Where there exists an appearance of impropriety in an attorney's representation of a client, the representation must cease. U.S. Const. amend. VI, applicable to the states by U.S. Const. amend. XIV, guarantees that in a criminal prosecution the defendant shall enjoy the right to have the assistance of counsel for his defense. The New Jersey Constitution upholds a similar right. N.J. Const. art. I, par. 10(1947). However, while defendant is entitled to retain qualified counsel of his own choice, he has no right to demand to be represented by an attorney disqualified because of an ethical requirement.
Defendant barricaded himself in a house with a gun and threatened police officers. After defendant surrendered and was leaving the house, defendant threatened several officers on the way to the police station. One count of the indictment charged defendant with threatening the officers. Prior to trial, the state discovered that defense counsel previously represented one of the officers who was scheduled to testify for the State at defendant's trial. The state filed a motion to disqualify defense counsel based upon an appearance of impropriety.
Should counsel be disqualified?
The court granted the state's motion and ordered defense counsel disqualified. The state discovered that defense counsel and the officer had attorney-client relationship for approximately seven years. Based upon such ongoing relationship, the court concluded that there was a high risk of impropriety. The court was required to view the situation from the public eyes, and determined that the situation created an overwhelming appearance of impropriety.