On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and O'Hern. Dissenting -- Justice Pashman. The opinion of the Court was delivered by O'Hern, J. Handler, J., concurring. Pashman, J., dissenting. Handler, J., concurring in the result.
Defendants, Gregory Bell and Anthony Peguese, were convicted on four counts involving the breaking and entry of an apartment dwelling in Englewood. Their sole ground of appeal is that they were denied the effective assistance of counsel because they were both represented by public defenders from the same office.
The case has the following background. On December 7, 1978, at about 10:30 a.m., a neighbor heard an apartment being ransacked. Her call brought the police to the scene. Another neighbor coming home saw two men walking down the street
carrying "loads of stuff" in their arms including a pair of bright pink pants on a hanger in a plastic bag, a camera and other equipment. This neighbor noticed the police at the victim's apartment and gave them a description of the burglars. Soon thereafter, the police observed two men who fit this description entering an alley. The police apprehended the two defendants, one as he came out of the alley, and the other in a nearby tavern. Found on Peguese were a bottle of perfume, a watch and a gun. Found on Bell was a camera. A stereo, turntable, tape deck, clock and the pink pants were found in the alley. All of the items, with the exception of the gun and the pink pants, were identified as the tenant's property. When the tenant had her film developed she discovered three photos of the alley, one of which pictured a man identified as Peguese.
Defendants were indicted in five counts for breaking and entering with intent to steal contrary to N.J.S.A. 2A:94-1, being armed during commission of same contrary to N.J.S.A. 2A:151-5, larceny of goods having a value in excess of $500 contrary to N.J.S.A. 2A:119-2, receiving stolen goods having a value in excess of $500 in violation of N.J.S.A. 2A:139-1, and possession of a burglary tool in violation of N.J.S.A. 2A:94-3.
The trail of the pink pants did not become a significant trial issue until the State's last witness, a detective, described seeing Bell in a diner at 8:00 a.m. with the pants on a hanger. Both defense counsel objected to the use of previously undisclosed testimony about the morning identification and the pink pants. After a recess both defense counsel moved for a mistrial, alleging for the first time a conflict of interest arising from their office association. Their motions were denied. The defendants were found guilty of all counts except receiving stolen goods. The Appellate Division affirmed the convictions. We granted the defendants' petitions for certification limited to the question of whether prejudicial conflict exists simply by reason of defendants being represented by staff attorneys from the same public defender's office. 87 N.J. 365 (1981). We now affirm.
In State v. Land, 73 N.J. 24 (1977), we held that the defense of a husband and wife against narcotics charges by a single attorney deprived the defendants of the effective assistance of counsel. Justice Schreiber said:
In our opinion the preferable rule is that, in the absence of waiver, if a potential conflict of interest exists, prejudice will be presumed resulting in a violation of the New Jersey constitutional provision guaranteeing the assistance of counsel. Art. I, par. 10. We believe that this principle accords with the Supreme Court's exegesis of the Sixth Amendment. [ Id. at 35].
In response to Land, we adopted R. 3:8-2, effective September 1979, requiring an attorney or law firm to move before trial for permission to represent more than one defendant in a criminal trial.
In State v. Bellucci, 81 N.J. 531 (1981), we held that pretrial representation of several co-defendants by one attorney prevented the attorney from representing any one of them at trial. In addition, we held it an improper conflict for an attorney to represent one defendant while a partner or associate represents other criminal co-defendants.
In Bellucci, the State did not deny the impropriety of such joint representation, but contended that a conviction should not be reversed on the basis of conflict of interest alone, absent a showing of actual prejudice. We disagreed and adhered to the principle stated in Land: once a potential for conflict exists, prejudice will be presumed in the absence of waiver even if associated private attorneys are involved instead of the same attorney. State v. Bellucci, supra, 81 N.J. at 543.
