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In re Appointment of Counsel to CLM Const. Co.

New Jersey Superior Court, Appellate Division

Decided: November 29, 1994.


On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Before Judges Shebell, Wallace and Kleiner.


[277 NJSuper Page 330]

The opinion of the court was delivered by


Appellant Kathleen F. Gahles, an attorney, pursuant to leave granted, appeals the entry of an order appointing her to serve pro bono as counsel for CLM Construction Co., a New Jersey corporation, which was named as a co-defendant in an Essex County indictment. It appears from the limited record present on this appeal that the counts of the indictment pertinent to CLM Construction Co. were severed from those counts referable to six individual defendants. Gahles, as a pool attorney for the Office of the Public Defender, was named as counsel for one individual, co-defendant Charles Muccigrosso. Muccigrosso was the president and registered agent of CLM. Muccigrosso, appearing as an

[277 NJSuper Page 331]

individual and not in his representative capacity, ultimately entered a plea of guilty and was sentenced on July 12, 1993.*fn1

At Muccigrosso's sentencing, the court sought to clarify the representation as to CLM. The court attempted to order the Office of the Public Defender to assign Gahles as counsel for the corporation; however, Gahles and the Assistant Prosecutor present in court that day informed the court that the Office of the Public Defender does not provide representation to corporations. The record is silent as to the genesis or reason for that policy.*fn2

[277 NJSuper Page 332]

On February 3, 1994, Gahles was informed by letter that the court intended to appoint her to represent CLM pro bono. Gahles communicated with the court on March 9, 1994 and expressed several personal reasons why the contemplated appointment pro bono should be reconsidered. She also appeared in court on March 18, 1994 to reiterate her reluctance to accept the "contemplated" appointment. She was advised that an order designating her as pro bono counsel had been executed on March 15, 1994. The court refused to reconsider that appointment.

Rule 3:27, Assignment of Counsel For Indigent Persons, was adopted following the enactment of the Public Defender Act, N.J.S.A. 2A:158A-1 to -25. The rule provides:

Every person charged with an indictable offense shall be advised by the court of his right to retain counsel and to have the Office of the Public Defender represent him if he is indigent. If the defendant asserts he is indigent, unless he affirmatively states his intention to proceed without counsel, the court shall have him complete the appropriate form prescribed by the Administrative Director of the Courts and shall refer him to the Office of the Public Defender. Such referral to the Office of the Public Defender shall be made as early in the proceedings as possible and whenever practicable before arraignment. The Public Defender or counsel designated or appointed by him shall promptly file his appearance pursuant to R. 3:8. The representation of the defendant by the Office of the Public Defender shall continue through and include any direct appeal from conviction and such post-conviction proceedings or appeal therein as would warrant the assignment of counsel pursuant to court rules.

[R. 3:27-1.]

The court, by its appointment of Gahles as attorney pro bono, failed to adhere to the mandate of R. 3:27-1. The corporation

[277 NJSuper Page 333]

should have been noticed to appear on a date certain by written communication mailed to its last known business address. The incarceration of its president is not sufficient to permit the assumption that the corporation ceased conducting business. Additionally, the court should have compelled, by appropriate writ, the appearance of Muccigrosso to answer questions respecting the corporation's status, its ability to retain counsel and its plan respecting the defense to the indictment.

Assuming the court was satisfied that counsel had to be appointed to represent CLM pro bono, the court was obliged to consider the merits of the personal reasons offered by Gahles why she should not be appointed as counsel. There is merit to the court's desire to appoint Gahles due to familiarity with the entire case based upon her prior representation of Muccigrosso. Nonetheless, "the right to counsel is the right only to the effective assistance of counsel, not to the best counsel." Madden v. Township of Delran, 126 N.J. 591, 599, 601 A.2d 211 (1992) (citing United States v. Rubin, 433 F.2d 442, 444-45 (5th Cir. 1970) (and cases cited therein)), cert. denied, 401 U.S. 945, 91 S. Ct. 961, 28 L. Ed. 2d 228 (1971).

Gahles' personal reasons were well articulated, and it appears that her representation at this time would impose a substantial hardship. CLM, if entitled to counsel, should not be appointed an attorney who cannot, for seemingly legitimate reasons, devote her complete attention to the client's defense. Gahles did not indicate that she was refusing to accept all appointments to represent pro se defendants. Her response to the court was limited to a representation of CLM at this time for the pending criminal indictment. Gahles' pleadings clearly reflect her acknowledgment that "the duty to defend the poor is a professional obligation rationally incidental to the right accorded a small segment of the citizenry to practice law State v. Rush, 46 N.J. 399, 408, 217 A.2d 441 (1966). See also Madden v. Township of Delran, supra, 126 N.J. at 598.

[277 NJSuper Page 334]

We conclude that the court's decision to appoint counsel without prior compliance with R. 3:27-1 and a full inquiry of the corporation or its president was error. Additionally, we conclude that the court's decision to appoint Gahles without an acknowledgment of her written objections or a reconsideration of its appointment of March 14, 1994, when Gahles appeared before the court on March 18, 1994, was improvident.

We reverse the appointment and remand this matter to the Law Division for further proceedings consistent with this opinion.


Reversed and remanded

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