Counsel Who Represented a State Witness in a Murder Case is Disqualified From Representing the Defendant in That Same Case

State v. Faulcon, 462 N.J. Super. 250 (App. Div. 2020). Judge Koblitz did not leave readers in suspense about the outcome of her opinion for the Appellate Division today. Her first sentence says “We hold that defense counsel who represented a State witness who was questioned in the investigation of a murder may not then represent the defendant in the same case.” The Appellate Division’s ruling today reversed a decision of the Law Division that had found that defense counsel’s former representation of the witness was not directly adverse and did not materially limit counsel’s ability to represent the defendant.

The attorney who later became defense counsel had represented a witness at an interview with prosecutors. The witness was asked to identify his own and certain other telephone numbers that were relevant to the murder. He was also asked if he knew anything about the murder. The witness identified only his own phone number and said he knew nothing about the murder.

The State bore the burden of proving that disqualification was required. The standard of review, Judge Koblitz said, was de novo, with no deference being given to the Law Division’s decision, since there were “no factual disputes to resolve on credibility grounds and only legal conclusions to draw.”

Judge Koblitz quoted Rules of Professional Conduct 1.7 and 1.9 at length. She also cited Opinion 426 of the Advisory Committee on Professional Ethics, a 1979 ruling, which she found “directly on point.” That Opinion concluded that “[t]he witness’ self-interest in cooperating fully, honestly and openly before the grand jury or testifying for the State, conflicts directly with the not too unnatural desire of the attorney in such circumstances to avoid the presentation of any evidence that would embarrass his present defendant.”

Opinion 426 relied on both the appearance of impropriety and “the potential for adversely affecting the administration of justice.” Judge Koblitz noted that the appearance of impropriety “is no longer a valid consideration.” But the risk to the fair administration of justice remained problematic. As Judge Koblitz summarized it:

“Defendant’s right to hire the attorney of his choosing must give way to the public’s right to a fair trial process. The witness’s lack of full cooperation with the State, in not acknowledging whom he spoke to shortly before and after the killing, presents a clear conflict between the witness’ best interest in being fully truthful while under oath and defendant’s interest in an acquittal. How can defense counsel cross-examine the witness while maintaining his confidentiality should he change positions on the stand and further implicate defendant?” Even waivers by both clients would not allow the representation, Judge Koblitz concluded.

Judge Koblitz cited cases from three other jurisdictions that supported the panel’s result. Defense counsel was, accordingly, disqualified.