For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Schreiber, J.
The central issue is the propriety of one attorney representing two defendants charged with the same crimes. Ted and Joan Land, husband and wife, were each indicted for possession of more than 25 grams of marihuana, possession of cocaine, and possession with intent to distribute those substances. Mr. Land was found guilty of all counts. Mrs. Land was found guilty of the possession charges, but not of the possession with intent to distribute. The Appellate Division affirmed. 136 N.J. Super. 354 (1975). We granted certification, 69 N.J. 390 (1976).
About 6:00 A.M. on July 26, 1972, five detectives, armed with a search warrant, went to the defendants' one family house at 832 E. Blancke Street, Linden, New Jersey. Mr. Land had already left for work, but Mrs. Land was home and permitted the detectives to enter and search the house. In the master bedroom, the detectives discovered a metal box and a gram scale in a closet, and some tinfoil packets of cocaine and a bag of marihuana in a dresser. They also found a pipe useable for marihuana, a strainer and two measuring spoons. When Mrs. Land said she had no key to the box, the officers broke it open and found over 500 grams of cocaine and 175 grams of dextrose.
One attorney represented both defendants throughout the trial. Aside from disputing the identity and definitional quality of the controlled dangerous substances, the defense attempted to establish Joan Land's innocence and inferentially her husband's guilt. She was the only defense witness and she sought to exculpate herself by claiming that she was unaware of the metal box in the closet. She maintained that the closet was exclusively used by her husband. A detective testified that Joan Land had stated that she did not possess the key to the metal box before it was broken open. She said that she knew nothing of the existence of the marihuana and tinfoil cocaine packets found in the dresser drawers which she asserted were used by her husband alone. She denied knowledge of any of the other
narcotic related items and claimed the spoons and strainer were a part of her kitchen utensils. Since she stated that only her four infant children and husband resided in their house, her testimony obviously inculpated her husband.
Nothing in the record indicates that the defendants were advised by their attorney or the trial court of the potential conflict in engaging one attorney to defend them. It was not until the appeal had been filed that separate attorneys were retained. The Appellate Division did not reject the claim that the parties were entitled to and should have been represented by separate counsel, but held that no harm resulted because "[t]here is nothing in the record which would suggest that separate counsel would have achieved another result." 136 N.J. Super. at 358.
The Sixth Amendment to the Federal Constitution, which is applicable to the States by virtue of the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), requires that in a criminal prosecution the "accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." The New Jersey Constitution contains almost identical language. Art. I, par. 10.*fn1
Mere literal compliance, that is representation by an attorney, may not be enough to satisfy these constitutional mandates. The constitutional right to the "assistance of counsel" contemplates that the attorney's position as an advocate for his client should not be compromised before, during or after trial. In representing more than one defendant, where divergent or conflicting positions may exist, an attorney's representation will probably not be as effective
as it might have been if he had one client.*fn2 The inherent difficulty in representing more than one defendant in a criminal proceeding and in steering a course which will promote the interests of each, but which will not be to the detriment of any one, exposes the infirmity of dual representation.
Furthermore, the principle of attorney-client confidentiality imposes the inviolability of a sacred trust upon the attorney. It has been said that the right to counsel "would be meaningless if the defendant were not able to communicate freely and fully with the attorney." M. Freedman, Lawyers' Ethics In An Adversary System 8 (1975). Representing two defendants involved in the same or related transactions could place the attorney in the impossible position of receiving and respecting confidential communications which may assist one defendant and harm another. Not only does this possibly inhibit the freedom of the client to cooperate completely, it also may curtail the ability of the attorney to be a vigorous partisan for each defendant.
Where the attorney cannot or may not be able to pursue an unrestrained course of action in favor of a defendant because he represents a ...