STATE OF NEW JERSEY v. K.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

K.S.,

Defendant-Appellant.

__________________________________

Argued May 5, 2014 Decided May 13, 2014

Before Judges Parrillo, Harris, and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-10-01828.

Michael J. Pappa argued the cause for appellant (Rudnick, Addonizio, Pappa & Casazza, attorneys; Mr. Pappa, of counsel and on the brief).

Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent; Ms. do Outeiro, of counsel and on the brief).

PER CURIAM

By leave granted, we review defendant K.S.'s challenge to the Law Division's May 7, 2013 order disqualifying K.S.'s defense attorney Michael J. Pappa. We affirm.

I.

On July 28, 2012, K.S. was arrested and charged with second-degree aggravated sexual assault, N.J.S.A. 2C:14-2(c)(1), and disorderly persons simple assault, N.J.S.A. 2C:12-1(a), for an incident involving L.S., his wife. A Monmouth County grand jury subsequently issued Indictment No. 12-10-01828 charging K.S. with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1).

On August 2, 2012, Pappa advised the Monmouth vicinage Criminal Division Manager that he had been retained to represent K.S. on the charges. On November 26, 2012, at K.S.'s arraignment in the Law Division, Pappa appeared as K.S.'s defense counsel.

According to the State, it learned right after the arraignment that, in 2010, Pappa had represented L.S. in a criminal matter involving domestic violence-related cross-complaints filed between L.S. and K.S. The State's investigation revealed that on November 29, 2010, L.S. was charged with simple assault, N.J.S.A. 2C:12-1(a)(1); criminal mischief, N.J.S.A. 2C:17-3(a)(1); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The putative victim of these offenses was K.S.

K.S. had been Pappa's client since "the early '90s." After the November 29, 2010 charges were made, K.S. accompanied L.S. to Pappa's office whereby K.S. requested that Pappa represent and defend L.S. on the pending charges to protect L.S.'s nursing license. Pappa certified that he informed both K.S. and L.S. that he could not represent both of them simultaneously. Pappa further certified that as part of his initial conference with K.S. and L.S., Pappa "purposely did not ask them what happened during the incident which would have been [his] normal practice." Pappa further averred,

Since neither party wanted to pursue the complaints and neither wished to testify, I had a strong belief that the indictable charges against [L.S.] would be remanded and we would then be in a position to get a dismissal because [K.S.], the victim, was in favor of a dismissal and, as a charged defendant, would have a right not to testify.

Ultimately, Pappa represented L.S., while K.S. appeared pro se on the cross-complaint. The potentially indictable charges against L.S. were downgraded by the Monmouth County Prosecutor's Office on January 29, 2011.1 According to Pappa, he "appeared with [L.S.] in the Middletown Township Municipal Court on March 14, 2011[,] at which time all charges against her were dismissed."2

Pappa also represented L.S. in a subsequent expungement proceeding stemming from the November 29, 2010 charges. On July 21, 2011, the Law Division granted L.S.'s application for expungement.

Separately, James J. Addonizio, a member of Pappa's law firm, had represented L.S. in post-divorce proceedings from 1997 until 2005, with respect to a prior marriage.3

On February 8, 2013, the State moved to disqualify Pappa as K.S.'s counsel. In its certification in support of the motion, and later at oral argument of the motion, the State proffered hearsay statements of L.S., who allegedly stated that she objected to and did not consent to Pappa's representation of K.S. in the present matter.

Pappa, in opposition, certified, "I do not have an independent recollection whatsoever of the facts of the incident between [L.S.] and [K.S.] which formed the basis of the charges filed against her on November 29, 2010, nor do I have any detailed notes from which my lack of memory could be refreshed." However, Pappa did retain notes that he recorded from his initial conference with K.S. and L.S.:

On February 21, 2013, I showed my original notes of the initial conference with [K.S.] and [L.S.] to Mr. Somers and Assistant Prosecutor Peter Boser in a meeting we had in the prosecutor's office. The notes state that the [S.'s] were married for two years with no children. [L.S.] worked as a registered nurse. [K.S.] was an employee of ConEd. The complaints were signed following an argument. The notes I took as "facts" stated:

Argument during night. Both had to go to work. Tensions high, no one got much sleep. Both have stress from different sources.

