                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2943-14T4


STATE OF NEW JERSEY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                         December 21, 2015
v.
                                         APPELLATE DIVISION
DAVID HUDSON,

     Defendant-Respondent.
_______________________________

         Argued October 26, 2015 - Decided December 21, 2015

         Before Judges Lihotz, Fasciale1 and Nugent.

         On appeal from an interlocutory order of
         Superior Court of New Jersey, Law Division,
         Essex County, Indictment No. 14-07-1810.

         Alfred V. Gellene argued the cause for
         appellant (Fusco & Macaluso Partners, LLC,
         attorneys; Mr. Gellene, on the brief).

         Lucille M. Rosano, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (Carolyn A. Murray,
         Acting Essex County Prosecutor, attorney;
         Ms. Rosano, of counsel and on the brief).

     The opinion of the court was delivered by

LIHOTZ, P.J.A.D.




1
     Judge Fasciale did not participate in oral argument.        He
joins the opinion with counsel's consent. R. 2:13-2(b).
      Defendant         David     Hudson,        a     Newark     police     officer,      was

indicted on July 18, 2014, charged with third-degree unlawful

possession        of    a    weapon,      N.J.S.A.        2C:39-5(b);         fourth-degree

aggravated         assault,           N.J.S.A.        2C:12-1(b)(4);          second-degree

possession of a weapon with purpose to use it unlawfully against

another, N.J.S.A. 2C:39-4(a); and official misconduct, N.J.S.A.

2C:30-2(b).        The charges stem from a road rage incident, during

which defendant allegedly followed the victim to his home and

threatened        him    with     a    gun.          Newark    Police     Officers     Thomas

Hernandez and Queen Bates responded to the victim's 9-1-1 call

and   the    Newark         Police     Department        principally         conducted     the

criminal investigation supporting the indictment.

      Defendant         retained       Anthony        Fusco    and   his     firm    Fusco    &

Macaluso Partners, LLC to provide his legal representation.                                The

State moved to disqualify counsel and his firm asserting Fusco

had an actual and apparent conflict of interest because he was

counsel     for    the      New   Jersey      Fraternal         Order   of    Police     Lodge

(FOP),      the    union      representing            Newark     Police      Officers,     and

because Fusco previously represented a Newark officer involved

in the investigation.                  The trial judge agreed and concluded

Fusco was disqualified from serving as criminal defense counsel

because of the apparent conflict, which created an appearance of

impropriety.




                                                 2                                   A-2943-14T4
    On our leave granted, defendant appeals from the January

14, 2015 order memorializing this determination, arguing:

            POINT ONE
            MR. FUSCO'S RELATIONSHIP WITH THE NJFOP DOES
            NOT   DISQUALIFY  HIM   OR  HIS   FIRM  FROM
            REPRESENTATION OF THE DEFENDANT IN THIS
            CASE.

            POINT TWO
            THERE IS NO ACTUAL CONFLICT OF INTEREST IN
            THIS MATTER.

    Following       our    review,         we    reverse         the   order      of

disqualification     and   remand     for       further    proceedings.           We

conclude the facts in this record do not support the judge's

conclusions of an actual conflict of interest.                   We also conclude

the trial judge     erred in grounding his determination                    on the

possible    appearance     of    impropriety.             The     appearance      of

impropriety may not be used as a basis to find a conflict of

interest under RPC 1.7 or RPC 1.9.              In re Supreme Court Advisory

Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 563 n.5, 568

(2006).

    These    undisputed    facts     are    found    in    the    record    of   the

State's    motion   seeking     to   disqualify      Fusco       and   defendant's

response.     Fusco, as counsel for the FOP, represents "member

police officers in administrative, civil and criminal matters

which [arise] out of their duties as police officers."                     Further,

Fusco is a featured columnist for the FOP News Magazine, where




                                       3                                   A-2943-14T4
he   regularly   contributes,   and   is   designated   as    "State    Lodge

Attorney Tony Fusco."      The State averred Fusco's representation

of members of the FOP, who are employed by the Newark Police

Department, precluded his representation of defendant because

the criminal charges were principally investigated by the Newark

Police Department.       The State also suggested Fusco's role as

attorney for the FOP equated to representation of the officer

members, including the officers of the Newark Police Department.

