*1 present The nothing suit Hartford is more than an attempt risk, underwrote, to shift which it to the builders and their ground insurers on the that there had not been a “formal” acceptance project by the owner its almost com- Respite plete occupancy prior to the fire. Appellate
I would reverse the Division and reinstate the judgment of the trial court. joins Justice CLIFFORD in this dissent. Justice WILENTZ affirmance—Chief and Justices
For SCHREIBER, PASHMAN, HANDLER and POLLOCK—5. reinstatement—Justices reversal and SULLIVAN and For CLIFFORD—2. PLAINTIFF-APPELLANT, JERSEY, v. GEORGE NEW OF
STATE BELLUCCI, DEFENDANT-RESPONDENT. PETER 22, 1979 Argued January October Decided 1980. *4 General, Zwillman, Deputy Attorney argued the Blair R. Mr. (Mr. Degnan, Attorney J. General of appellant John cause for and Mr. H. attorney; Mr. Blair R. Zwillman Edwin Jersey, New brief). Stern, on the of counsel and respondent the cause for Cassidy argued J. Mr. Harold Cassidy, attorneys). (Messrs. Perkins & by court was delivered opinion The PASHMAN, J. presence of a conflict of us to consider requires
This case whether such conflict representation and in criminal interest The the effective assistance counsel. a defendant denies for sever- prosecution defendant in his represented who until represented also two co-defendants offenses gambling al partner repre- His law guilty pleas. they entered just before joint trial. We hold that in at the another co-defendant sented defendant, potential by waiver of an informed the absence reversal of attorney requires his conflict of interest for a new trial. conviction and a defendant’s Beacon Avenue in premises at 16-18 Surveillance led Gambling Police Unit City by Jersey the New State Jersey m., p. 4:30 Mildred 1973. At about a raid on December drive- were arrested in the and Primas Johnson Commandatore passing paper was observed building after Johnson way of the lottery slips and bag The contained bag to Mrs. Commandatore. pursuant to a premises entered the in cash. The officers $280.50 seated at the Bellucci and found defendant warrant search *5 slips paper containing of the table were On kitchen table. adding an machine and a cello- money, of amounts names and slips. police The arrested and paper more bag filled with phane from Bellucci, person from his and seizing $450 $456 searched table. the kitchen Johnson, and her hus-
Bellucci, and Mildred Commandatore crim- indicted for violations of subsequently were Anthony band lottery. of a operation to the N.J.S.A. pertaining inal statutes 2C:37-2, -3 & 2A:121-3(a), (b), (c) (now superseded N.J.S.A. -4)- Russell, Esq., was also counsel to attorney, John P.
Bellucci’s bargained bid for in their unsuccessful a the Commandatores Galdieri, guilty. Although James A. they pleaded plea and until pleas, they when entered their his first appeared for them Esq., very day. referred to Mr. with them was that Galdieri contact attorney” having repre- and as as “Mr. Commandatore’s Russell negotiations. in earlier sented Mrs. Commandatore trial that of unsuccessfully moved to sever his from Bellucci trial, joint At the Belluc- Johnson, remaining co-defendant. being home was that he knew the Commandatores’ ci admitted he was on the lottery His defense was that purposes. used for to come had asked him premises because Mildred Commandatore brother, friend. hospitalized longtime her over to talk about the Commandatores testi- awaiting sentencing, neither of Still trial, attempt Russell did not attorney fied at Bellucci’s and call them as witnesses. his activities had a also claimed that
Defendant Johnson Esq., McAlevy, Dennis was legitimate purpose. attorney, His prosecutor referred partner. During Russell’s law the trial jury. presence in the to this association charged. Defend- guilty as jury The found both defendants denied, and Russell a new trial was ant Bellucci’s motion for Thereafter, a substitution appeal a notice of on his behalf. filed attorney Bellucci’s naming Mr. Galdieri as was filed record, presented by the of interest issue and the conflict *6 Russell-McAlevy partnership was argued briefed and before the Appellate Division.1 After oral argument, that court on its own expanded motion question the conflict to include consideration prior representation of Russell’s of the Commandatores. trial, ordering
In a new N.J.Super. 165 (1979), 294 the Appel- late Division the differing noted amounts of evidence incrimina- ting respective the defendants. In the court’s view profes- the sional association of Bellucci’s trial attorney with counsel for an “apparently guilty” might co-defendant have swayed jury. the N.J.Super. 165 at 300-301. The Appellate Division concluded “[wjhile that this might circumstance alone not warrant reversal,” when accompanied by prior Russell’s representation of Commandatores, the the aggregate likelihood resulting preju- required dice a new trial. N.J.Super. at 302-303.