The question in this case is whether the same potential for conflict exists when the attorneys representing the co-defendants are associates in a public defender's office. We hold that the same potential does not exist and that multiple representation by public defenders does not in itself give rise to a presumption of prejudice. We reach this conclusion because, save one,
the principles and policies that underlay the Bellucci holding do not apply here.
In Bellucci we set forth three reasons for presuming a conflict where criminal co-defendants are represented by attorneys from the same private law firm. The first is that all firm members typically have access to confidential information. The second is that the entire firm shares an economic interest in the clients of each individual attorney. The third is that "public confidence in the integrity of the Bar would be eroded if conduct proscribed for one lawyer could be performed by his partner." State v. Bellucci, supra, 81 N.J. at 541.
The second and third reasons for disallowing joint representation by attorneys from the same private firm are closely intertwined. Allowing joint representation by members of the same private firm when the same attorney could not take both cases erodes public confidence primarily because many persons likely will view the two situations as indistinguishable in their benefit to the private firm and its attorneys. Whether one attorney in the firm handles several cases, or several attorneys in the firm each handle one case, the financial benefits to the firm remain the same. In both cases the firm will have an equal incentive to retain defendants as clients in some cases where it disserves the client's interests.
Public interest firms have no financial incentive in retaining the cases of joint defendants who might thereby be prejudiced. As a consequence, the public does not lose confidence in a rule allowing attorneys in the same office to represent joint defendants, even though a single attorney from that office could not handle the cases. Because "the primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State," Branti v. Finkel, 445 U.S. 507, 519, 100 S. Ct. 1287, 1295, 63 L. Ed. 2d 574, 584 (1980), we can expect the public defenders to withdraw from the case whenever joint representation may prejudice their clients. A per se rule requiring counsel from separate offices would therefore
needlessly deprive many defendants of competent local public defenders.
In People v. Robinson, 79 Ill. 2d 147, 37 Ill.Dec. 267, 402 N.E. 2d 157 (1980), the Illinois Supreme Court recently declined to adopt a per se rule of disqualification in cases of multiple representation by a public defender's office. In such instances the Illinois court requires some showing of a conflict of interest before prejudice to the defendant will be found.
We agree and believe this to be the better view, considering all of the factors involved.*fn1 We are satisfied that although the subtle influences that arise from public defenders practicing side by side in the same office may present difficulties in maintaining absolute independence,*fn2 "the inbred adversary tendencies of [public defense] lawyers are sufficient protection." People v. Robinson, supra, 402 N.E. 2d at 162 (quoting ABA Standards, The Defense Function, Commentary at 212-213 (1971)).
In so holding, we are conscious that lawyers employed by legal aid societies and similar other public service offices have generally been held to the same standards as private lawyers. Opinion
126, 91 N.J.L.J. 257 (1968); Opinion 241, 95 N.J.L.J. 717 (1972). Cf. Opinion 440, 104 N.J.L.J. 449 (1979) (law school clinic having prosecutor and defender units must segregate files). See also Estep v. Johnson, 383 F. Supp. 1323 (D.Conn.1974); Borden v. Borden, 277 A.2d 89 (D.C.App.1971); Flores v. Flores, 598 P. 2d 893 (Alaska Sup.Ct.1979).*fn3 For the most part these cases have involved head to head conflict between parties where the issue was actual conflict, not merely the appearance of conflict. Furthermore, and more importantly, the significant policy values at stake here call for standards appropriate to public interest legal practice.
We have repeatedly stressed the importance of the practice of public interest law in our society. Tp. of Mt. Laurel v. Public Advocate, 83 N.J. 522 (1980). Cf. In re Education Law Center, Inc., 86 N.J. 124 (1981) (allowing public corporation with non-lawyer directors to practice law). In In re Advisory Opinion of Professional Ethics No. 361, 77 N.J. 199 (1978), this Court held that an attorney's employment in a prosecutor's office while certain criminal matters were there pending did not disqualify the private law firm with which he subsequently associated from representing parties in those same matters. So long as the former prosecutor had no actual knowledge of, ...