      Additionally, in a supporting certification, an assistant

prosecutor identified ten Newark police officers as potential

witnesses, stating "some of these officers will testify at the

pending trial."       The list included Lieutenant Camilo Mos, who

was present during defendant's videotaped custodial interview,

but neither conducted the interview nor Mirandized defendant.

The State also related Lt. Mos' disclosure he had engaged Fusco

to represent him "in an administrative hearing related to his

employment" ten years earlier.

      These   facts   alone   underlie     the   State's     position    that

Fusco's prior representation of Lt. Mos, and "the representation

of the union itself, which in turn represents or has represented

each of these Newark Police witnesses[,]" constitutes an actual

conflict of interest or at least an appearance of impropriety.

It is noted the State did not provide a certification from Lt.




                                      4                            A-2943-14T4
Mos   detailing     the   nature       of    Fusco's          prior    representation      or

addressing his position on Fusco's representation of defendant.

      Fusco filed a responsive certification, which confirmed he

was under contract with the FOP "to represent member police

officers   in     administrative,           civil       and    criminal      matters   which

arose out of their duties as police officers."                                 Further, he

acknowledged he had been "retained by the []FOP as legal counsel

to    render     advice   to     the        []FOP       Board     of     Trustees[;]"       he

"regularly speak[s] at the []FOP State Convention[;] and [he]

author[ed] articles for their newsletter[]"; however, he was not

designated counsel and officers were free to retain any attorney

they chose.        Fusco also admitted he represented "Lt. Mos in a

Newark Departmental disciplinary hearing," probably when he was

a patrol officer.         However, he had no personal recollection of

the matter, the file was not in the firm's current computer

system,    and    being   over   ten        years       old,    it     was   presumably    in

storage.         Defendant   also      filed        a    certification        waiving     any

alleged conflict Fusco and the firm might have because of the

prior representation of Lt. Mos.

      On January 14, 2015, without benefit of oral argument, the

motion    judge    issued    a   written         opinion        granting      the   State's

motion.    The judge reasoned defendant faced a "significant risk"

his defense would "be materially limited when Fusco" or another




                                             5                                      A-2943-14T4
attorney from his firm was required to cross-examine Lt. Mos.

because    Fusco   had   access   to    information    regarding       Lt.    Mos

"through past recollection of the prior case file," which he

would be precluded from using.          Consequently, to avoid violating

RPC 1.7(a)(2) and RPC 1.9(c), Fusco would engage in a "more

cautious cross-examination than would otherwise be warranted."

    Also,     although    noting       the   appearance      of   impropriety

standard    was    removed   from      the   RPCs     following       the    2004

amendments, the judge nevertheless found the doctrine remained

"a consideration when examining a conflict of interest."                        He

concluded, despite the uncertainty of whether Lt. Mos was a "key

witness,"    the   State's   identification      of    him   as   a    possible

witness was sufficient to lead the public to perceive:

            (1) Lieutenant Mos unfairly aided Defendant
            in order to ingratiate himself with Mr.
            Fusco in case he ever needs Mr. Fusco's
            legal services again; (2) that Mr. Fusco or
            the attorney from his firm appearing at
            trial   did   not   vigorously   cross-examine
            Lieutenant Mos; or (3) that Mr. Fusco or his
            associate would use confidential information
            from    his    earlier    representation    of
            Lieutenant   Mos   during   Lieutenant   Mos's
            cross-examination,    such   as    information
            regarding prior bad acts. See [State v.]
            Needham, 298 N.J. Super. [100,] 104-07 [(Law
            Div. 1996)]. This appearance of impropriety
            presents "a substantial risk of disservice
            to the public interest," as it will both
            undermine the integrity of the Court and
            provide a potential avenue for attacks on
            the fairness of this case. See [State v.]




                                       6                                A-2943-14T4
              Davis, 366 N.J. Super.             [30,]       38,    42-43
              [(App. Div. 2004)].

       Defendant requested leave to appeal from the January 14,

2015   order    directing      Fusco's       disqualification.          We    granted

interlocutory review.

       "[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).       See also State v. Bruno, 323 N.J. Super. 322, 331-

32 (App. Div. 1999).            "Where . . . the trial judge had no

factual   disputes     to    resolve    on    credibility      grounds       and   only

legal conclusions to draw," reviewing courts do not "defer to

the trial judge's findings" or ultimate decision.                     Bruno, supra,

323 N.J. Super. at 331.            The burden rests with the State to

demonstrate     a   disqualifying       conflict    exists.          See     State    v.

