On certification to the Superior Court, Appellate Division.
(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 Court considers whether an attorney's representation of a juvenile charged with murder in Essex County constituted an intolerable conflict of interest, and therefore was constitutionally ineffective, because the attorney failed to disclose that he also was a criminal defendant being prosecuted by the Essex County Prosecutor's Office.
In May 1995, defendant Mylee Cottle, then seventeen years old, was charged in an Essex County juvenile complaint with murder and related offenses. To defend him, Cottle's family retained Steven Olitsky, Esquire. After a waiver hearing at which Olitsky represented Cottle, the court determined that Cottle would be tried as an adult.
During the initial meeting with Cottle and his family in June 1995, Olitsky did not inform them that an Essex County grand jury had returned an indictment against him earlier that year charging him with stalking and contempt for violating a restraining order. In April 1996, with the consent of the Essex County Prosecutor's Office, a judge admitted Olitsky into the Essex County Pretrial Intervention Program (PTI) for a period of three years. PTI enables an eligible defendant to avoid prosecution by receiving supervisory or rehabilitative treatment and, if the defendant completes the program successfully, the charges are dismissed. The terms of Olitsky's PTI program included that he report to the Essex County Prosecutor's Office if there was a change in his psychiatric treatment and that his mental health provider submit to the Prosecutor's Office quarterly reports describing Olitsky's treatment status. Olitsky also was required to submit to the PTI program and the Prosecutor's Office a signed acknowledgement by each of his clients demonstrating their awareness of his PTI participation. Neither the PTI program nor the Prosecutor's Office received a signed acknowledgment demonstrating that Cottle or his family knew about Olitsky's PTI status.
On December 9, 1996, the first day of Cottle's murder trial, the Disciplinary Review Board recommended that this Court suspend Olitsky from the practice of law for three months for violating the Professional Rules of Conduct. Olitsky did not inform Cottle about the ethical problems that he was facing and instead proceeded to defend Cottle at trial. The jury found Cottle guilty on all counts of his indictment. In respect of the murder count, Cottle was sentenced to life imprisonment with thirty years of parole ineligibility. The Appellate Division affirmed the conviction, and this Court denied Cottle's petition for certification.
In December 2001, Cottle filed a petition for post-conviction relief (PCR) based on claims of ineffective assistance of counsel. He also filed a motion for a new trial based on newly-discovered evidence. With regard to the ineffective assistance of counsel claim, Cottle maintained that Olitsky did not disclose his own criminal indictment or the professional discipline that he was facing at the time of the trial. Cottle argued that Olitsky was distracted and intimidated from providing an effective defense by the Prosecutor's investigation of his own conduct, failed to effectively consult with Cottle before trial, failed to contact alibi witnesses, and erroneously advised Cottle not to testify under the mistaken belief that his juvenile record could be used to impeach him. Cottle also presented evidence of Olitsky's extensive ethics history, his psychiatric treatment during the time he represented Cottle, his ultimate disbarrment, his failure to successfully complete the PTI program, and his readmission into PTI as part of a global plea deal with the Essex County Prosecutor's Office.
In April 2005, the PCR judge denied the application and the motion for a new trial, finding in relevant part that Olitsky's errors or omissions did not constitute ineffective assistance of counsel. The Appellate Division affirmed.
HELD: An attorney has a per se conflict of interest when both the attorney and the client are simultaneously under indictment in the same county and are being prosecuted by the same prosecutor's office. Without an informed waiver made in court and on the record, prejudice will be presumed, rendering the representation ineffective. The undisclosed conflict in this case denied the juvenile the effective representation of counsel guaranteed to him under Article I, Paragraph 10 of the New Jersey Constitution and he is entitled to a new trial.
