATION OF THE DEFENDANT IN THIS
CASE.
POINT TWO
THERE IS NO ACTUAL CONFLICT OF INTEREST IN
THIS MATTER.
Following our review, we reverse the order of
disqualification and remand for further proceedings. We
conclude the facts in this record do not support the judge's
conclusions of an actual conflict of interest. We also conclude
the trial judge erred in grounding his determination on the
possible appearance of impropriety. The appearance of
impropriety may not be used as a basis to find a conflict of
interest under RPC 1.7 or RPC 1.9. In re Supreme Court Advisory
Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 563 n.5, 568
(2006).
These undisputed facts are found in the record of the
State's motion seeking to disqualify Fusco and defendant's
response. Fusco, as counsel for the FOP, represents "member
police officers in administrative, civil and criminal matters
which [arise] out of their duties as police officers." Further,
Fusco is a featured columnist for the FOP News Magazine, where
3 A-2943-14T4
he regularly contributes, and is designated as "State Lodge
Attorney Tony Fusco." The State averred Fusco's representation
of members of the FOP, who are employed by the Newark Police
Department, precluded his representation of defendant because
the criminal charges were principally investigated by the Newark
Police Department. The State also suggested Fusco's role as
attorney for the FOP equated to representation of the officer
members, including the officers of the Newark Police Department.
Additionally, in a supporting certification, an assistant
prosecutor identified ten Newark police officers as potential
witnesses, stating "some of these officers will testify at the
pending trial." The list included Lieutenant Camilo Mos, who
was present during defendant's videotaped custodial interview,
but neither conducted the interview nor Mirandized defendant.
The State also related Lt. Mos' disclosure he had engaged Fusco
to represent him "in an administrative hearing related to his
employment" ten years earlier.
These facts alone underlie the State's position that
Fusco's prior representation of Lt. Mos, and "the representation
of the union itself, which in turn represents or has represented
each of these Newark Police witnesses[,]" constitutes an actual
conflict of interest or at least an appearance of impropriety.
It is noted the State did not provide a certification from Lt.
4 A-2943-14T4
Mos detailing the nature of Fusco's prior representation or
addressing his position on Fusco's representation of defendant.
Fusco filed a responsive certification, which confirmed he
was under contract with the FOP "to represent member police
officers in administrative, civil and criminal matters which
arose out of their duties as police officers." Further, he
acknowledged he had been "retained by the []FOP as legal counsel
to render advice to the []FOP Board of Trustees[;]" he
"regularly speak[s] at the []FOP State Convention[;] and [he]
author[ed] articles for their newsletter[]"; however, he was not
designated counsel and officers were free to retain any attorney
they chose. Fusco also admitted he represented "Lt. Mos in a
Newark Departmental disciplinary hearing," probably when he was
a patrol officer. However, he had no personal recollection of
the matter, the file was not in the firm's current computer
system, and being over ten years old, it was presumably in
storage. Defendant also filed a certification waiving any
alleged conflict Fusco and the firm might have because of the
prior representation of Lt. Mos.
On January 14, 2015, without benefit of oral argument, the
motion judge issued a written opinion granting the State's
motion. The judge reasoned defendant faced a "significant risk"
his defense would "be materially limited when Fusco" or another
5 A-2943-14T4
attorney from his firm was required to cross-examine Lt. Mos.
because Fusco had access to information regarding Lt. Mos
"through past recollection of the prior case file," which he
would be precluded from using. Consequently, to avoid violating
RPC 1.7(a)(2) and RPC 1.9(c), Fusco would engage in a "more
cautious cross-examination than would otherwise be warranted."
Also, although noting the appearance of impropriety
standard was removed from the RPCs following the 2004
amendments, the judge nevertheless found the doctrine remained
"a consideration when examining a conflict of interest." He
concluded, despite the uncertainty of whether Lt. Mos was a "key
witness," the State's identification of him as a possible
witness was sufficient to lead the public to perceive:
(1) Lieutenant Mos unfairly aided Defendant
in order to ingratiate himself with Mr.
Fusco in case he ever needs Mr. Fusco's
legal services again; (2) that Mr. Fusco or
the attorney from his firm appearing at
trial did not vigorously cross-examine
Lieutenant Mos; or (3) that Mr. Fusco or his
associate would use confidential information
from his earlier representation of
Lieutenant Mos during Lieutenant Mos's
cross-examination, such as information
regarding prior bad acts. See [State v.]