Morelli, 152 N.J. Super. 67, 70-71 (App. Div. 1977).

       Consideration of this issue starts with a recognition of a

criminal defendant's right secured by the Sixth Amendment of the

United States Constitution "to have the Assistance of Counsel

for his defence."            U.S. Const. amend. VI.                This fundamental

right must be protected.          State v. Coon, 314 N.J. Super. 426,

432-33    (App.     Div.),    certif.    denied,       157    N.J.     543    (1998).

Additionally,       United    States    Supreme    Court       jurisprudence         has

solidified the principle that a non-indigent defendant's Sixth



                                         7                                    A-2943-14T4
Amendment     right     to    counsel     encompasses      the    right        to   be

represented     by    the    counsel    of   his   choosing,      as     the    Sixth

Amendment "commands . . . that the accused be defended by the

counsel he believes to be best."               United States v. Gonzalez-

Lopez, 548 U.S. 140, 146, 126 S. Ct. 2557, 2562, 165 L. Ed. 2d

409, 418 (2006).       New Jersey's Constitution equally recognizes a

defendant's right to obtain counsel of his or her choosing.

N.J. Const. art. I, ¶ 10.              See also State v. Kates, 426 N.J.

Super. 32, 43 (App. Div. 2012), aff'd, 216 N.J. 393 (2014).

            Where the right to be assisted by counsel of
            one's choice is wrongly denied, . . . it is
            unnecessary to conduct an ineffectiveness or
            prejudice inquiry to establish a Sixth
            Amendment violation.     Deprivation of the
            right is "complete" when the defendant is
            erroneously prevented from being represented
            by the lawyer he wants . . . .

            [Gonzalez-Lopez, supra, 548 U.S. at 148, 126
            S. Ct. at 2563, 165 L. Ed. 2d at 419.]

      While the right to have counsel is resolute, a non-indigent

criminal defendant is not guaranteed his or her choice of any

lawyer.     Certainly, the terms of the relationship must be agreed

between attorney and client.             State v. Jimenez, 175 N.J. 475,

484   (2003).        More    important,      the   scope   of     an     attorney's

representation        remains    restricted        by   the      RPCs.          Ibid.

Accordingly, "[a] defendant's right to choose counsel is also

circumscribed by the court's power to guard against conflicts of




                                         8                                 A-2943-14T4
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.'"             Kates, supra, 426 N.J. Super.

at 45 (quoting Wheat v. United States, 486 U.S. 153, 160, 108 S.

Ct. 1692, 1698, 100 L. Ed. 2d 140, 149 (1988)).                   This squares

with the principle that a defendant's Sixth Amendment right to

effective assistance of counsel mandates counsel provide both

adequate   and     conflict-free   representation.           United    States    v.

Moscony, 927 F.2d 742, 748 (3d Cir.), cert. denied, 501 U.S.

1211, 111 S. Ct. 2812, 115 L. Ed. 2d 984 (1991).                      Thus, "[a]

defense    attorney's       representation     must     be    untrammeled       and

unimpaired, his loyalty undivided."            State v. Bellucci, 81 N.J.

531, 538 (1980) (citation omitted).            See also State v. Cottle,

194 N.J. 449, 463-64 (2008) ("With so much on the line . . . .

[a]n attorney should never place himself in the position of

serving    .   .   .   an   interest   in    conflict    with    his    client's

interest."); State ex rel. S.G., 175 N.J. 132, 139 (2003) ("In

criminal matters, in which the trust between attorney and client

has enhanced importance, special vigilance is required because

an attorney's divided loyalty can undermine a defendant's Sixth

Amendment right to effective assistance of counsel.").




                                       9                                 A-2943-14T4
      Courts have examined allegations of conflict of interest

and    appearance           of    impropriety            arising        from     counsel's

representation         of   current    and    former        clients.       In    State     v.

Galati, 64 N.J. 572 (1974), a case decided prior to the adoption

of the current RPCs, the State sought to disqualify privately

retained defense counsel, alleging he, as the attorney for the

Policemen's Benevolent Association, Local No. 75 (PBA), had a

conflict     of       interest,    and       his        representation         evoked    the

appearance     of      impropriety     because          counsel   maintained      a     close

professional        relationship      with        the    PBA   organization       and     its

members.     Id. at 573-74.           The State had called before the Grand

Jury, and also intended to call at trial, the defendant's patrol

partner, a member of the same PBA lodge as the defendant, which

was the same lodge counsel represented.                     Id. at 573.

