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In re Appointment of Counsel to CLM Const. Co.

Decided: November 29, 1994.

IN RE THE MATTER OF THE APPOINTMENT OF COUNSEL TO CLM CONSTRUCTION CO.


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

Before Judges Shebell, Wallace and Kleiner.

Kleiner

The opinion of the court was delivered by

KLEINER, J.A.D.

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

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

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 ...


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