The court found obvious potentiality for less than “[t]he thoroughly faithful and undivided attention to defendant’s in * * terests at the time of trial N.J.Super. at 303. Observing that Bellucci’s defense could have been bolstered testimony of either Commandatores, or both the court inferred that the reason for Russell’s failure to call them as witnesses could have been his interest in protecting the Commandatores before their sentencing. The court held that without Bellucci’s waiver of his right independent counsel, to the existence of prejudice would presumed. be The court therefore found that defendant had been denied the effective assistance of counsel. 304; N.J.Super. I, (1947), N.J.Const. par. Art. 10. granted
We
the
petition
State’s
for certification on the con-
flict of interest
(1979).
issue.
The Sixth Amendment to the Federal Constitution and
I,Art.
par. 10 of the
Jersey
New
provide
nearly
Constitution
grounds
Division
1Counsel raised several
and the Appellate
other
on appeal,
accordingly
The State’s petition
dismissed
indictment.
one count of Bellucci’s
issue.
for certification
of counsel
the effective assistance
presents only
language
prosecution
in a
identical
that
criminal
the accused has
the
right
“assistance of counsel” for his defense.2 Mere
provisions
with
compliance
clearly
literal
these
would
frustrate
spirit
right
purpose
and
to counsel. Recognizing this,
Supreme
both
United States
Court and this Court have
repeatedly
guarantee
held that this fundamental
representa
right
See,
tion
means
“effective assistance.”
g.,
e.
States,
Glasser v. United
315 U.S.
62 S.Ct.
In this we are asked to whether case right effective violates defendant’s constitutional to the assist- I, (1947), par. provides part: pertinent 2N.J.Const. Art. in “In all * * * prosecutions right criminal the accused shall have the to have the U.S.Const., VI, provides: assistance of in counsel his defense.” Amend. “In * * * prosecutions, enjoy right all criminal shall the accused to have applies of the Assistance Counsel for his defence.” The Sixth Amendment through process the states the due clause of the Fourteenth Amendment. Wainwright, (1963). Gideon v. 372 U.S. 83 S.Ct. L.Ed.2d 799 anee of counsel. We recently expressed our disapproval joint representation Land, in supra, State v. in which we held that the defense of a against husband and wife charges narcotics by a single attorney deprived the defendants of the effective assist- ance of counsel. Justice Sehreiber’s words bear repeating: representing The inherent in more than difficulty one defendant in a criminal proceeding steering and a course which will the interests of promote but each, which will not be to the detriment of one, any exposes dual infirmity N.J.
representation. [73 30] present amply displays The case this “inherent difficulty” aris- ing joint from two instances representation. We deal first with representation Russell’s of the Commandatores. prior
Russell’s
of the Commandatores
presented a threat
right
to Bellucci’s
to effective counsel that
may
we
not dismiss as harmless. The fact that Russell was no
longer the Commandatores’ attorney of record when they plead
guilty
ed
presumption
does not rebut
that Russell’s effec
in representing
tiveness
Bellucci
impaired.
was
A finding of a
constitutionally suspect
arising
joint
conflict
from
representa
depend
joint
tion does not
on a
trial. See United States ex rel.
Cuyler,
(3d
v.
Cir.1979),
Sullivan
The “inherent
to in Land is
referred
as
it
pretrial stage
joint representa
at the
is when the
present
pervasive practice
plea
at trial. The
bargaining
tion occurs
of
importance
pretrial period
the
of the
in our
highlights
criminal
Geer,
“Representation
Multiple
process. See
Criminal De
Interest and the
Responsibil
fendants: Conflicts of
Professional
Attorney,”
the Defense
62 Minn.L.Rev.
125 (1978).
ities of
effectively
client as to
plea
advise his
what
should
To
be
entered,
to explore
possibilities,
defense counsel must be free
all
Arkansas,
including pretrial negotiations.
