May a trial court reject statements by defendants that they waive the right to have an individual attorney and proceed to disqualify counsel who have, to date, represented multiple defendants in this criminal matter? Although there is no reported authority in New Jersey which explicitly so holds, I have concluded that it may for the following reasons.
There are five defendants in this case: Jose Carreaga and Gerardo Pedraza, both of whom are represented by Samuel DeLuca, Esq.; Pablo Bernal, represented by Solomon Lefkowitz, Esq.; Francisco Perez and Lourdes Moreno Perez, both of whom are represented by William Perkins, Esq. A sixth defendant, Guillermo Patino, is a fugitive who remains at large.
Francisco and Lourdes Perez are each charged with conspiracy in the second degree, under N.J.S.A. 2C:5-2; possession of a controlled dangerous substance with intent to dispense or distribute, in the first degree under N.J.S.A. 2C:35-5; possession of a controlled dangerous substance with intent to dispense or distribute in the second degree under N.J.S.A. 2C:35-5; and two counts of possession of a controlled dangerous substance under N.J.S.A. 2C:35-10 in the third degree. Mr. Bernal is charged with one count of conspiracy in the second degree, one count of
possession of a controlled dangerous substance with intent to dispense or distribute the same and on count of possession of a controlled dangerous substance. Messrs. Carreaga and Pedraza are each charged with one count of conspiracy in the second degree. The controlled dangerous substance with which the defendants are alleged to have been involved is cocaine.
Mr. Perkins and Mr. DeLuca have each placed on the record that neither is aware of any conflict of interest in his respective firm representing these defendants in this case and that, of course, in accordance with his ethical responsibilities, each would immediately withdraw from such representation if conflicts were to develop.
R. 3:8-2 provides as follows:
No attorney or law firm shall be permitted to enter an appearance for or represent more than one defendant in a multi-defendant indictment without securing, upon motion brought before the Assignment Judge or his designee upon notice to the prosecuting attorney, permission of the court.
Such motion shall be made in the presence of the defendants sought to be represented as early as practicable in the proceedings so as to avoid delay of the trial. For good cause shown, the court may allow the motion to be brought at any time.
This rule, and the cases decided both prior and subsequent to its adoption in 1979, reflect our courts' continuing concern and sensitivity to the problems which inhere in the representation by one attorney of two or more defendants in the same criminal matter. This continuing concern springs from the recognition that "there is no greater impairment of a defendant's constitutional right to counsel than that which can occur when his attorney is serving conflicting interests. The resulting representation may be more harmful than the absence of a lawyer." State v. Bellucci, 81 N.J. 531, 538 (1980)
"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. 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 infinity of dual ...