Needham, 298 N.J. Super. [100,] 104-07 [(Law
Div. 1996)]. This appearance of impropriety
presents "a substantial risk of disservice
to the public interest," as it will both
undermine the integrity of the Court and
provide a potential avenue for attacks on
the fairness of this case. See [State v.]
6 A-2943-14T4
Davis, 366 N.J. Super. [30,] 38, 42-43
[(App. Div. 2004)].
Defendant requested leave to appeal from the January 14,
2015 order directing Fusco's disqualification. We granted
interlocutory review.
"[A] determination of whether counsel should be
disqualified is, as an issue of law, subject to de novo plenary
appellate review." City of Atl. City v. Trupos, 201 N.J. 447,
463 (2010). See also State v. Bruno, 323 N.J. Super. 322, 331-
32 (App. Div. 1999). "Where . . . the trial judge had no
factual disputes to resolve on credibility grounds and only
legal conclusions to draw," reviewing courts do not "defer to
the trial judge's findings" or ultimate decision. Bruno, supra,
323 N.J. Super. at 331. The burden rests with the State to
demonstrate a disqualifying conflict exists. See State v.
Morelli, 152 N.J. Super. 67, 70-71 (App. Div. 1977).
Consideration of this issue starts with a recognition of a
criminal defendant's right secured by the Sixth Amendment of the
United States Constitution "to have the Assistance of Counsel
for his defence." U.S. Const. amend. VI. This fundamental
right must be protected. State v. Coon, 314 N.J. Super. 426,
432-33 (App. Div.), certif. denied, 157 N.J. 543 (1998).
Additionally, United States Supreme Court jurisprudence has
solidified the principle that a non-indigent defendant's Sixth
7 A-2943-14T4
Amendment right to counsel encompasses the right to be
represented by the counsel of his choosing, as the Sixth
Amendment "commands . . . that the accused be defended by the
counsel he believes to be best." United States v. Gonzalez-
Lopez, 548 U.S. 140, 146, 126 S. Ct. 2557, 2562, 165 L. Ed. 2d
409, 418 (2006). New Jersey's Constitution equally recognizes a
defendant's right to obtain counsel of his or her choosing.
N.J. Const. art. I, ¶ 10. See also State v. Kates, 426 N.J.
Super. 32, 43 (App. Div. 2012), aff'd, 216 N.J. 393 (2014).
Where the right to be assisted by counsel of
one's choice is wrongly denied, . . . it is
unnecessary to conduct an ineffectiveness or
prejudice inquiry to establish a Sixth
Amendment violation. Deprivation of the
right is "complete" when the defendant is
erroneously prevented from being represented
by the lawyer he wants . . . .
[Gonzalez-Lopez, supra, 548 U.S. at 148, 126
S. Ct. at 2563, 165 L. Ed. 2d at 419.]
While the right to have counsel is resolute, a non-indigent
criminal defendant is not guaranteed his or her choice of any
lawyer. Certainly, the terms of the relationship must be agreed
between attorney and client. State v. Jimenez, 175 N.J. 475,
484 (2003). More important, the scope of an attorney's
representation remains restricted by the RPCs. Ibid.
Accordingly, "[a] defendant's right to choose counsel is also
circumscribed by the court's power to guard against conflicts of
8 A-2943-14T4
interest, and to vindicate the court's 'independent interest in
ensuring that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings appear
fair to all who observe them.'" Kates, supra, 426 N.J. Super.
at 45 (quoting Wheat v. United States, 486 U.S. 153, 160, 108 S.
Ct. 1692, 1698, 100 L. Ed. 2d 140, 149 (1988)). This squares
with the principle that a defendant's Sixth Amendment right to
effective assistance of counsel mandates counsel provide both
adequate and conflict-free representation. United States v.
Moscony, 927 F.2d 742, 748 (3d Cir.), cert. denied, 501 U.S.
1211, 111 S. Ct. 2812, 115 L. Ed. 2d 984 (1991). Thus, "[a]
defense attorney's representation must be untrammeled and
unimpaired, his loyalty undivided." State v. Bellucci, 81 N.J.