On May 7, 2013, the motion judge granted the State's application and disqualified Pappa from continuing as K.S.'s attorney. The judge determined that Pappa's prior representation of L.S. "clearly" provided the attorney with "some information" that could compromise the propriety of the case. The judge found that "[t]here's clearly information that was learned that [L.S.] has been involved in a number of domestic situations over the years, it sounds like in her former marriage." Also, the judge was concerned about what would happen "if we have a trial and [Pappa is] representing [K.S.], [and] things don't go well." On this topic, the judge reflected,

And then there becomes a question in [K.S.'s] mind, [w]ell, did Mr. Pappa did he hold back because, you know, the judge put certain parameters on what he could or could not do? Those are things that clearly have issues with regard to appeals and post-conviction relief motions.

Ultimately, in applying principles outlined in State v. Catanoso, 222 N.J. Super. 641, 648 (Law Div. 1987), the motion judge concluded that Pappa's representation of [K.S.] would promote, at the very least, an appearance of impropriety and it "would interfere with the ethical administration of justice."

K.S.'s motion for leave to appeal followed, which we granted on July 2, 2013.

II.

We start with well-established principles. While "[a]n accused is guaranteed the right to the assistance of counsel in a criminal proceeding," and "there is a constitutional presumption in favor of counsel of one's choice," a defendant has no "constitutional right to counsel of his choice." State v. Jimenez, 175 N.J. 475, 484 (2003) (citations omitted). K.S. cannot, for example, "insist on representation by an attorney where there is an actual conflict of interest or an appearance of impropriety." Ibid.

Since "the trust between attorney and client has enhanced importance" in criminal matters, "special vigilance is required because an attorney's divided loyalty can undermine a defendant's Sixth Amendment right to effective assistance of counsel." State ex rel. S.G., 175 N.J. 132, 139 (2003). New Jersey's Rules of Professional conduct, RPC 1.7 and RPC 1.9 in particular, "are designed to assure that, in representing a client, counsel's judgment is not impaired by divided loyalties or other entangling interests." Jimenez, supra, 175 N.J. at 484-85.

An additional counterbalance to a defendant's desire to be represented by the counsel of his or her choice is the court's "independent interest in assuring that conflict-free representation occurs, since the existence of conflict undermines the integrity of the court." State v. Davis, 366 N.J. Super. 30, 38 (App. Div. 2004) (citing S.G., supra, 175 N.J. at 140). This "broader societal interest [in] the integrity of the trial process itself," Jimenez, supra, 175 N.J. at 485, requires potential conflicts of interest to be adjudicated so as to prevent "future unjustified attacks over the fairness of the proceedings," or the potential "reversal of a conviction." Davis, supra, 366 N.J. Super. at 38. It is incumbent on the courts to ensure that parties receive conflict-free representation, and a party's "representation must be 'untrammeled and unimpaired,' [the lawyer's] loyalty undivided." State v. Miller, 216 N.J. 40, 63 (2013) (quoting State v. Bellucci, 81 N.J. 531, 538 (1980)).

On review, an appellate court's "evaluation of an appeal from an order granting or denying a disqualification motion invokes . . . de novo plenary review in light of the fact that a decision on such a motion is made as a matter of law." Twenty-First Century Rail Corp. v. N.J. Transit Corp., 210 N.J. 264, 274 (2012) (citing City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010)). Where, as here, the motion judge had no factual disputes to resolve or credibility determinations to make, and solely legal conclusions to draw, we are not bound by the judge's application of law to the facts or his evaluation of the legal implications of facts. State v. Barrow, 408 N.J. Super. 509, 516 (App. Div. 2009).

