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In re State ex rel S.G.

February 14, 2002

STATE OF NEW JERSEY IN THE INTEREST OF S.G.


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Camden County, Docket No. FJ-04-885-02.

Before: Judges Newman, Fall and Axelrad

The opinion of the court was delivered by: Per Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 24, 2002

The State of New Jersey (State), appeals on leave granted by the Supreme Court from an order of the Chancery Division-Family Part, Camden County denying its motion to disqualify the law firm of Sufrin, Zucker, Steinberg, Waller & Wixted and its individual attorneys, Saul Steinberg (Steinberg) and Dennis Wixted (Wixted) (collectively "Sufrin firm"), from representing the juvenile, S.G., in the State's murder prosecution.

The State contends that in a criminal prosecution for murder in which the juvenile has privately retained counsel, a conflict of interest under the Rules of Professional Conduct (R.P.C.) 1.9(a)(2) or an appearance of impropriety under R.P.C. 1.7(c)(2) exists requiring the disqualification of defense counsel where that counsel also represented the murder victim on unrelated criminal charges. We are satisfied the trial judge properly rejected the motion to disqualify where neither of the Rules of Professional Conduct cited were violated. We further conclude the juvenile's Sixth Amendment right to counsel of his choice trumps any nebulous charge of an appearance of impropriety.

I.

The facts are straightforward. Camden County juvenile delinquency complaint number FJ-04-885-02 charged S.G. with purposely or knowingly causing death or serious bodily injury resulting in death by the shooting of Theodore J. Hilton (the victim), in violation of N.J.S.A. 2C:11-3a(1)(2) (murder).

The shooting occurred on August 1, 2001, at Morton Street and Mt. Ephraim Avenue in Camden. According to the testimony of John Grier, an investigator in the homicide unit of the Camden County Prosecutor's Office, a group of people were standing around the corner of Morton Street and Mt. Ephraim Avenue for approximately two hours when a verbal confrontation erupted between a male identified as Woo and a female identified as Shirley. Incensed, Shirley left and returned twenty minutes later with five males, one of whom is alleged to be S.G. The five males descended upon the group and demanded that Woo apologize to Shirley. Woo apologized and the five males retreated. Approximately thirty minutes later, the person alleged to be S.G. returned with a firearm. He shot several times into the group still standing on the corner. The victim suffered a gun shot wound to the neck. The Camden Police reported the incident as an aggravated assault. The police report did not identify the shooter, but described him as five feet five inches and wearing dark clothes. The victim died seven days later in the hospital. On August 8, 2001, the Camden County Prosecutor's office superseded the investigation. The Prosecutor's office conducted an investigation into the shooting and arrested S.G.

On August 13, 2001, the State filed a motion, pursuant to N.J.S.A. 2A:4A-26, for involuntary transfer of the matter to the Law Division for prosecution of S.G. as an adult. The Chancery Division granted that motion on October 23, 2001.

In the interim, on August 14, 2001, Steinberg entered an appearance on behalf of S.G. Concomitantly, the State filed a motion to disqualify the Sufrin firm as defense counsel, alleging that the firm had a conflict of interest in the defense of this case because that firm previously represented the victim in a criminal case, and the firm was currently representing the victim in another criminal case. Apparently, the victim was indicted in 1996 and 2001 on unrelated criminal charges prior to his murder. On September 13, 1996, Steinberg entered an appearance on behalf of the victim. Presumably, the 1996 charges were resolved before August 1, 2001. On May 18, 2001, Wixted entered an appearance on behalf of the victim. The 2001 charges against the victim were pending at the time of the victim's murder. The Camden County Prosecutor's Office was involved in the prosecution of both cases.

On August 16, 2001, the court conducted a hearing and denied the State's motion to disqualify the Sufrin firm. In doing so, the judge had this to say:

I certainly understand the State's position, I understand the defense's position and any time we apply that standard of the appearance of impropriety, I start scratching my head because there are some extremely unclear lines as to what it means to be an appearance of impropriety. I perceive that the ... defendant/juvenile deals with a very fundamental United States Constitution Sixth Amendment Right, and I understand that that right includes the attorney of his or her choosing. I assume that since defense counsel has entered their appearance that in fact, this is the attorney of [S.G.'s] choosing. As such, and the fact that the representation clearly is over, the victim, defense counsel's former client is now obviously deceased, I don't perceive any specific direct conflict. I see ... the appearance issue which again is a vague term. There's very little help in this matter. There seems to be this Needham*fn1, and the Bonnie Richards*fn2 case. As such the Court will simply deny the application at this time and it could be raised at a later point depending on a number of factors, but at this juncture I don't see, conceive that the appearance of impropriety outweighs the fundamental Sixth Amendment right to have an attorney of one's choosing.

The court then proceeded with a probable cause hearing for detention purposes. The State continued to object to the Sufrin firm's representation of S.G.

After the disqualification hearing, the court held a waiver hearing at which time the juvenile and his family waived the potential conflict. The parties have not provided this court with a transcript of that hearing.

On August 20, 2001, the judge entered a written order specifically denying the State's motion to disqualify and denied the State's request for a stay of the proceedings pending an interlocutory appeal. On September 5, 2001, the State filed a motion for leave to file an emergent interlocutory appeal, which this court denied on September 27, 2001. On October 15, 2001, the State filed a motion for leave to appeal with the Supreme Court.

On November 14, 2001, the Supreme Court granted leave to the State to appeal and summarily remanded the matter to this court for consideration of the appeal on the merits. The Supreme Court stayed all further proceedings in the trial court pending resolution of the disqualification issue.

II.

On appeal, the State argues that the Sufrin firm's representation of S.G., when that firm previously represented the murder victim, constitutes a conflict of interest in violation of R.P.C. 1.9(a)(2) (former client) and 1.7(c)(2)(appearance of impropriety). The State maintains that the Sufrin firm's continued representation of S.G. will "place a cloud of doubt on any future proceedings," and will raise questions as to S.G.'s right to effective assistance of trial counsel.

The pertinent provisions of the Rules of Professional Conduct in terms of a lawyer's duty to maintain the confidences of a former client and to avoid conflicts of interest are R.P.C. 1.9(a)(2) and R.P.C. 1.7(c)(2).

Rule 1.9 provides:

(a) A lawyer who has represented a client in a matter shall not thereafter:

(1) represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation with the former client; or

(2) use information relating to the representation to the disadvantage of the former client except as RPC 1.6 would permit with respect to a client or when the information has become generally known. [R.P.C. 1.9]

Rule 1.7 provides the general rule that a lawyer shall not represent a client, without full disclosure to and consultation with the client, if the lawyer believes that representation of that client will be directly adverse to another client, or if the representation of that client may be materially limited by other responsibilities or interests of the lawyer. R.P.C. ...


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