[261 NJSuper Page 203] Hypothesize the following: three individuals (Alpha, Bravo, and Charlie)*fn1 are arrested and charged with possession of a controlled dangerous substance seized from an automobile in
which all three were riding. Bravo, in the absence of her attorney, gives a statement to Alpha's attorney, exculpating Alpha, but implicating herself.
Alpha's attorney, in an attempt to secure a favorable plea bargain for her, provides the statement to the County Prosecutor who now seeks to use it against Bravo. The issue, of some novelty, is as follows: may the State utilize the statement of a defendant taken in violation of the Rules of Professional Conduct?*fn2 The rules that this issue implicates are as follows:
MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR-7-104(A)(1)
MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.2
COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL.
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR-7-104(A)(2)
MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.3
DEALING WITH UNREPRESENTED PERSON.
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers' role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
Defendant Monique McCoy ("Bravo" hereinabove) argues that the statement obtained by co-defendant's counsel is violative of either R.P.C. 4.2 or R.P.C. 4.3 and therefore should be suppressed. Assuming arguendo that defense counsel for Melody Grant ("Alpha" hereinabove) did violate a disciplinary rule, defendant's motion to suppress the statement must nonetheless be denied.
When evidence is obtained in violation of the Rules of Professional Conduct, the decisional law that is of guidance in this and other jurisdictions dictates in favor of admission. State v. ...