Holloway
See
475, 490,
(1978).
The conflict
was not restricted
of the
resentation
Commandatores
during
attorney
which was their
of record. Defendant
he
period
attorney, Russell—had an
therefore his
obvious
Bellucci—and
having
his
the Commandatores corroborate
version of
interest in
home. The
presence at their
Commandatores—Rus-
innocent
equally
an
obvious interest
obtain-
clients—had
sell’s former
testimony
benefit,
for Bellucci’s
lenient sentence. Their
ing a
cross-examination,
resulting exposure to
particularly
and
to the attention
brought
inculpatory evidence
might have
placed
therefore
himself in
sentencing judge. Russell
their
receiving
[position]
respecting
and
confiden-
“impossible
same
assist one defendant and
may
which
harm
tial communications
another,”
representation at trial.
multiple
created
State v.
Land,
The formal termination duty him from his ethical did not release Commandatores Indeed, Russell their and confidences. had a preserve secrets doing anything against continuing obligation to refrain from their Regardless testimony DR of what their interests. 4-101. been, call them as might ethically have could not wit Russell Thus, permission. the eleventh express nesses without their entering for the hour substitution of Galdieri formal *9 pleas nothing Commandatores’ did to remove the burden of Russell’s conflict of interest from Bellucci’s defense.
It potential is therefore clear that for Russell to be less vigorous partisan than a for Bellucci existed continuing in his obligation preserve pretrial confidences and secrets of the Commandatores.
The second source of conflict is found in representa- Russell’s tion of Bellucci at the same trial in which partner his law represented co-defendant Johnson. The question is whether our constitutional guarantee of effective counsel is fully satisfied lawyers partners separately when two who are represent crimi- nal co-defendants. professional
As a matter of
responsibility,
if an at
torney is obligated to decline or withdraw from employment, his
partners may
associates or
accept.
not
In
Opinion
See
re
No.
415,
318,
(1979);
81 N.J.
5-105(D);
DR
Proj.
ABA
on
Justice,
Standards for Criminal
Relating
Standards
to the De
Function,
3.5(b)
fense
(1974) (hereafter
at 123
§
The Defense
Function).
Sound reasons exist for this rule. There
ready
is
access to confidential
information among members of a law
firm. The close
heightens
association of members
the risk of
even inadvertent
partner’s
disclosure. Each
professional knowl
edge is justifiably imputed
firm,
to the
regardless
entire
See,
actual disclosure.
g., Westinghouse
e.
Corp.
Elec.
v. Kerr-
1311,
Corp.,
(7th
McGee
1978),
den.,
580 F.2d
Cir.
cert.
955,
(1979).
U.S.
99 S.Ct.
public confidence in the integrity of the Bar would be eroded if proscribed conduct for one lawyer performed could be by his *10 Note, Responsibility—Conflicts “Professional See partner. (1972).3 Lawyers,” Aid 37 Mo.L.Rev.346 Legal Between Interest 10, 1979, September Governing our Rules note that as of We attorneys individual and law firms prohibit Practice Criminal in a multi-defend- more than one defendant representing from Similarly, R. 3:8-2. permission. without court ant indictment Function, 3.5(b) at the American supra in The Defense § suggests lawyer lawyers that “a or who are Bar Association practice should not undertake to defend more than associated in ** poten- *.” The in the same criminal case one defendant thought interest in such is tial for conflict of “except grave” be “so that it should not be undertaken in which clear indications exist unusual situations” in that no with develop, only conflict will and then defendants’ informed Id. At least one commentator has called for revision consent. Responsibility of Professional “to prohibit ABA Code joint representation by any lawyer in criminal cases individual lawyers practice,” regardless or who are associated in of consent. Lowenthal, Representation “Joint in Criminal Cases: A Critical (1978). Appraisal,” 64 Va.L.Rev. right to counsel is respected
To hold that
when each
defendant,
attorney formally represents only
regard
one
without
professional relationships,
to counsel’s
would run counter to the
obligations imposed
lawyers working
ethical
on
in concert.