In relevant part, RPC 1.7 provides,

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

[(Emphasis added).]

If such a conflict exists, however, the attorney may continue representation if "each affected client gives informed consent, confirmed in writing, after full disclosure and consultation," and "the lawyer reasonably believes that [he or she] will be able to provide competent and diligent representation to each affected client[.]" RPC 1.7(b)(1) and (2). Here, L.S. has not consented to Pappa's representation of K.S.

Rule of Professional Conduct 1.9(a) details an attorney's duties to former clients:

(a) A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.

The proscription of RPC 1.9(a) "'is triggered when two factors coalesce: the matters between the present and former clients must be 'the same or . . . substantially related,' and the interests of the present and former clients must be 'materially adverse.''" Twenty-First Century Rail Corp., supra, 210 N.J. at 273 (quoting Trupos, supra, 201 N.J. at 462). The Court put forth an analytical framework to guide courts in determining whether matters are substantially related:

[F]or purposes of RPC 1.9, matters are deemed to be "substantially related" if (1) the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the former client, or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation.

[Twenty-First Century Rail Corp., supra, 210 N.J. at 274 (quoting Trupos, supra, 201 N.J. at 467).]

This standard protects otherwise privileged communications and requires "a fact-sensitive analysis to ensure that the congruity of facts, and not merely similar legal theories, governs whether an attorney ethically may act adverse to a former client." Id. at 275 (citation omitted).

We can conceive of nothing more "substantially related" than Pappa defending K.S. against L.S.'s accusation of the ultimate domestic violence crime of sexual assault where Pappa previously defended L.S. against K.S.'s domestic violence charges just two years earlier. We cannot predict how the State will proceed in its prosecution of K.S. However, this much is sure: L.S. will be an indispensable witness. She will likely be subject to aggressive and probing cross-examination, and K.S.'s defense counsel ought to be able to pursue a zealous attack without concern that he is privy to as-yet unrealized privileged information. The nature of K.S. and L.S.'s marital relationship is highly relevant to the allegation of K.S.'s sexual assault in the present case. The examination of the parties' relationship will give rise to motive, witness credibility, and factual underpinnings that will subject L.S. to a face-to-face encounter with her former attorney who represented her in a previous case alleging violence.

Furthermore, although the "appearance of impropriety" may no longer be a basis for discipline of a lawyer, it should be considered in connection with the perception of a conflict of interest and a fair trial. Davis, supra, 366 N.J. Super. at 44; see also In re Supreme Court Advisory Comm. on Prof'l Ethics No. 697, 188 N.J. 549, 558 (2006). The appearance of impropriety created by permitting Pappa to represent K.S., and at the same time cross-examine his former client L.S., has a "reasonable basis" in the evidence and is "something more than a fanciful possibility." State v. Loyal, 164 N.J. 418, 429 (2000). Despite his best intentions, Pappa's cross-examination of L.S. will always leave a doubt in the average person's mind whether he tread softly because L.S. was his former client or because of legitimate strategic reasons; similarly, from defendant's perspective, a question will always remain whether aggressive cross-examination could have raised a reasonable doubt of K.S.'s guilt by impairing the credibility of L.S.

Affirmed.

1 On December 14, 2010, Pappa wrote a letter to the Monmouth County Prosecutor's Office indicating that he represented L.S. on the charges, and that "[K.S.] has indicated to me that he does not want to see his wife prosecuted for any of these offenses."

2 On the same date, K.S. pled guilty to an amended charge of disorderly conduct pursuant to a municipal ordinance, and was fined.

3 The State contended that it was Addonizio, not Pappa, who actually appeared with L.S. in the Middletown Municipal Court on March 14, 2011. The discrepancy cannot be cleared up by the record, but it is immaterial to our determination of Pappa's conflict of interest.