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State ex rel S.G.

January 27, 2003


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 348 N.J. Super. 77 (2002).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue before the Court is whether a law firm can represent a defendant accused of shooting and killing another of the firm's clients. The Rules of Professional Conduct (RPCs), specifically RPC 1.17, prohibit an attorney from undertaking the representation of a client when that representation will be directly adverse to the interests of another client.

On August 1, 2001, in the City of Camden, an altercation arose between a man identified as "Woo" and a woman identified as "Shirley." Shirley left, but returned twenty minutes later with five men, one of who is alleged to be S.G. The men demanded that Woo apologize to Shirley. Woo complied and Shirley and her five companions left the area. About thirty minutes later, the person alleged to be S.G. returned with a firearm and began shooting into the crowd, hitting Theodore Hilton in the neck.

Hilton lived for seven days after the shooting, dying on August 8, 2001. On that same day, seventeen-year-old S.G. was arrested and charged as a juvenile with purposely or knowingly causing death or serious bodily injury to Hilton, resulting in death. Thereafter, the State moved to transfer the matter to the Law Division in order to prosecute S.G. as an adult.

On August 14, 2001, Saul Steinberg, an attorney with the law firm of Sufrin, Zucker, Steinberg, Waller & Wixted (the Sufrin firm), entered his appearance on behalf of S.G. According to Steinberg, S.G.'s sister asked him to represent S.G. in connection with the shooting charge, and he agreed to do so before learning of the identity of the victim. Steinberg claimed to have had a longstanding relationship with S.G.'s family.

At the time Steinberg entered his appearance on behalf of S.G., Dennis Wixted, Esquire, also of the Sufrin firm, was the attorney of record representing Hilton on a narcotics charge that had been pending in the Law Division since May 18, 2001. The Sufrin firm had represented Hilton in two separate criminal matters over a five-yearperiod. The narcotics charge against Hilton was not dismissed until August 30, 2001, more than three weeks after his death and two weeks after Steinberg had entered an appearance on behalf of S.G.

The State moved to disqualify the Sufrin firm from representing S.G. on the basis of its current and prior representation of Hilton. The trial court denied the motion, finding that the firm no longer represented Hilton since he was deceased. The court did not address further the State's argument that an actual or potential conflict existed by virtue of the firm's representation of both S.G. and Hilton. The trial court, having found no actual conflict, concluded that there was no other conflict-of-interest ground that would support overriding S.G.'s right to counsel of his choice.

On August 20, 2001, the trial court entered its order denying both the motion and the State's request for a stay. The State moved for leave to file an emergent interlocutory appeal, which was denied by the Appellate Division. The State filed a motion for leave to appeal with the Supreme Court, which was granted. The Court remanded the matter to the Appellate Division for consideration on the merits and stayed all further proceedings.

On remand, a divided panel of the Appellate Division affirmed the denial of the State's motion to disqualify. The majority considered the matter one of "successive" representation, concluding that the circumstances presented only a potential conflict that was not sufficiently significant to outweigh S.G.'s right to counsel of his choice, especially in view of the fact that there was no evidence that the Sufrin firm had obtained from Hilton any confidential information relevant to S.G.'s representation.

The dissenting member of the appellate panel would have disqualified the Sufrin firm, finding that continued representation was violative of RPC. 1.7. According to the dissent, an inherent risk of conflict is presented when an attorney represents a defendant accused of committing a crime against another client, specifically when the attorney might be required to cross-exa mine the client/victim.

The Supreme Court granted leave to appeal.

HELD: During the period of dual representation of the victim and S.G., the interests of the two clients were adverse, resulting in a prohibited actual conflict. Accordingly, the law firm may not proceed with the defense of S.G., notwithstanding S.G.'s desire to consent to the representation.

1. A basic responsibility of a lawyer is the duty of loyalty to the client. The ethics rules provide that a lawyer may not represent a client if the representation would be directly adverse to another client. That conflict is imputed to all members of the law firm, disqualifying all if any one would be disqualified. There is only one exception that is inapplicable here. (Pp. 7- 9)

2. In criminal matters, special vigilance is required because an attorney's divided loyalty can affect a defendant's Sixth Amendment right to effective assistance of counsel. In a criminal setting, it is incumbent on courts to ensure that defendants receive conflict-free representation. A defendant's right to hire counsel of his own choosing must yield when an actual conflict is found. (Pp. 9-11)

3. An attorney's responsibility as counsel of record ends when the time expires from which to appeal from a final judgment or order and an attorney cannot withdraw representation in a criminal matter absent leave of court or the client's consent. Thus, until the charges against Hilton were dismissed by court order, the Sufrin firm remained obligated to answer to the court on behalf of Hilton, despite his death. The firm owed a continuing duty of loyalty to Hilton throughout the representation. This was not a successive representation of clients with adverse interests. Rather, members of the Sufrin firm were serving simultaneously as counsel of record for the victim and the alleged assailant for two weeks. The death of one of them does not negate the actual conflict that arose during the simultaneous representation of both men. (Pp. 11-13)

4. The Sufrin firm's fiduciary obligation to Hilton and its obligation to avoid representing another in matters directly contrary to Hilton's interests were not limited to the fact that the charges against S.G. were unrelated. A direct conflict existed given that Hilton had an interest in seeing his alleged attacker brought to justice. Had Hilton survived, he would have been an obvious witness for the prosecution of S.G. or he could have filed a tort claim against S.G. Although Hilton cannot now testify or sue S.G., that does not mean his interests were not adverse to S.G. during the two weeks of dual representation. In view of the actual conflict in this case, as well as the obligation to ensure that S.G. receives a ...

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