1. The paramount obligation of every attorney is the duty of loyalty to his or her client. In representing an individual charged with a crime, the attorney must never be perceived as having a reason to curry some personal favor with the prosecutor's office at the expense of the client. The Rules of Professional Conduct specifically prohibit a lawyer from representing a client if there is a significant risk that the representation will be materially limited by a personal interest of the lawyer. The sole exception to the rule is when the client gives informed consent, confirmed in writing, after full disclosure and consultation. (Pp. 19-20).
2. When Olitsky was retained, he did not mention that he was under indictment and was being prosecuted by the Essex County Prosecutor's Office. While under indictment, Olitsky represented Cottle at a juvenile waiver hearing. His adversary in that matter was the same adversary in his own case. Although Olitsky gained admission into PTI with the consent of the Prosecutor's Office prior to Cottle's trial, the indictment continued pending Olitsky's completion of the PTI conditions, which included keeping the Prosecutor's Office abreast of his psychiatric treatment and submitting to the Prosecutor's Office signed acknowledgements by his clients confirming their awareness of his PTI participation. In addition, the Prosecutor's Office had the power to institute proceedings to terminate Olitsky from the PTI program if, in its view, he violated the terms. Because Olitsky was under indictment and subject to prosecution during the entire period of his representation of Cottle, there was a significant risk that the representation was materially limited by his personal interest in charges pending against him and by his dependency on the Essex County Prosecutor's Office during the period he was enrolled in the PTI program. A defense attorney at the mercy of the very prosecutor's office trying his client for murder has a conflict of interest. (Pp. 20-23).
3. Both the United States Constitution and the New Jersey Constitution guarantee every person accused of a crime the right to the effective assistance of counsel. Under our State Constitution, effective counsel is an attorney who represents his client with undivided loyalty, unimpaired by conflicting interests. Ordinarily, a conflict must be evaluated and, if significant, a great likelihood of prejudice must be shown to establish constitutionally defective representation of counsel. However, this Court has found a per se conflict on State constitutional grounds in cases in which attorneys were involved in simultaneous dual representations of co-defendants. In those cases, prejudice was presumed in the absence of a valid waiver, and the convictions were reversed. As the Court recognized, when an attorney cannot or may not be able to pursue an unrestrained course of action in favor of a defendant because he represents a co-defendant, his effectiveness of counsel has been hampered. The restraints placed on the attorney's advocacy and independent judgment in such cases, along with the fact that the harmful effects of a conflict will not ordinarily be identifiable on the record, warrant a per se conflict rule. (Pp. 23-29).
4. The logic of the per se rule in dual representation cases is equally applicable to the facts of this case. Once Olitsky was indicted and even after his admission into PTI, he might have been counting on the kindness of the Essex County Prosecutor's Office. This predicament may have adversely affected his defense of Cottle. Without a presumption of prejudice, the Court would be left to speculate whether Olitsky's own criminal jeopardy was related to the pre-trial and trial lapses recited by Cottle. Although a convicted defendant is not entitled to a new trial merely because his attorney could have tried a better case, he should not need to wonder whether his fate was sealed because his attorney's duty of zealous advocacy was compromised by fear for his own well-being. (Pp. 29-31).
5. Without credible evidence that Cottle was advised of Olitsky's pending indictment or his PTI status, the Court cannot conclude that the conflict was waived. For a valid waiver in a case such as this, the defendant must be informed in court and on the record. Then the defendant must knowingly, intelligently, and voluntarily agree to proceed with a conflict-tainted attorney. In addition, the attorney must avow that despite the conflict he reasonably believes that he will be able to provide competent and diligent representation to the client. (Pp. 31-32).
6. In summary, an attorney who is contemporaneously under indictment in the same county as his client and is being prosecuted by the same prosecutor's office is engaged in a per se conflict of interest. The calculus does not change if the attorney is in a PTI program in the same county where his client is charged with an indictable offense. Because Olitsky's representation of Cottle constituted a per se conflict, and because Cottle did not waive the conflict, prejudice is presumed. The Court concludes that Cottle has been denied the effective representation of counsel guaranteed by Article I, Paragraph 10 of the New Jersey Constitution. The Court does not address the other issues raised by Cottle in his PCR application and his new trial motion. (Pp. 32-33).
