On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Michels, Baime and Wallace. The opinion of the court was delivered by Baime, J.A.D.
This appeal presents questions concerning the scope of an attorney's duty owed to a former client in a criminal case. Over defendant's vigorous objection, the attorney who represented him in prior bail proceedings was permitted to defend his codefendant at their joint trial where their defenses were mutually antagonistic. Both defendants were convicted. We hold that defendant's former lawyer should have been disqualified from representing the codefendant. Under these circumstances, we need not inquire as to whether defendant was specifically prejudiced by the attorney's conflict of interest. Instead, prejudice will be presumed. We reverse.
On July 25, 1989, Detective James Lynam of the Palisades Interstate Parkway Police Department was on routine patrol when he noticed an automobile with a defective license plate light being driven in an erratic fashion. After activating his overhead lights, the officer observed both the front and rear passengers lean forward in a furtive manner. Despite the detective's order to remain in the automobile, the driver, Victor Andrews, exited the vehicle and volunteered that his license had been suspended. The front passenger, Granville Dehaney, then attempted to alight from the car, speaking in a rambling and excited manner. Both he and the rear passenger, defendant Paul Sanders, were removed from the automobile. Illuminating the right rear passenger area with a flashlight, the detective observed a plastic bag containing a white powdery substance in close proximity to where defendant had been seated. It is undisputed that the bag, which was confiscated by the officer, contained a large quantity of cocaine. An additional bag containing
cocaine was retrieved from Dehaney after he attempted to discard it.
All three individuals were indicted for second degree possession of cocaine with intent to distribute (N.J.S.A. 2C:35-5a(1); N.J.S.A. 2C:35-5b(2)) and third degree possession of cocaine (N.J.S.A. 2C:35-10a(1)) and were tried jointly. We need not describe in detail the defenses offered by the defendants at trial. Suffice it to say, the defenses were mutually antagonistic, each blaming the other for the presence of cocaine in the car. Sanders testified that he was invited to accompany Andrews who was driving Dehaney to New York City. While in the City, Andrews and Dehaney allegedly exited the automobile, leaving defendant in the rear seat, and returned after briefly conversing with an Hispanic male. According to defendant, he first realized drugs were in the car when Andrews and Dehaney attempted to conceal the bag after they noticed they were being pursued by the police. Andrews' testimony was substantially similar, except he claimed that it was defendant and Dehaney who exited the automobile and later returned with drugs. Dehaney's account was more elaborate. While he conceded that he purchased a small amount of cocaine for his own use, he claimed that Sanders was the instigator, inquiring where he could buy drugs. Dehaney testified that defendant purchased a large quantity of cocaine for $1,400 and that this was the substance found by the police after Andrews' car had been stopped.
All three defendants were convicted and sentenced on the count charging possession of cocaine with intent to distribute. Each defendant filed a separate appeal, raising different arguments. We deal here only with defendant Sanders' claim that the trial court erred in permitting the attorney who represented him in prior bail hearings to serve as Andrews' trial counsel.
Prior to trial, defendant's trial counsel, a private attorney assigned by the Public Defender's Office, moved to disqualify
Andrews' lawyer, Wakely Paul, from participating in the case. In support of his application, defendant noted that Paul had previously been assigned to represent him and had filed and argued a motion to reduce bail on his behalf. Defendant contended that he engaged in Discussions with Paul concerning the circumstances surrounding his arrest. Because his position was adverse to that of Andrews, defendant expressed concern that Paul would use against him confidential information that was disclosed in the course of the attorney-client relationship. In response, Paul conceded that he had represented defendant in prior bail hearings and had interviewed him for that purpose. However, Paul had no specific recollection of what was actually disclosed to him in his consultations with defendant. The attorney added that he would not use confidential information against defendant in the event he were to recall it during the course of the trial. ...