531, 538 (1980) (citation omitted). See also State v. Cottle,
194 N.J. 449, 463-64 (2008) ("With so much on the line . . . .
[a]n attorney should never place himself in the position of
serving . . . an interest in conflict with his client's
interest."); State ex rel. S.G., 175 N.J. 132, 139 (2003) ("In
criminal matters, in which the trust between attorney and client
has enhanced importance, special vigilance is required because
an attorney's divided loyalty can undermine a defendant's Sixth
Amendment right to effective assistance of counsel.").
9 A-2943-14T4
Courts have examined allegations of conflict of interest
and appearance of impropriety arising from counsel's
representation of current and former clients. In State v.
Galati, 64 N.J. 572 (1974), a case decided prior to the adoption
of the current RPCs, the State sought to disqualify privately
retained defense counsel, alleging he, as the attorney for the
Policemen's Benevolent Association, Local No. 75 (PBA), had a
conflict of interest, and his representation evoked the
appearance of impropriety because counsel maintained a close
professional relationship with the PBA organization and its
members. Id. at 573-74. The State had called before the Grand
Jury, and also intended to call at trial, the defendant's patrol
partner, a member of the same PBA lodge as the defendant, which
was the same lodge counsel represented. Id. at 573.
Noting a detailed factual analysis was essential when
determining whether particular conduct constituted the
appearance of impropriety, the Court reasoned:
when the lawyer of a PBA chapter consults
periodically and intimately with its
membership for the legislative, economic and
other well-being of the organization and its
members, he acquires, or is generally
believed to acquire a special status, a
relationship, a bridge of confidentiality
and trust which sets him apart from other
lawyers.
. . . .
10 A-2943-14T4
So . . . when the PBA's lawyer
undertakes the representation of a private
cause in which a member of that same PBA is
destined to testify (on one side or another)
there is bound to occur a public suspicion
that the PBA witness will be inclined to
palliate or vivify his testimony in order to
accommodate the lawyer who, outside the
courtroom, is en rapport with and supportive
of the private and organizational interest
of the PBA witness.
And should the public so believe, and
thus suspect the outcome of the litigation
proceeded from undue influence upon the
policeman's testimony, and not from the
merits, there is a sure result. The doubts
thus engendered or suspicions aroused
("these fellows all stick together")
impoverish the appearance of justice and
taint the image of law and its even-handed
enforcement.
[Id. at 575-76.]
The Court "appreciate[d] that the views expressed . . . will
preclude a PBA attorney in the future from all representations
in which an officer from the same PBA chapter will be called to
testify. The sacrifice thus called for seems necessary to the
appearance and substance of justice and good government." Id.
at 578. Despite noting a possible appearance of impropriety,
the Court found no actual impropriety occurred and reversed the
trial judge's order of disqualification, noting the
circumstances presented were unique and both parties had equal
access to the proposed witness. Id. at 578-79.
11 A-2943-14T4
After the formal adoption of the RPCs in 1984, the standard
set forth in then RPC 1.7(c) and RPC 1.9 remained clear:
Attorneys [were] disqualified from
representing clients not only in cases of
actual conflict, but also when
representation begets an appearance of
impropriety. Thus, multiple representation
[was] impermissible "in those situations in
which an ordinary knowledgeable citizen
acquainted with the facts would conclude
that the multiple representation poses
substantial risk of disservice to either the
public interest or the interest of one of
the clients."
[In re Inquiry to Advisory Comm. on Prof'l
Ethics Etc, 130 N.J. 431, 433 (1992)
(quoting RPC 1.7(c)(2)).2]
2
Prior to amendments to the RPCs in 2004, RPC 1.7(c)(2),
which governs simultaneous representations of clients, stated:
This rule shall not alter the effect of case
law or ethics opinions to the effect that:
. . . .
(2) in certain cases or situations creating
an appearance of impropriety rather than an
actual conflict, multiple representation is
not permissible, that is, in those
situations in which an ordinary
knowledgeable citizen acquainted with the
facts would conclude that the multiple
representation poses substantial risk of
disservice to either the public interest or
the interest of one of the clients.
With respect to representing former clients, the original
version of RPC 1.9(b) stated "[t]he provisions of RPC 1.7(c) are
applicable as well to situations covered by this rule."