      Noting      a    detailed    factual         analysis       was    essential       when

determining           whether     particular            conduct     constituted           the

appearance of impropriety, the Court reasoned:

           when the lawyer of a PBA chapter consults
           periodically   and   intimately   with   its
           membership for the legislative, economic and
           other well-being of the organization and its
           members,   he  acquires,  or   is  generally
           believed to acquire a special status, a
           relationship, a bridge of confidentiality
           and trust which sets him apart from other
           lawyers.

                      . . . .




                                             10                                    A-2943-14T4
                 So . . . when the PBA's lawyer
            undertakes the representation of a private
            cause in which a member of that same PBA is
            destined to testify (on one side or another)
            there is bound to occur a public suspicion
            that the PBA witness will be inclined to
            palliate or vivify his testimony in order to
            accommodate the lawyer who, outside the
            courtroom, is en rapport with and supportive
            of the private and organizational interest
            of the PBA witness.

                 And should the public so believe, and
            thus suspect the outcome of the litigation
            proceeded from undue influence upon the
            policeman's testimony, and not from the
            merits, there is a sure result. The doubts
            thus   engendered  or   suspicions   aroused
            ("these   fellows   all   stick   together")
            impoverish the appearance of justice and
            taint the image of law and its even-handed
            enforcement.

            [Id. at 575-76.]

The Court "appreciate[d] that the views expressed . . . will

preclude a PBA attorney in the future from all representations

in which an officer from the same PBA chapter will be called to

testify.     The sacrifice thus called for seems necessary to the

appearance and substance of justice and good government."         Id.

at 578.     Despite noting a possible appearance of impropriety,

the Court found no actual impropriety occurred and reversed the

trial      judge's   order     of   disqualification,   noting    the

circumstances presented were unique and both parties had equal

access to the proposed witness.      Id. at 578-79.




                                    11                      A-2943-14T4
    After the formal adoption of the RPCs in 1984, the standard

set forth in then RPC 1.7(c) and RPC 1.9 remained clear:

         Attorneys     [were]     disqualified     from
         representing clients not only in cases of
         actual     conflict,     but     also     when
         representation   begets   an   appearance   of
         impropriety.   Thus, multiple representation
         [was] impermissible "in those situations in
         which an ordinary knowledgeable citizen
         acquainted with the facts would conclude
         that   the   multiple   representation   poses
         substantial risk of disservice to either the
         public interest or the interest of one of
         the clients."

         [In re Inquiry to Advisory Comm. on Prof'l
         Ethics Etc, 130 N.J. 431, 433 (1992)
         (quoting RPC 1.7(c)(2)).2]




2
     Prior to amendments to the RPCs in 2004, RPC 1.7(c)(2),
which governs simultaneous representations of clients, stated:

         This rule shall not alter the effect of case
         law or ethics opinions to the effect that:

              . . . .

         (2) in certain cases or situations creating
         an appearance of impropriety rather than an
         actual conflict, multiple representation is
         not   permissible,   that    is,   in    those
         situations    in     which     an     ordinary
         knowledgeable citizen acquainted with the
         facts would conclude that the multiple
         representation poses substantial risk of
         disservice to either the public interest or
         the interest of one of the clients.

With respect to representing former clients, the original
version of RPC 1.9(b) stated "[t]he provisions of RPC 1.7(c) are
applicable as well to situations covered by this rule."



                               12                          A-2943-14T4
      In State v. Bruno, the State advanced a disqualification

argument challenging counsel and his firm's representation of

the   defendant        who    retained       him        because       the     State's       lead

detective in the criminal investigation had previously hired a

member    of   the    firm    to   represent        him    in     a    civil       rights    and

worker's compensation matter.                Bruno, supra, 323 N.J. Super. at

324-25.        The     detective        would       not     consent          to     counsel's

representation arguing he intended to request the firm file an

action reopening his claim.             Id. at 328.

      After a thorough analysis of the facts of counsel's prior

representation, the trial judge rejected the State's argument

contending      representation          of    the        defendant          constituted        a

conflict of interest and created an appearance of impropriety.

