                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5235-18T1

STATE OF NEW JERSEY,

      Plaintiff-Appellant,             APPROVED FOR PUBLICATION

                                              January 27, 2020
v.
                                           APPELLATE DIVISION
LUCIAN FAULCON,

     Defendant-Respondent.
____________________________

            Submitted December 4, 2019 – Decided January 27, 2020

            Before Judges Koblitz, Whipple and Mawla.

            On appeal from an interlocutory order of the Superior
            Court of New Jersey, Law Division, Union County,
            Indictment No. 19-03-0150.

            Lyndsay V. Ruotolo, Acting Union County Prosecutor,
            attorney for appellant (Michele C. Buckley, Special
            Deputy Attorney General/Acting Assistant Prosecutor,
            of counsel and on the brief).

            Brooke M. Barnett, attorney for respondent.

      The opinion of the court was delivered by

KOBLITZ, P.J.A.D.

      We hold that defense counsel who represented a State witness who was

questioned in the investigation of a murder may not then represent the defendant
in the same case. On leave granted, the State argues that because defense

counsel was present for the witness's interview with detectives, she will be

unable to effectively cross-examine the witness at trial, materially limiting her

ability to represent defendant Lucian Faulcon. The anticipated testimony of the

witness involves his identification of a phone number that the police connected

to defendant and used to trace defendant's whereabouts at the time of the murder.

The trial court found no evidence in the record to support a determination that

defense counsel's former representation of the witness is directly adverse or

materially limits defense counsel's ability to represent defendant, and thus

denied the State's motion to recuse defense counsel. We disagree and reverse.

                                       I.

      On May 19, 2018, Paris Lee was shot and killed behind a nightclub in

Elizabeth. Video footage from the club revealed that at around 2:30 a.m., three

individuals wearing hoods around their faces exited a 2003 Lexus sedan, walked

towards the crime scene, surrounded the victim in the parking lot and shot him.

      The car was registered to defendant's brother. The police located and

searched the Lexus, recovering numerous personal items belonging to

defendant, including prescription medication, a wallet containing identification,




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and bank and insurance cards. Defendant's brother told the police that defendant

drove the Lexus.

       Based on the evidence recovered in the investigation and witness

statements, police identified a cell phone number used by defendant. Using

phone records, police were able to track the whereabouts of the cell phone on

the day of the shooting. Police also found phone numbers in contact with

defendant's phone before and after the shooting. One of those numbers belonged

to the witness, who had spoken to defendant less than an hour before and after

the killing.1

       On November 16, 2018, the witness was interviewed for the first time by

detectives at the Union County Prosecutor's Office, after which he was served

with a subpoena to testify before a grand jury. The witness appeared to testify,

but was dismissed after he admitted to being under the influence of marijuana.

       The day before the witness was next scheduled to testify, attorney Brooke

M. Barnett agreed to accompany the witness to an interview with detectives at

the Union County Prosecutor's Office in lieu of testifying before a gr and jury.

During the interview, the witness was asked to identify his own phone number

as well as additional phone numbers, and was asked whether or not he had heard


1
    We see no need to identify the witness by name.
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anything about the murder of Paris Lee. The witness indicated that he had not

heard anything about the murder and identified his own phone number only.

      Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1);

first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A.

2C:5-2(a)(1); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1); and second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a)(1).

      A month later, Barnett filed a notice of substitution to represent defendant.

In response, the State filed a motion to disqualify Barnett as defendant's counsel.

                                        II.

      "[A] determination of whether counsel should be disqualified is, as an

issue of law, subject to de novo plenary appellate review." City of Atl. City v.

Trupos, 201 N.J. 447, 463 (2010) (citing J.G. Ries & Sons, Inc. v. Spectraserv,

Inc., 384 N.J. Super. 216, 222 (App. Div. 2006)). Where there are "no factual

disputes to resolve on credibility grounds and only legal conclusions to draw,

we are not required to defer to the trial judge's findings." State v. Bruno, 323

N.J. Super. 322, 331 (App. Div. 1999). "The burden rests with the State to

demonstrate a disqualifying conflict exists." State v. Hudson, 443 N.J. Super.

276, 282 (App. Div. 2015).


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      "[A] non-indigent defendant's Sixth Amendment right to counsel

encompasses the right to be represented by the counsel of his [or her] choosing,

as the Sixth Amendment 'commands . . . that the accused be defended by the

counsel he [or she] believes to be best.'" Hudson, 443 N.J. Super at 283 (quoting

United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006)). A defendant's

right to choose counsel is not absolute. State v. Kates, 426 N.J. Super. 32, 45

(App. Div. 2012), aff'd, 216 N.J. 393 (2014). The right to choose counsel is

"circumscribed by the court's power to guard against conflicts of interest, and to

vindicate the court's 'independent interest in ensuring that criminal trials are

conducted within the ethical standards of the profession and that legal

proceedings appear fair to all who observe them.'" Ibid. (quoting Wheat v.