12 A-2943-14T4
In State v. Bruno, the State advanced a disqualification
argument challenging counsel and his firm's representation of
the defendant who retained him because the State's lead
detective in the criminal investigation had previously hired a
member of the firm to represent him in a civil rights and
worker's compensation matter. Bruno, supra, 323 N.J. Super. at
324-25. The detective would not consent to counsel's
representation arguing he intended to request the firm file an
action reopening his claim. Id. at 328.
After a thorough analysis of the facts of counsel's prior
representation, the trial judge rejected the State's argument
contending representation of the defendant constituted a
conflict of interest and created an appearance of impropriety.
Id. at 325. Following our plenary review, we agreed. Ibid. We
determined the evidence supported the detective was a former and
not a current client of the firm, no actual conflict in
counsel's former and current representations existed, and the
firm's prior representation of the detective was limited in
scope and, therefore, not subject to the same types of risk of
gaining confidential information during that representation,
which could be used to the detective's detriment during cross-
examination were he to testify in the defendant's criminal case.
Id. at 334, 337. Finally, we held an "informed citizen with
13 A-2943-14T4
full knowledge of the facts would conclude that there is no
'high risk' of impropriety here" and there is no "reasonable
basis" to conclude "these facts create an appearance of
impropriety." Id. at 337-38. But see State v. Needham, 298
N.J. Super. 100, 102, 105-07 (Law Div. 1996) (disqualifying
counsel from representing the defendant because of the
appearance of impropriety as he had previously represented the
chief prosecution witness in an unrelated criminal matter).
Several other cases examine the propriety of granting the
State's request for a mistrial because of defense counsel's dual
representation, invoking the appearance of impropriety standard.
See State v. Loyal, 164 N.J. 418, 421, 440 (2000) (upholding
entry of mistrial based on the appearance of impropriety where
the defendant's lawyer, a public defender, previously
represented the State's key witness on an unrelated charge
although the witness recanted her previous identification of the
defendant); State v. Catanoso, 222 N.J. Super. 641, 647-48 (Law
Div. 1987) (finding the appearance of impropriety doctrine and
an actual conflict disqualified the defense attorney who
previously acted as special counsel for a corporate co-
defendant, with whom the State’s key witness was associated, for
fear the attorney would disclose, on cross-examination,
confidences learned).
14 A-2943-14T4
For three decades following Galati, the Court, when
examining cases of dual representation, steadfastly emphasized
counsel clearly must avoid impropriety and insisted "'even the
appearance of impropriety' that casts doubt upon the integrity
of the criminal process must be avoided." In re Milita, 99 N.J.
336, 342 (1985) (quoting Galati, supra, 64 N.J. at 576). The
basis of this proscription was the "overriding concern . . . for
maintaining public confidence in the integrity of the legal
profession" because "appearances can be as important as
reality." Inquiry to Advisory Comm., supra, 130 N.J. at 434
(citing Galati, supra, 64 N.J. at 576). See also In re Petition
for Review of Op. No. 569 of Advisory Comm. on Prof'l Ethics,
103 N.J. 325, 330 n.4 (1986) ("New Jersey remains one of the few
states to adhere to the 'appearance of impropriety' rule. We
have previously noted our disagreement with the ABA's narrower
'approach to disqualification.'") (quoting In re Advisory Op. on
Prof'l Ethics No. 361, 77 N.J. 199, 206-07 (1978)).
A sea change occurred in 2004, when the RPCs were amended
to eliminate the "appearance of impropriety" provisions from all
RPCs, including RPC 1.7(c) and RPC 1.9(c). See Supreme Court of
New Jersey, "Administrative Determinations in Response to the
Report and Recommendation of the Supreme Court Commission on the
Rules of Professional Conduct" (Sept. 10, 2003); Kevin H.
15 A-2943-14T4
Michels, New Jersey Attorney Ethics--The Law of New Jersey
Lawyering, § 18:1 at 383 (Gann 2015). For a period following
the adoption of the 2004 amendments, an "offhand comment" by the
Pollock Commission,3 stating, "a court may properly consider the
appearance of impropriety as a factor in determining that
multiple representation poses an unwarranted risk of disservice
. . . to the interest of the client[,]" created a confusion
regarding the continued viability of the doctrine, despite the
modification of the RPCs. Michels, supra, § 18:2 at 384-85.