Id. at 325.       Following our plenary review, we agreed.                          Ibid.     We

determined the evidence supported the detective was a former and

not   a   current      client      of   the       firm,    no     actual          conflict    in

counsel's former and current representations existed, and the

firm's    prior      representation      of       the    detective          was    limited    in

scope and, therefore, not subject to the same types of risk of

gaining    confidential        information         during       that        representation,

which could be used to the detective's detriment during cross-

examination were he to testify in the defendant's criminal case.

Id. at 334, 337.             Finally, we held an "informed citizen with




                                             13                                       A-2943-14T4
full knowledge of the facts would conclude that there is no

'high risk' of impropriety here" and there is no "reasonable

basis"    to     conclude      "these         facts    create          an   appearance     of

impropriety."          Id. at 337-38.              But see State v. Needham, 298

N.J.    Super.    100,    102,     105-07      (Law     Div.      1996)     (disqualifying

counsel     from       representing       the         defendant         because     of    the

appearance of impropriety as he had previously represented the

chief prosecution witness in an unrelated criminal matter).

       Several other cases examine the propriety of granting the

State's request for a mistrial because of defense counsel's dual

representation, invoking the appearance of impropriety standard.

See State v. Loyal, 164 N.J. 418, 421, 440 (2000) (upholding

entry of mistrial based on the appearance of impropriety where

the     defendant's        lawyer,        a        public        defender,        previously

represented      the     State's    key       witness       on    an    unrelated     charge

although the witness recanted her previous identification of the

defendant); State v. Catanoso, 222 N.J. Super. 641, 647-48 (Law

Div. 1987) (finding the appearance of impropriety doctrine and

an     actual    conflict      disqualified           the        defense    attorney      who

previously       acted    as     special        counsel      for        a   corporate     co-

defendant, with whom the State’s key witness was associated, for

fear     the     attorney      would      disclose,          on        cross-examination,

confidences learned).




                                              14                                    A-2943-14T4
    For      three   decades    following      Galati,       the    Court,     when

examining cases of dual representation, steadfastly emphasized

counsel clearly must avoid impropriety and insisted "'even the

appearance of impropriety' that casts doubt upon the integrity

of the criminal process must be avoided."             In re Milita, 99 N.J.

336, 342 (1985) (quoting Galati, supra, 64 N.J. at 576).                        The

basis of this proscription was the "overriding concern . . . for

maintaining    public     confidence   in    the    integrity      of   the   legal

profession"     because     "appearances      can     be     as    important     as

reality."     Inquiry to Advisory Comm., supra, 130 N.J. at 434

(citing Galati, supra, 64 N.J. at 576).              See also In re Petition

for Review of Op. No. 569 of Advisory Comm. on Prof'l Ethics,

103 N.J. 325, 330 n.4 (1986) ("New Jersey remains one of the few

states to adhere to the 'appearance of impropriety' rule.                        We

have previously noted our disagreement with the ABA's narrower

'approach to disqualification.'") (quoting In re Advisory Op. on

Prof'l Ethics No. 361, 77 N.J. 199, 206-07 (1978)).

    A sea change occurred in 2004, when the RPCs were amended

to eliminate the "appearance of impropriety" provisions from all

RPCs, including RPC 1.7(c) and RPC 1.9(c).                 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"     (Sept.    10,     2003);    Kevin     H.




                                       15                                 A-2943-14T4
Michels,   New     Jersey      Attorney       Ethics--The    Law    of    New    Jersey

Lawyering, § 18:1 at 383 (Gann 2015).                   For a period following

the adoption of the 2004 amendments, an "offhand comment" by the

Pollock Commission,3 stating, "a court may properly consider the

appearance    of    impropriety          as    a   factor   in    determining       that

multiple representation poses an unwarranted risk of disservice

. . . to the interest of the client[,]" created a confusion

regarding the continued viability of the doctrine, despite the

modification of the RPCs.                Michels, supra, § 18:2 at 384-85.

However,   in     2006,     the    New    Jersey     Supreme      Court   ultimately

declared   the     use    of   the   appearance        of   impropriety     doctrine

moribund     by    stating:       "[W]e       hold   that   the    'appearance         of

impropriety' standard no longer retains any continued validity


3
    In 2001,

           the Supreme Court created a Commission to
           review New Jersey's R.P.C.s in light of the
           changes to the Model Rules made by the ABA's
           "Ethics 2000" Commission.       New Jersey's
           Commission,   chaired  by   retired   Justice
           Stewart Pollock and known as the Pollock
           Commission, responded in 2002 with suggested
           revisions to New Jersey's R.P.C.s . . . .
           After a comment period and a public hearing,
           the   Supreme    Court   adopted    extensive
           amendments to the R.P.C.s and the Court
           Rules in November of 2003, to be effective
           on January 1, 2004.