It
give
weight
physical presence”
would also
undue
to the “mere
single
a
assessing
in
the effectiveness of counsel. See
489-490,
Holloway Arkansas,
In this case State contest the fact that in a conflict of contrary, Russell was involved interest. On the flagrant disregard a it claims that there was of the canons of However, responsibility. the State contends that professional specific prejudice, a conviction should not be reversed “[a]bsent the same attorney represented on the basis of ‘conflict’ unless disagree than one defendant at trial.” We and adhere more exists, principle potential stated Land: once conflict *11 waiver, presumed will be in the absence of 73 N.J. at prejudice 35, attorneys if are involved the even associated instead of same attorney. presumption
Such a
is necessary
protect adequately
to
the
right
“fundamental
and absolute”
to effective assistance of
States,
76,
counsel.
Glasser v.
See
United
weAs
Protecting rights imposes on both judicial obligation system our process is an interests, procedure lawyers judges. and To secure these situations like that in Land must be followed in outlined counsel—including part- presented same here. Whenever the *12 defendant, one ners or office more than associates—represents explain possible the attorney both the and the trial court must defendant. consequences joint representation to each obligated fully to disclose to Attorneys ethically are possible multiple representation, their clients the not effects 5-105(C); see merely employment. the fact of DR also The Function, supra, 3.5(a), (b) Defense 123. Counsel must at § employment may decline or withdraw from if one client be adversely client. affected of another DR 5-105(B); 2-110(B)(2); 1-102(A)(5). DR see also DR
545 equally obligated protect The trial court is defend rights ants’ to the effective assistance of counsel. When multi involved, ple representation is explored situation must be on the record both to ensure that defendant is aware of the potential proper hazards and to secure a waiver. Glasser v. 457; States, 70, Land, United 315 62 U.S. at S.Ct. State v. 73 297; 35, Green, 164; N.J. at 372 A.2d v. 129 N.J.Super. State at 1181-1182; Dolan, v. 570 United States F.2d United States v. 1053, Carrigan, (2d 1976); 543 F.2d 1055 Cir. United States v. Garcia, 272, (5th 1975); 517 F.2d 278 Campbell Cir. v. United States, 143, 144, 359, U.S.App.D.C. (D.C.Cir. 122 352 F.2d 360 1965). Proj. See also ABA Justice, on Standards for Criminal Relating to the Judge, 3.4(b) Standards Function of the Trial § (1974). at 171
In this case neither the not the trial court has obligation fulfilled its to the defendant.4 We hold that he has been denied the effective assistance of counsel and therefore a required. new trial is recognize
We that our rule amounts to an absolute bar to multiple representation fully unless defendants are advised not problems involved. While other courts have potential interpreting when Amendm to follow this route Sixth chosen ent,5 meaning necessary give we are convinced that it is full only judicial any potential problem 4The indication of awareness of in McAlevy representing Russell and co-defendants is a notation on the case file County stating Hudson in the Clerk’s Office that no conflict existed. 5See, Lawriw, g., 98, (8th 1977), e. United States v. 568 F.2d 103 Cir. cert. den., 969, 1607, (1978); Haggard Alabama, 98 L.Ed.2d U.S. v. 1019, (5th 1977); Rogers, 582, F.2d State Cir. v. 110 Ariz. 521 P.2d Macerola, (Sup.Ct. 1974); People 47 N.Y.2d 417 N.Y.S.2d However, (Ct.App.1979). 391 N.E.2d some courts have held inquiry by sufficient that the absence of trial court into the circum multiple representation, persuasion stances of the burden of will shift to the 1056; government. Carrigan, See United States v. 543 F.2d at Ford v. United *13 of the effective assistance guarantee constitutional
to our State counsel. of apparently permitted Division either Rus Appellate
