February 8, 2008
IN THE MATTER OF MIDDLESEX COUNTY PROSECUTOR'S OFFICE INVESTIGATION NO. I-07-916
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Investigation No. I-07-916.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued February 6, 2008
Before Judges Cuff and Simonelli.
By leave granted, we address the order of January 23, 2008, disqualifying Patricia Prezioso, Esq. from representing any party in this matter for a period of six months pursuant to R.P.C. 1.11(a)(3). We reverse.
The facts are undisputed. Prezioso was employed as an Assistant Attorney General and Deputy Director of the Division of Criminal Justice of the Office of the Attorney General from May 2002 to September 2007. During her employment, Prezioso had supervisory responsibilities within the Division of Criminal Justice. She never supervised or was assigned to the Prosecutor's Supervision and Coordination Bureau or involved, directly or indirectly, in any matter concerning a County Prosecutor's Office. Prezioso entered private practice on October 1, 2007.
On or about December 7, 2007, seven New Jersey State Troopers were accused of involvement in the sexual assault of a twenty-five-year-old woman. The incident occurred in Mercer County. On December 17, 2007, the trooper, who owns the home where the alleged assault took place, retained Prezioso to represent him in connection with an investigation commenced by the Mercer County Prosecutor.*fn1 Prezioso discussed the case with the Assistant Mercer County Prosecutor in charge of the investigation, and notified the Mercer County Prosecutor that the trooper had retained her to represent him.
On or about December 20, 2007, Attorney General Anne Milgram assigned the investigation to the Middlesex County Prosecutor's Office. On January 10, 2008, the Middlesex County Prosecutor filed a motion to disqualify Prezioso from representing any trooper implicated in the incident for a period of six months from the date of her resignation pursuant to R.P.C. 1.11(a)(3). The motion judge granted the motion.
We first address Prezioso's contention that the judge's ruling violates her client's Sixth Amendment*fn2 right to choose counsel. Although a defendant's Sixth Amendment right to counsel does not attach until arraignment, State v. Tucker, 265 N.J. Super. 296, 320 (App. Div. 1993), aff'd, 137 N.J. 259 (1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 751, 130 L.Ed. 2d 651 (1995); see also State v. A.O., 397 N.J. Super. 8, 22, 26-27 (App. Div. 2007) (a Sixth Amendment right to counsel does not attach in the investigative stage of a criminal matter, unless the defendant is induced to make binding decisions concerning subsequent trial strategy, such as stipulating to the taking, admissibility and reliability of a polygraph), here a person's attorney of choice has been disqualified from representing him. This presents an issue of great consequence, which compels us to grant leave to appeal and review the rationale for the disqualification.
The judge disqualified Prezioso under R.P.C. 1.11(a)(3) because she is a former government attorney representing a private client who is under investigation by the Middlesex County Prosecutor's Office as a suspect in the alleged sexual assault. The judge reasoned that because of the Attorney General's supervisory authority of and close relationship with the Middlesex County Prosecutor's Office, "there is a sufficient nexus between the two for the purposes of R.P.C. 1.11(a)(3) and that the interest of Prezioso's client are materially adverse to both the Prosecutor's Office and the Attorney General in as much as both worked together . . . to represent the interest of the State." The judge focused on the public's perception of impropriety and rejected evidence that Prezioso was never employed by, or involved, directly or indirectly, in any matter concerning a County Prosecutor's Office; had no connection whatsoever to the investigation while she worked for the Attorney General's Office; and left her employment with the Attorney General's Office prior to the alleged sexual assault. This was error.
As a former State employee, Prezioso is governed by N.J.S.A. 52:13D-17 and R.P.C. 1.11. Our Supreme Court has held that the restrictions imposed by N.J.S.A. 52:13D-17 apply to attorneys formerly employed by the State and "need not yield to the conflicting commands of R.P.C. 1.11." In re Advisory Comm. on Prof'l Ethics Opinion 705, 192 N.J. 46, 57 (2007). The Court directed "the [Professional Responsibilities Rules Committee] to draft, for the Court's consideration, a proposed rule in harmony with N.J.S.A. 52:13D-17." Id. at 58.
N.J.S.A. 52:13D-17 is more restrictive than R.P.C. 1.11. The statute imposes a permanent disqualification on former State employees as follows:
No State officer or employee or special State officer or employee, subsequent to the termination of his office or employment in any State agency, shall represent, appear for, negotiate on behalf of, or provide information not generally available to members of the public or services to, or agree to represent, appear for, negotiate on behalf of, or provide information not generally available to members of the public or services to, whether by himself or through any partnership, firm or corporation in which he has an interest or through any partner, officer or employee thereof, any person or party other than the State in connection with any cause, proceeding, application or other matter with respect to which such State officer or employee or special State officer or employee shall have made any investigation, rendered any ruling, given any opinion, or been otherwise substantially and directly involved at any time during the course of his office or employment. (Emphasis added.)
R.P.C. 1.11 provides, in relevant part:
(a) Except as law may otherwise expressly permit, and subject to RPC 1.9, a lawyer who formerly has served as a government lawyer or public officer or employee of the government shall not represent a private client in connection with a matter:
(1) in which the lawyer participated personally and substantially as a public officer or employee, or
(2) for which the lawyer had substantial responsibility as a public officer or employee; or
(3) when the interests of the private party are materially adverse to the appropriate government agency, provided, however, that the application of this provision shall be limited to a period of six months immediately following the termination of the attorney's service as a government lawyer or public officer.
Under the statute and the rule, Prezioso is not disqualified from representing any trooper implicated in this matter. She did not make any investigation, render any ruling, or give any opinion in connection with the investigation of the alleged sexual assault, and she was not otherwise substantially and directly involved at any time in the investigation during her employment with the Attorney General's Office. In fact, the incident giving rise to the investigation occurred more than two months after her resignation as an Assistant Attorney General. The statute and the rule neither expressly nor implicitly incorporate an appearance of impropriety standard. Moreover, there are no facts by which Prezioso's representation of her client can be considered materially adverse to the interests of the State. R.P.C. 1.11(a)(3).