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July 30, 1980


The opinion of the court was delivered by: SAROKIN

The courts have been deluged with motions for disqualification of counsel in criminal matters where (1) counsel represents two or more defendants in the same matter; and (2) counsel represents a defendant in a matter in which a former client is among the co-defendants and, now, a third category has been added the representation by counsel of a defendant charged with committing a crime against a former client of such counsel. No doubt the foregoing does not represent all mathematical possibilities for such conflicts. All of the foregoing situations and the resultant motions for disqualifications can be avoided by counsel, if they would refuse engagement in matters where a potential for conflict exists. Although not always, such potential is usually apparent from the very first interview.

In some instances, counsel who have guided several persons through pre-indictment stages find themselves in a position of potential conflict when indictments are returned against two or more of such clients. However, it is a rare circumstance when such conflict cannot be foreseen.

 The determination of motions to compel disqualification requires a careful balancing by the court of the defendant's right to the choice of counsel with the ethical problems created. However, no such delicate balance is required by the attorney whose services are sought. He or she can avoid situations creating actual, potential, or the appearance of conflict merely by declining to represent one or more clients under such circumstances.

 One's head may be turned by the entreaties of a client insisting that counsel whose services are sought is the one and only person capable of procuring an acquittal for such client or clients. Counsel should resist such praise and flattery and avoid the problem from the outset by declining to accept such representation where there is actual, potential, or the appearance of conflict.

 There, indeed, may be some instances where the involvement of counsel over an extended period of time may make it impractical to substitute new and unfamiliar counsel. However, that is the exception rather than the rule. In most instances, new counsel can be brought into a matter and adequately represent the interests of the accused. More than one person is competent to perform that function.

 Since counsel has not voluntarily withdrawn, this matter requires the Court to balance a criminal defendant's right to choose particular counsel with the requirement imposed on such counsel to maintain the highest ethical standards of professional responsibility. The issue is whether an attorney representing a defendant charged with a crime should be disqualified because the attorney formerly represented the alleged victim of such crime.

 Plaintiff Davis was president of the board of trustees of the Industry Community Center (ICC) from 1972 until his resignation at the end of May 1977. Mr. Davis is presently a criminal defendant by virtue of two indictments which were returned against him alleging conversion of ICC's corporate assets and obtaining ICC's money or other property by false pretenses during the period of January of 1975 through May of 1976. Shortly after the first indictment was handed down in November of 1978, Mr. Davis engaged Mr. Robert T. Pickett, Esq., to represent him in the criminal matter.

 Prior thereto, Mr. Pickett had been retained as counsel to ICC in August of 1976, to represent ICC in civil matters unrelated to the subject matter of the indictments. When Mr. Davis orally presented to Mr. Pickett the resignation of his presidency of the board of trustees, the remaining trustees requested that Mr. Pickett serve temporarily as acting president, in addition to serving as counsel to ICC, for the limited purpose of calling meetings and maintaining minutes until a new president could be selected. Two months later, in late July, 1977, Mr. Pickett terminated his representation of ICC as counsel and his position as acting president. A year and a half later, after Mr. Davis was indicted, he retained Mr. Pickett as counsel.

 The issue of Mr. Pickett's ability to represent the criminal defendant was first presented to the Superior Court of New Jersey. Cautioning Mr. Pickett not to become a witness, the trial court permitted him to continue his representation of the criminal defendant. One day prior to the scheduled oral arguments on a motion to dismiss the indictments, the State moved to disqualify Mr. Pickett. After oral arguments, the trial court ordered Mr. Pickett's disqualification pursuant to DR5-102, DR5-105 and due to the presence of a conflict of interest. The Appellate Division of the Superior Court of New Jersey affirmed the disqualification "solely because of the probability that counsel may be subpoenaed to testify in the criminal cause. DR5-102." A petition for rehearing was denied as was a petition for certification to the Supreme Court of New Jersey.

 Alleging a deprivation by the State of his constitutional right to counsel of his choice, the criminal defendant brings this cause of action under 42 U.S.C. § 1983. This Court's jurisdiction is pursuant to 28 U.S.C. § 1343(3).

 The criminal defendant (plaintiff in this matter) asserts that the disqualification of Mr. Pickett was unjustified. Plaintiff contends that Mr. Pickett: knows nothing about the subject matter of the indictments except as learned through discovery; received no confidential information related to the indictment during his representation of ICC; represented ICC solely in relation to civil matters completely unrelated to the present criminal action; and did not participate in the underlying investigation of the facts which are the subject matter of the indictment of Mr. Davis. Further, plaintiff contends that Mr. Pickett, in his capacity as acting president, never discussed the propriety or impropriety of the alleged criminal activities of the plaintiff and never received any information concerning the alleged criminal activities.

 The State (defendants in this matter) contends that in light of Mr. Pickett's former representation of the alleged victim and his present representation of the alleged wrongdoer, DR5-102, DR5-105(A) and the presence of a conflict of interest require that Mr. Pickett withdraw as counsel or be disqualified. The State alleges that Mr. Pickett, while in the employ of ICC, may have come into possession of information related to the criminal defendant's alleged wrongdoing and may be a witness in the criminal proceeding. An affidavit has been filed which states that Mr. Pickett, in his capacity as corporate counsel and an officer of ICC, was "definitely present" at a meeting at which plaintiff's involvement in matters related to the charges in the indictment were discussed. It is undisputed that Mr. Pickett was not counsel to ICC or president of the board of trustees during the period of wrongdoing charged in the indictment.

 The Disciplinary Rules, promulgated by the American Bar Association and adopted by the United States District Courts for the District of New Jersey pursuant to Local Rule 6, set forth the standards of professional conduct for members of the bar. It should be noted at the outset that "although the right to counsel is absolute, there is no absolute right to a particular counsel." United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3rd Cir. 1969), cert. denied, 397 U.S. 946, 90 S. Ct. 964, 25 L. Ed. 2d 127 (1970). DR5-102 and DR5-105(A) are consistent ...

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