United States, 486 U.S. 153, 160 (1988)).

      The Rules of Professional Conduct on conflicts of interest provide:

            (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.

            (b) Notwithstanding the existence of a concurrent
            conflict of interest under paragraph (a), a lawyer may

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            represent a client if: (1) each affected client gives
            informed consent, confirmed in writing, after full
            disclosure and consultation . . . (2) the lawyer
            reasonably believes that the lawyer will be able to
            provide competent and diligent representation to each
            affected client; (3) the representation is not prohibited
            by law; and (4) the representation does not involve the
            assertion of a claim by one client against another client
            represented by the lawyer in the same litigation or other
            proceeding before a tribunal.

            [RPC 1.7.]

      RPC 1.9 addresses a lawyer's duties to former clients and provides, in

relevant part:

            (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.

            [RPC 1.9(a).]

      Opinion 426 published by the Advisory Committee on Professional Ethics

on May 31, 1979, which is directly on point, addresses the following scenario:

            Defense counsel for a criminal defendant inquires
            whether he may represent the defendant after
            counseling persons subpoenaed to appear before grand
            juries which investigated the crime for which the
            defendant was ultimately indicated [sic]. Witness 1
            was subpoenaed and testified before Grand Jury 1 being
            represented by the inquiring attorney. No indictment
            was returned. Witness 2, advised by the inquirer,

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           refused to answer questions to Grand Jury 2. Shortly
           thereafter, Grand Jury 2 indicted the defendant, who
           engaged the inquirer as defense counsel. Witness 2 had
           previously given the police an oral statement, and after
           indictment the inquirer withdrew from any
           representation of witnesses 1 and 2, and witness 2
           testified before Grand Jury 2 suffering a "lapse of
           memory." Additionally, counsel represents in a civil
           suit a witness 3, who testified before Grand Jury 1.

     The Committee concluded that "[t]he witness' self-interest in cooperating

fully, honestly and openly before the grand jury or testifying for the State,

conflicts directly with the not too unnatural desire of the attorney in such

circumstances to avoid the presentation of any evidence that would embarrass

his present defendant." N.J. Advisory Comm. on Prof'l Ethics, Op. 426 (1979).

The Committee referred to Opinion 278, which cites to Canon 5 of the Code of

Professional Responsibility of the American Bar Association:

           The professional judgment of a lawyer shall be
           exercised, within the bounds of the law, solely for the
           benefit of his [or her] client and free of compromising
           influences and loyalties. Neither his [or her] personal
           interests, the interests of other clients, nor the desires
           of third persons should be permitted to dilute his [or
           her] loyalty to his client. (Emphasis added).

     Opinion 426 further provides:

           Neither the informed consent of the clients, nor the
           disassociation of the inquirer from the potential
           witnesses against his defendant removes the ethical
           objections. The appearance of impropriety would

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            certainly be present were such a representation
            permitted. See ABA Comm. on Professional Ethics and
            Grievances, Opinion 16 (1929). Here, the appearance
            of the lawyer representing the defendant and a potential
            witness against the defendant in a homicide makes the
            comments of Opinion 278 particularly applicable.

            In commenting upon former Canon 6 of the Canons of
            Professional Ethics (predecessor to DR 5-101(A),
            supra), Drinker in his Legal Ethics (1953) notes at p.
            105: "even where all parties agree, the appearance of a
            lawyer on both sides of the same controversy,
            particularly in cases of some notoriety, will often give
            an impression to the public which is most unfortunate
            for the reputation of the bar, and which of itself should
            be decisive."

            Aside from the appearance of impropriety, the matter
            has the potential for adversely affecting the
            administration of justice. Thus, such representation
            directly involves the public interest, and is particularly
            improper and undesirable. N.J. Advisory Committee
            on Professional Ethics, Opinion 4, 86 N.J.L.J. 357
            (1963). The Supreme Court of New Jersey in Schear v.
            Elizabeth, 41 N.J. 321, 329 (1964) [(]quoting Ahto v.
            Weaver, 39 N.J. 418, 431 (1963)[)], noted that such
            representation is absolutely barred where a conflict
            affecting the public interest is involved.

            [N.J. Advisory Comm. on Prof'l Ethics, Op. 426 (1979)
            (emphasis added).]

      The prohibition against the appearance of impropriety for attorneys is no

longer a valid consideration.     Hudson, 443 N.J. Super. at 292.        Yet, the

prohibition against impairing the fair administration of justice remains strong.


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See Supreme Court of New Jersey, Administrative Determinations in Response

to the Report and Recommendation of the Supreme Court Commission on the

Rules of Professional Conduct, Commission Comment to RPC 1.7 (Sept. 10,

2003), reprinted in Kevin H. Michels, New Jersey Attorney Ethics, Appendix

A1 at 1250 (2020) (noting that the appearance of impropriety provisions in the

RPCs are no longer appropriate "[b]ecause of their vagueness and ambiguity,"

however, "courts have the independent authority, which they have exercised, to

take corrective action when the risk of improper conflict threatens the

administration of justice.").