           [Ethics Op. No. 697, supra, 188 N.J. at 554
           (quoting Michels, supra, § 1:2-1 at 5).]



                                              16                                A-2943-14T4
in respect of attorney discipline."                          Ethics Op. No. 697, supra,

188 N.J. at 568.             The Court emphasized the doctrine is not a

factor    to    be       considered       in    determining         whether    a     prohibited

conflict of interest exists under RPC 1.7, 1.8 or 1.9 as its use

"injects an unneeded element of confusion[.]"                          Id. at 562 n.5.

    To the extent the conclusion in Galati was based on an

appearance          of    impropriety          analysis,       it    conflicts       with     the

Court's    direction,          declaring          the    amorphous       and        impractical

appearance of impropriety doctrine may not serve as a basis to

disqualify counsel because of a perceived conflict of interest.

Disqualification            must     be    based        on     an    actual    conflict        or

potential conflict of interest, as now defined by the RPCs.

    RPC 1.7(a) proscribes the simultaneous representation of

clients,       if    the    representation            would    be   directly        adverse   to

another client, stating in pertinent part:

               a lawyer shall not represent a client if the
               representation involves a concurrent conflict
               of interest.      A concurrent conflict of
               interest exists if . . . (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.

RPC 1.7(b) allows affected clients to provide informed written

consent if "the lawyer reasonably believes that [he/she]" can

provide        the        impacted        clients        "competent           and      diligent



                                                 17                                    A-2943-14T4
representation"; "the representation is not prohibited by law";

and the affected clients are not adverse parties in the same

litigation.

         Ethical responsibilities stemming from the representation

of   a    former    client   in   the   course   of    representing         a   current

client is governed by RPC 1.9.             Subsection (c) addresses when a

current     representation        may   conflict      with   a     former       client's

interests, providing:

             A lawyer who has formerly represented a
             client in a matter or whose present or former
             firm has formerly represented a client in a
             matter shall not thereafter:

             (1)   use   information  relating   to   the
             representation to the disadvantage of the
             former client except as these Rules would
             permit or require with respect to a client,
             or when the information has become generally
             known; or

             (2) reveal information relating to the
             representation except as these Rules would
             permit or require with respect to a client.

         Finally,    RPC     1.10(a)    pertains      to     the    imputation         of

conflicts of interest to others, stating:

             When lawyers are associated in a firm, none
             of them shall knowingly represent a client
             when any one of them practicing alone would
             be prohibited from doing so by RPC 1.7 or RPC
             1.9, unless the prohibition is based on a
             personal interest of the prohibited lawyer
             and does not present a significant risk of
             materially limiting the representation of the
             client by the remaining lawyers in the firm.




                                         18                                     A-2943-14T4
       Turning to the facts presented in this matter, the trial

judge found Fusco's role as an attorney for the FOP was not a

basis to require disqualification.              Rather, disqualification was

triggered by "an actual conflict of interest and an appearance

of impropriety."

       In    concluding   the    facts    showed    an   actual   conflict     of

interest, the judge assumed Lt. Mos would testify at defendant's

trial and Fusco's prior representation of Lt. Mos provided him

access to private information, which could not be used or might

impinge a vigorous cross-examination.                These findings are not

supported by the record.

       First, we agree with defendant that Lt. Mos is not a key or

essential State witness based on his disclosed involvement.                    He

did    not   respond   to     the    victim's    call    for   aid,   arrest    or

Mirandize defendant, or actively participate during defendant's

videotaped interrogation.            The facts strongly suggest Lt. Mos'

role    in    the   State's     case     was    merely   tangential,    as     his

participation appears far less significant than the role played

by the officer in Bruno.            Where it is likely Lt. Mos will not be

called at trial because of his limited role in this matter, it

would be improper for the State to seek disqualification merely

as a strategic maneuver.




                                         19                             A-2943-14T4
      Second, the absence of a certification from Lt. Mos speaks

volumes.    His silence along with Fusco's inability to recall the

nature of the prior matter creates a void; no facts show an

actual conflict exists based on Fusco's prior representation.

