On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 02-05-0670, 01-09-1201, 01-09-1181.
Before Judges Stern, Lefelt and Payne.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal raises the novel issue of whether a former public defender, Gerald Boswell, now retained by the Office of the Public Defender (OPD) as a pool attorney to represent two defendants in separate capital murder proceedings and another defendant charged with non-capital murder, must be disqualified from that representation because he has sued the OPD and various former and present OPD employees alleging causes of action arising out of his employment premised on violations of the Law Against Discrimination, the Conscientious Employee Protection Act and common-law defamation. In a lengthy and thoughtful opinion, Judge Maria M. Sypek held that Boswell's suit did not give rise either to a conflict of interest or an appearance of impropriety under RPC 1.7. We affirm.
Until his retirement on July 1, 2002, Boswell was employed as an attorney by the OPD, first in Ocean County, and later in Mercer County. During his tenure in Ocean County, disputes arose between Boswell and Robert L. Tarver, Jr., the former Deputy Public Defender for the OPD's Ocean County office, that initially centered around Boswell's perception that Tarver was neglecting his duties as a public defender while he pursued outside activities, including service as a legal commentator for Court TV and The Early Show with Bryant Gumbel. In June 2001, Boswell reported his conclusions to Acting Public Defender Peter A. Garcia, who on June 14, 2001, appointed Assistant Public Defender Regina Sauter and another individual to investigate Boswell's complaints, as well as cross-complaints by Tarver. The investigation resulted in a report, issued in January 2002, that recommended among other things that Tarver be given management training.
On May 1, 2003, Boswell filed a first amended complaint against the OPD, Tarver, Garcia and Sauter alleging that their conduct following Boswell's report of Tarver's alleged misdeeds was retaliatory, created a hostile work environment, and acted to constructively discharge him from his position as an Assistant Deputy Public Defender, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Additionally, Boswell contended that the retaliatory conduct of Sauter and Garcia and their creation of a hostile work environment following Boswell's complaints against Tarver, who was African-American, constituted reverse racial discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Additional causes of action were premised upon an alleged conspiracy between Tarver, Garcia and Sauter to harass Boswell, create a hostile work environment and to constructively discharge him in violation of the CEPA and LAD statutes and upon defamation by Garcia and Tarver arising out of the allegedly false statement that Boswell was romantically involved with a reporter for the Asbury Park Press who reported on events occurring in the Ocean County office of the OPD. Of the three named defendants in Boswell's action, only Sauter remains an employee of the OPD. She has no administrative or other authority over Boswell.
While Boswell was still employed by the OPD and after his transfer from Ocean County to a position in Mercer County, Boswell was assigned to defend capital murder and other charges against James Davis and Michael Gore, as well as non-capital murder charges against Yuri Jones. Following Boswell's retirement, he retained his position as defense counsel in the three cases, first as a per diem attorney and then as a death penalty-qualified pool attorney. A present employee of the OPD, Robert J. Konzelmann, has been assigned by the OPD as co-counsel in the two capital cases.
On May 7, 2003, following institution of suit by Boswell, Joseph E. Krakora, Assistant Public Defender and Director of Capital Litigation for the OPD, wrote to the Mercer County judges to whom the Davis, Jones and Gore matters had been assigned. In those letters, Krakora noted Boswell's suit, and then stated:
I am writing to express the OPD's concern that there is a conflict of interest or an appearance of an impropriety created by Boswell's having sued this agency. Specifically, the OPD questions whether it is appropriate for him to seek compensation from this office as outside counsel while suing it, whether it can effectively oversee his handling of this case for fear of further claims of retaliation by him, and whether such an arrangement would compromise the representation of this client by creating a conflict of interest or an appearance of an impropriety. Accordingly, the OPD believes that his case should be reassigned unless all of the following occurs:
1) The Court determines that there is no conflict of interest or appearance of an impropriety.
2) The prosecutor does not seek Mr. Boswell's disqualification.
3) The client consents to his continued representation after full disclosure.
Upon receipt, one judge explicitly declined to act on the letter, reasoning that any action would require the issuance of an advisory opinion. No response was issued by the other two judges.
Thereafter, the State moved to disqualify Boswell in the three cases in motions that were argued in consolidated proceedings before Judge Sypek in the presence of defendants Jones and Gore. Although as the result of logistical problems defendant Davis was not present, the argument was videotaped, and the videotape was viewed by him in Boswell's presence. Following oral argument, Judge Sypek issued a written decision and order denying the State's motion. Additionally, prior to the issuance of her opinion, Judge Sypek conducted a detailed examination of Davis, Jones and Gore to determine their understanding of the basis for the State's motion and the State's arguments. In response to questions by the court, all three indicated orally that they understood the nature of the arguments presented, they had no further questions regarding them, and they wished Boswell to continue as their attorney. A specific waiver was not requested from any of the three.
Following issuance of the court's opinion and order, the State moved before us for leave to appeal, which we granted, holding oral argument both on the motion and on the appeal itself. In both instances, the OPD was invited to participate as amicus in the proceedings, and it declined. An invitation to the Office of the Attorney ...