For reversal and remandment -- Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford. For affirmance -- None.
Defendant is a police officer of Edison Township. He stands under indictment in Middlesex County for atrocious assault and battery and misconduct in office, in violation, respectively, of N.J.S.A. 2A:90-1 and N.J.S.A. 2A:85-1, the same apparently growing out of an altercation incident to an attempted arrest of a motorist. At the time, a fellow police officer, Richard Fisher, was working as defendant's partner, and presumably witnessed the events which gave rise to the charges.
Officer Fisher was called to testify before the Grand Jury which indicted his fellow officer, the defendant. His testimony, which is in possession of both sides of the case due to pretrial discovery, is said to be exculpatory or at least favorable to defendant. Nevertheless, the prosecution intends to call him as its witness, in view of his presence at the scene of action underlying the alleged offense. And the State asserts that in such posture, the attorney for the defendant, Anthony L. Mezzacca, a reputable member of the Bar, must nevertheless withdraw from the defense due to the following circumstances.
The defense attorney, privately retained by defendant to represent him on the trial of this indictment, is also an attorney regularly retained by Policemen's Benevolent Association, Local No. 75, of Edison Township (hereinafter Edison PBA) and he is likewise an attorney (the record does not disclose whether singly or one of several) for the New Jersey State Policemen's Benevolent Association, Inc.
(hereinafter State PBA). The State PBA, of which Edison PBA is a member, issues charters to local associations such as Edison PBA, which thereupon become subject to the bylaws of the State organization. The designated role of the PBA attorney (Article XII, Constitution and By-Laws of State PBA) is described as follows:
Article XII, Section 1(a)
The attorney shall advise on all legal matters pertaining to the good and welfare of this association, prepare all legislation and advise and render legal opinions upon request of the President * * *.
These factors would seem to indicate a close professional relationship between the attorney and the PBA organization and its members, particularly on the local level. Officer Fisher and defendant, Officer Galati, are fellow members of Edison PBA.
This coincidence of events caused the trial court, at the prosecution's behest, to oust the defense attorney from his client's case for "conflict of interest," in deference to Ethics Opinions 113 of July 20, 1967, and 196 of February 4, 1971, infra. Defendant sought to appeal from this order of disqualification, and the Appellate Division denied leave to appeal. Our Court granted leave to appeal and heard oral argument for the purpose of final disposition of this limited issue.
The nub of the controversy (with a single exception) seems to be well described by the defense version of the "question presented" in the moving papers, as follows:
May an attorney who represents a PBA defend, by private arrangement, a member of that organization, in a criminal matter, when the prosecution, as a matter of trial tactics, declares it shall call as a witness a person who is also a member of the same PBA, when such prospective witness is not the alleged victim, is not the complaining or principal witness, gave prior testimony before a Grand Jury which is favorable to defendant, and would be nevertheless called as a witness for the defense if not called by the state?
Our exception to the question presented: -- we do not assume that the prosecution intends to ...