However, in 2006, the New Jersey Supreme Court ultimately
declared the use of the appearance of impropriety doctrine
moribund by stating: "[W]e hold that the 'appearance of
impropriety' standard no longer retains any continued validity
3
In 2001,
the Supreme Court created a Commission to
review New Jersey's R.P.C.s in light of the
changes to the Model Rules made by the ABA's
"Ethics 2000" Commission. New Jersey's
Commission, chaired by retired Justice
Stewart Pollock and known as the Pollock
Commission, responded in 2002 with suggested
revisions to New Jersey's R.P.C.s . . . .
After a comment period and a public hearing,
the Supreme Court adopted extensive
amendments to the R.P.C.s and the Court
Rules in November of 2003, to be effective
on January 1, 2004.
[Ethics Op. No. 697, supra, 188 N.J. at 554
(quoting Michels, supra, § 1:2-1 at 5).]
16 A-2943-14T4
in respect of attorney discipline." Ethics Op. No. 697, supra,
188 N.J. at 568. The Court emphasized the doctrine is not a
factor to be considered in determining whether a prohibited
conflict of interest exists under RPC 1.7, 1.8 or 1.9 as its use
"injects an unneeded element of confusion[.]" Id. at 562 n.5.
To the extent the conclusion in Galati was based on an
appearance of impropriety analysis, it conflicts with the
Court's direction, declaring the amorphous and impractical
appearance of impropriety doctrine may not serve as a basis to
disqualify counsel because of a perceived conflict of interest.
Disqualification must be based on an actual conflict or
potential conflict of interest, as now defined by the RPCs.
RPC 1.7(a) proscribes the simultaneous representation of
clients, if the representation would be directly adverse to
another client, stating in pertinent part:
a lawyer shall not represent a client if the
representation involves a concurrent conflict
of interest. A concurrent conflict of
interest exists if . . . (2) there is a
significant risk that the representation of
one or more clients will be materially
limited by the lawyer's responsibilities to
another client, a former client, or a third
person or by a personal interest of the
lawyer.
RPC 1.7(b) allows affected clients to provide informed written
consent if "the lawyer reasonably believes that [he/she]" can
provide the impacted clients "competent and diligent
17 A-2943-14T4
representation"; "the representation is not prohibited by law";
and the affected clients are not adverse parties in the same
litigation.
Ethical responsibilities stemming from the representation
of a former client in the course of representing a current
client is governed by RPC 1.9. Subsection (c) addresses when a
current representation may conflict with a former client's
interests, providing:
A lawyer who has formerly represented a
client in a matter or whose present or former
firm has formerly represented a client in a
matter shall not thereafter:
(1) use information relating to the
representation to the disadvantage of the
former client except as these Rules would
permit or require with respect to a client,
or when the information has become generally
known; or
(2) reveal information relating to the
representation except as these Rules would
permit or require with respect to a client.
Finally, RPC 1.10(a) pertains to the imputation of
conflicts of interest to others, stating:
When lawyers are associated in a firm, none
of them shall knowingly represent a client
when any one of them practicing alone would
be prohibited from doing so by RPC 1.7 or RPC
1.9, unless the prohibition is based on a
personal interest of the prohibited lawyer
and does not present a significant risk of
materially limiting the representation of the
client by the remaining lawyers in the firm.
18 A-2943-14T4
Turning to the facts presented in this matter, the trial
judge found Fusco's role as an attorney for the FOP was not a
basis to require disqualification. Rather, disqualification was
triggered by "an actual conflict of interest and an appearance
of impropriety."
In concluding the facts showed an actual conflict of
interest, the judge assumed Lt. Mos would testify at defendant's
trial and Fusco's prior representation of Lt. Mos provided him
access to private information, which could not be used or might
impinge a vigorous cross-examination. These findings are not
supported by the record.
First, we agree with defendant that Lt. Mos is not a key or
essential State witness based on his disclosed involvement. He
did not respond to the victim's call for aid, arrest or
Mirandize defendant, or actively participate during defendant's
videotaped interrogation. The facts strongly suggest Lt. Mos'
role in the State's case was merely tangential, as his
participation appears far less significant than the role played
by the officer in Bruno. Where it is likely Lt. Mos will not be
called at trial because of his limited role in this matter, it
would be improper for the State to seek disqualification merely
as a strategic maneuver.