The judgment of the Appellate Division and defendant's convictions are REVERSED, and the matter is REMANDED for a new trial consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE ALBIN's opinion.
The opinion of the court was delivered by: Justice Albin
In this case, an attorney representing a juvenile charged with murder in Essex County kept secret from his client that he --- the attorney --- had been indicted for criminal stalking in the same county. Indeed, the attorney did not disclose to his client that both simultaneously were criminal defendants being prosecuted by the Essex County Prosecutor's Office. With the consent of the Prosecutor's Office, but unknown to his client, the attorney later gained admission into the Essex County Pretrial Intervention (PTI) Program. Despite his pending indictment and his obligation to report to the Prosecutor's Office as a condition of his enrollment in the PTI program, the attorney continued to represent the juvenile, even through a jury trial. Tried as an adult, the juvenile was convicted of murder.
In this appeal, we must determine whether the attorney's representation of the juvenile constituted an intolerable conflict of interest, rendering that representation constitutionally ineffective and requiring the grant of a new trial. Presented here is the unseemly appearance of an attorney entangled in a conflict that pitted his personal welfare against his professional obligations to his client. We now hold that an attorney has a per se conflict of interest when both he and his client are simultaneously under indictment in the same county and being prosecuted by the same prosecutor's office. Without an informed waiver made in court and on the record, prejudice will be presumed, rendering the representation ineffective. The undisclosed conflict in this case denied the juvenile the effective representation of counsel guaranteed to him under Article I, Paragraph 10 of the New Jersey Constitution and therefore he is entitled to a new trial.
In May 1995, defendant Mylee Cottle, then seventeen years old, was charged in an Essex County juvenile complaint with murder and related weapons offenses. In June 1995, for a fee of $10,000, defendant's family retained Steven Olitsky, Esq., to defend him against those charges. Olitsky did not advise defendant or his family that just three months earlier an Essex County grand jury had returned a six-count indictment against him for third-degree stalking, N.J.S.A. 2C:12-10(c); fourth-degree stalking, N.J.S.A. 2C:12-10(b); and four counts of fourth-degree contempt for violating a restraining order issued to protect his former girlfriend, N.J.S.A. 2C:29-9(b).
In February 1996, after a waiver hearing in the Chancery Division, Family Part, at which Olitsky represented defendant, the court determined that defendant would be tried as an adult in the Law Division, Criminal Part. One month later, an Essex County grand jury returned an indictment charging defendant with purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or -3(a)(2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
In April 1996, with the consent of the Essex County Prosecutor's Office, a Superior Court judge admitted Olitsky into PTI for a period of three years. See N.J.S.A. 2C:43-12 and -13; R. 3:28. PTI is a statewide program that allows eligible defendants charged with first-time, non-violent offenses to avoid prosecution by receiving supervisory or rehabilitative treatment for a period not to exceed three years. N.J.S.A. 2C:43-12(a) and -13(c). If a defendant successfully completes the program, the criminal charges are dismissed. See N.J.S.A. 2C:43-13(d); R. 3:28(c). The terms of Olitsky's admission into the PTI program required him to comply with the restraining order entered against him, to pay restitution to his victim, to have no contact with the victim or her family, and to continue psychiatric treatment "until discharge or referral for other treatment."
Olitsky also was required to report to the Essex County Prosecutor's Office "immediately if there [was] any change in the course of [his] treatment" and to have his mental health provider submit to the Prosecutor's Office "quarterly reports describing [his] treatment status." Most significant to this appeal, Olitsky was obliged to "have each client sign an acknowledgment of his participation in the PTI program" and then to "submit a copy of [the acknowledgment] to the PTI program and to the Prosecutor's Office." Neither the PTI program nor the Prosecutor's Office ever received a signed acknowledgment that Olitsky advised defendant or the ...