      Although no case in New Jersey is directly on point, other jurisdictions

have considered this situation. In People v. Carncross, 927 N.E.2d 532, 534

(N.Y. 2010), the defendant motorcyclist was charged with negligent homicide

and related offenses after a trooper pursuing him at a high rate of speed was

killed in a crash. The disqualification issue arose because one of defendant's

attorneys had represented defendant's father and girlfriend in their grand jury

testimony in the same case. Id. at 535. The father testified that defendant told

him on the evening of the incident that he had almost gotten pulled over by the

police, and the girlfriend reported that defendant had admitted to her that he was

the motorcyclist for whom the police were then searching. Id. at 535–36.


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      The New York Court of Appeals concluded that, although defendant was

willing to waive his right to conflict-free counsel and neither the father nor

girlfriend were ultimately called to testify, the trial court's decision to disqualify

counsel was within its discretion. Id. at 536–37. At the time the decision was

made, those witnesses were expected to testify, and counsel's ethical duty to her

former clients would compromise her ability not only to effectively cross -

examine them, but also to assess defendant's best trial strategy. Id. at 537. The

court reasoned that counsel, "obligated to maintain the confidences of the father

and the girlfriend, might choose the strategy least likely to cause the prosecution

to call them as witnesses, thereby avoiding the need to cross-examine them" at

all. Ibid. All things considered, "[i]t would [have] be[en] difficult to repose

confidence in counsel's single-minded protection of defendant's interests in

these circumstances." Ibid.

      Similarly, in State ex rel. Kinder v. McShane, 87 S.W.3d 256, 258 (Mo.

2002), where the defendant was accused of murdering his mother and then

burning the family's house down, defense counsel previously represented

defendant's father at the father's deposition in the same matter. There, the father

testified to defendant's behavioral problems and the father's own prior

statements to police, including his belief that the defendant had committed the


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crime and that, had the father been home at the time, the defendant would have

killed him as well. Id. at 258–59.

      The Supreme Court of Missouri acknowledged that counsel no longer

represented the father but concluded that the clear conflict presented by

counsel's duties to his former client required disqualification. Id. at 262. The

father was a key witness, would likely give incriminating testimony tracking his

deposition, and had himself no alibi for the murder, necessitating that counsel

impeach or throw suspicion on him, tasks complicated by their former attorney-

client relationship. Ibid. Moreover, the court rejected the notion that "in all but

the rarest cases, once a defendant says that he waives any conflict, the court's

involvement must end." Id. at 263. It explained:

            To the contrary, where the conflict of interest is an
            actual one, or the potential for a conflict of interest at
            trial is a serious one, such as is the case here, then "such
            a waiver, . . . does not necessarily resolve the matter,
            for the trial court has an institutional interest in
            protecting the truth-seeking function of the proceedings
            over which it is presiding by considering whether the
            defendant has effective assistance of counsel,
            regardless of any proffered waiver."

            [Ibid. (quoting United States v. Stewart, 185 F.3d 112,
            122 (3d Cir. 1999)).]

      Lastly, in United States v. Messino, 852 F. Supp. 652, 653–54, 656 (N.D.

Ill. 1994), the defendant, charged with cocaine distribution and a series of

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related offenses, waived his right to conflict-free counsel in order to continue

his representation by an attorney who had represented two witnesses before the

very grand jury that issued his indictment, albeit in a manner that directly

incriminated only his co-defendants. The District Court found that defendant's

waiver had been knowing and voluntary and acknowledged that the witnesses

would not implicate him directly at trial, but nonetheless concluded that

counsel's prior representation of the witnesses would hamper his ability to

effectively conduct cross-examination, significant to his escaping liability in

this conspiracy case. Id. at 656. The conflict thus presented a "compromise of

justice" that could not otherwise be remedied. Ibid.

      For counsel to represent defendant after representing a witness who gave

a statement to the police would impair the fair administration of justice.

Defendant's right to hire the attorney of his choosing must give way to the

public's right to a fair trial process. The witness's lack of full cooperation with

the State, in not acknowledging whom he spoke to shortly before and after the

killing, presents a clear conflict between the witness' best interest in being fully

truthful while under oath and defendant's interest in an acquittal. How can

defense counsel cross-examine the witness while maintaining his confidentiality

should he change positions on the stand and further implicate defendant? The


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fact that both clients waive any conflict in this situation is insufficient. The

likelihood that the clients are united in their desire to see defendant vindicated,

in addition to their inability to envision possible trial scenarios, makes such a

waiver untenable. Defense counsel must be disqualified to ensure the fair

administration of justice.

      Reversed. We do not retain jurisdiction.




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