A lawyer generally cannot represent a client if he, or someone else in his office, represents or previously represented a person with an adverse interest under N.J. Ct. R., R. Prof. Conduct 1.7., 1.10, and this is also true when such representation would involve an appearance of impropriety rather than an actual conflict under N.J. Ct. R., R. Prof. Conduct 1.7(c)(2). Further, the lawyer, or office associate, cannot reveal confidential information obtained by the prior representation in order to assist another client under N.J. Ct. R., R. Prof. Conduct 1.6; 1.9(a)(2).
Defendant was charged with murder and was represented by the office of the public defender. The state made an application to dismiss counsel because the same region of the public defender's office was representing the murder victim on another matter at the time of his death. The trial court concluded that there was an appearance of impropriety and disqualified defendant's counsel and directed it to pool the case to outside counsel. Defendant, through the public defender's office, appealed the order. The court remanded for further proceedings.
Should the trial court consider the defendant's desires at the hearing when either the prosecution, defendant or defense attorney raise the question of conflict or appearance of conflict and the trial judge is considering the "competing or differing interests" involved?
The court held that there was a distinction between attorneys practicing within the office of the public defender and defense counsel in private practice, and that the same potential for conflict did not exist. After a review of the record, the court could not conclude that the public defender was precluded from representing defendant. The court remanded for a hearing to address the issue of defendant's desire after full disclosure of the matter.