All we are told is Fusco represented Lt. Mos in a disciplinary

matter when he was a patrolman more than ten years ago.                        The age

of the prior matter and that Lt. Mos had not engaged Fusco since

do not support a current relationship.                  Rather, the facts show

the attorney-client relationship ended many years ago.

      Third,    the    nature     of    the    prior    representation         must    be

examined.       Prior    representation,         in    and    of    itself,    is     not

sufficient to justify disqualification.                  See Bruno, supra, 323

N.J. Super. at 338.           Fusco's counsel to Lt. Mos was related to a

departmental        disciplinary       proceeding.           Disciplinary      matters

range from tardiness or paperwork flaws to significant breaches

of police policies or violations of the law.                       See Oches v. Twp.

of   Middletown      Police     Dep't,    155    N.J.    1,    10     (1998)   (noting

existence      of    police     disciplinary       charges      for    "absenteeism,

tardiness, conduct unbecoming a police officer, or other off-

duty conduct that is unrelated to the performance of official

duties").      The absence of factual underpinnings describing the

prior representation makes it impossible to determine whether

Fusco's     role       created     "a         significant      risk"      that        his




                                          20                                   A-2943-14T4
representation of defendant "will be materially limited" due to

responsibilities owed to Lt. Mos under RPC 1.9(c)(2), or whether

Fusco obtained knowledge from Lt. Mos which might aid defendant

that he would be prohibited from utilizing.                     RPC 1.9(c)(1).           The

assumption       Fusco's     prior    representation           would    limit       cross-

examination          because     of       ethical          proscriptions           against

"reveal[ing] information relating to the representation" or the

"use    [of]    information     relating       to    the    representation         to    the

disadvantage of the former client" are unfounded.                       RPC 1.9.         The

prior    relationship          may    well     have         revealed     no     relevant

information with the potential to undermine Lt. Mos' testimony.

       The State's reliance on Reardon v. Marlayne, Inc., 83 N.J.

460, 473 (1980), is misplaced.                   In Reardon, the Court held:

"Where such substantially related matters are present or when a

reasonable      perception      of    impropriety         exists,    the     court      will

assume that confidential information has passed between attorney

and former client, notwithstanding the attorney's declarations

to the contrary.         The presumption of access to and knowledge of

confidences may not be rebutted."                   Ibid. (emphasis added).              Lt.

Mos    and     defendant's     matters     are      not     substantially       related.

Thus,    the    stated      presumption      does     not    arise     and    we    cannot

conclude,       as    the    judge     did,      Fusco      obtained       confidential




                                          21                                       A-2943-14T4
information by the mere fact he long ago represented Lt. Mos in

a matter the facts of which no one recalls.

       The      judge     mistakenly           concluded       the      appearance         of

impropriety doctrine remained pertinent based on dicta found in

in Davis, supra, 366 N.J. Super. at 44.                      When analyzing conflict

assertions,         the   Court    has     clearly         rejected     the     doctrine,

stating:        "In light of the 2004 amendments to the Rules of

Professional Conduct that eliminated New Jersey's long-standing

prohibition against the appearance of impropriety . . . we hold

that the appearance of impropriety standard no longer retains

any continued validity."            Ethics Op. No. 697, supra, 188 N.J. at

552.    Conflicts must be actual and not merely appearance based.

       On    remand,      the    judge    must    conduct       a    detailed       review,

thoroughly          examining      the     facts        surrounding           the      prior

representation            and     determine            whether         Fusco's         prior

representation on behalf of Lt. Mos was limited in scope or

created an actual conflict with his representation of defendant.

Pertinent to this inquiry are findings on whether the nature of

the     legal       representation       support       a     finding     Fusco       gained

confidential information during the representation of Lt. Mos,

which       could    be   used    to     Lt.    Mos'       detriment    during       cross-

examination were he to testify in the defendant's criminal case.

See Bruno, supra, 323 N.J. Super. at 333-34.                          This examination




                                           22                                       A-2943-14T4
must also consider the likelihood Lt. Mos will be called at

trial,   noting   the   limited   extent   of   his   involvement   in    the

criminal investigation.      The State bears the burden of proving

the facts supporting disqualification; the mere proffer of a

witness who will not be called at trial may not be a basis to

disqualify counsel.

    Reversed and remanded. We do not retain jurisdiction.




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