19 A-2943-14T4
Second, the absence of a certification from Lt. Mos speaks
volumes. His silence along with Fusco's inability to recall the
nature of the prior matter creates a void; no facts show an
actual conflict exists based on Fusco's prior representation.
All we are told is Fusco represented Lt. Mos in a disciplinary
matter when he was a patrolman more than ten years ago. The age
of the prior matter and that Lt. Mos had not engaged Fusco since
do not support a current relationship. Rather, the facts show
the attorney-client relationship ended many years ago.
Third, the nature of the prior representation must be
examined. Prior representation, in and of itself, is not
sufficient to justify disqualification. See Bruno, supra, 323
N.J. Super. at 338. Fusco's counsel to Lt. Mos was related to a
departmental disciplinary proceeding. Disciplinary matters
range from tardiness or paperwork flaws to significant breaches
of police policies or violations of the law. See Oches v. Twp.
of Middletown Police Dep't, 155 N.J. 1, 10 (1998) (noting
existence of police disciplinary charges for "absenteeism,
tardiness, conduct unbecoming a police officer, or other off-
duty conduct that is unrelated to the performance of official
duties"). The absence of factual underpinnings describing the
prior representation makes it impossible to determine whether
Fusco's role created "a significant risk" that his
20 A-2943-14T4
representation of defendant "will be materially limited" due to
responsibilities owed to Lt. Mos under RPC 1.9(c)(2), or whether
Fusco obtained knowledge from Lt. Mos which might aid defendant
that he would be prohibited from utilizing. RPC 1.9(c)(1). The
assumption Fusco's prior representation would limit cross-
examination because of ethical proscriptions against
"reveal[ing] information relating to the representation" or the
"use [of] information relating to the representation to the
disadvantage of the former client" are unfounded. RPC 1.9. The
prior relationship may well have revealed no relevant
information with the potential to undermine Lt. Mos' testimony.
The State's reliance on Reardon v. Marlayne, Inc., 83 N.J.
460, 473 (1980), is misplaced. In Reardon, the Court held:
"Where such substantially related matters are present or when a
reasonable perception of impropriety exists, the court will
assume that confidential information has passed between attorney
and former client, notwithstanding the attorney's declarations
to the contrary. The presumption of access to and knowledge of
confidences may not be rebutted." Ibid. (emphasis added). Lt.
Mos and defendant's matters are not substantially related.
Thus, the stated presumption does not arise and we cannot
conclude, as the judge did, Fusco obtained confidential
21 A-2943-14T4
information by the mere fact he long ago represented Lt. Mos in
a matter the facts of which no one recalls.
The judge mistakenly concluded the appearance of
impropriety doctrine remained pertinent based on dicta found in
in Davis, supra, 366 N.J. Super. at 44. When analyzing conflict
assertions, the Court has clearly rejected the doctrine,
stating: "In light of the 2004 amendments to the Rules of
Professional Conduct that eliminated New Jersey's long-standing
prohibition against the appearance of impropriety . . . we hold
that the appearance of impropriety standard no longer retains
any continued validity." Ethics Op. No. 697, supra, 188 N.J. at
552. Conflicts must be actual and not merely appearance based.
On remand, the judge must conduct a detailed review,
thoroughly examining the facts surrounding the prior
representation and determine whether Fusco's prior
representation on behalf of Lt. Mos was limited in scope or
created an actual conflict with his representation of defendant.
Pertinent to this inquiry are findings on whether the nature of
the legal representation support a finding Fusco gained
confidential information during the representation of Lt. Mos,
which could be used to Lt. Mos' detriment during cross-
examination were he to testify in the defendant's criminal case.
See Bruno, supra, 323 N.J. Super. at 333-34. This examination
22 A-2943-14T4
must also consider the likelihood Lt. Mos will be called at
trial, noting the limited extent of his involvement in the
criminal investigation. The State bears the burden of proving
the facts supporting disqualification; the mere proffer of a
witness who will not be called at trial may not be a basis to
disqualify counsel.
Reversed and remanded. We do not retain jurisdiction.
23 A-2943-14T4