The at the new trial. This McAlevy represent Bellucci or sell that rep with defendant’s assertion such inconsistent would be right presumptively deprived him of his to the resentation conviction, By his he has com appealing of counsel. assistance obtaining other than himself to counsel Russell or McA mitted levy similarly light conclude that in for new trial. We representation of the Commandatores at the time of Galdieri’s potential guilty pleas, a for conflict of interest exists which their improper represent it for him Bellucci at the new would make trial. modified, judgment Appellate Division is af-
So firmed. J.,
HANDLER, concurring. in by the Court this case. agree the result reached I with circumstances, was the effective Bellucci denied Under involved, was his trial of counsel because assistance conflict, fraught professional with realistically, in a situation represent his client fully he could unlikely which made it that loyalty ex- singleness responsibility and undivided with the Nevertheless, by I attorney. am troubled pected of an effective multiple repre- apparent per categorization to a se resort and a assistance of counsel constituting sentation as ineffective acceptance per of this se right. that The constitutional denial of today as in effect “an categorization, characterized the Court defendants are multiple representation absolute bar to unless involved,” fully ante at is potential problems advised of the is, view, my a sounder and more not warranted. There States, U.S.App.D.C. (D.C.Cir.1967); Lollar v. 346, 348, 379 F.2d States, U.S.App.D.C. United United States v. 247; 376 F.2d at Foster, (1st 1972). F.2d 1, Cir. *14 is, approach, balanced that where potential a conflict of interest is shown generating under circumstances a strong likelihood of prejudice defendant, actual to the presumption the of both an actual of arise, conflict interest prejudice and actual will with prejudice such having not otherwise to be specifically proved. Land, (1977), 73 N.J. Court, relied on here by the State v. 543, supports preferred at ante this approach. In Land, the attorney’s conflict of was potential, interest not but rather was “apparent,” prejudice and the actual to a defendant “obvi was ous.” at 23, 73 N.J. 36. 97 N.J.Super. v. Ebinger, State See court, (App.Div.1967),where reversing the defendant’s convic tion on counsel, the basis of ineffective assistance of found that interest, there had a been “substantial” conflict of a which fact the State had The Ebinger conceded. court noted that the codefendants, trial, “at the time had substantially conflicting interests, and counsel could not serve the best both interests of See, them at the same 97 N.J.Super. time.” at 25. e. g., Green, (App.Div.1974)(“clear” v. N.J.Super. State prejudice multiple due to the representation appeared in the retrial); record and thus necessitated ex U. S. rel. v. Sullivan (3 1979), granted 593 F.2d 519 Cir. Cuyler, cert. sub nom. - U.S. -, Sullivan, 100 S.Ct. Cuyler 62 L.Ed.2d (1979).1 rigidity avoid conditionally presumptive rule would the
Such a
adequate-
It would
resulting from an absolute rule.
necessarily
right
the
ly
protection of
defendant’s constitutional
ensure the
VI;
counsel,
Amend.
N.J.
to effective assistance of
U.S.Const.
decision,
1Subsequent
Supreme
to the date of this
the United Stated
Court
-
-,
Cuyler
decided
v. Sullivan
U.S.
Applying as Bellucci the outcome insofar not alter nevertheless case would was here shown of interest potential A conflict concerned. is strong of actual generating a likelihood under circumstances conflict of interest *15 presumption of actual and The prejudice. created, was presumption which prejudice was therefore actual Bellucci was thus sufficiently denied rebutted. Defendant not counsel, required a new trial is and effective assistance accordingly. J.,
HANDLER, concurring in the result. Justice For as modified—Chief WILENTZ and affirmance PASHMAN, CLIFFORD, SCHREIBER, SULLIVAN, Justices HANDLER and POLLOCK—7.
For reversal—None. AL., PLAINTIFFS, v.
CARTEL CAPITAL CORPORATION ET JERSEY, DEFENDANT-APPELLANT, OF NEW FIRECO INC., ANSUL, DEFENDANT-RESPONDENT. AND RAMSEY, INC., COUNTRY BURGER OF PLAINTIFF-RESPON- CROSS-APPELLANT, JERSEY, DENT AND FIRECO OF NEW DEFENDANT-APPELLANT, AND CROSS-RESPONDENT. 10, 1979 January 1980. Argued on Decided October